Respondent: If we as a nation have had fair elections and that we did not disenfranchise so many throughout American history. What exactly is your point, Roger?
My response: Jon, many arbitrary discriminations could be eliminated without judges acting as activist sociology professors. Remember, we’re a nation of laws. Laws rely upon the dictates of some sense of nature and popular sovereignty. For those remaining discriminations, they are evidence of the failure to convince our fellow citizens that they are sufficiently arbitrary. Democracy is the worst system, except for all the others — to borrow a cliche’.
Respondent: Yes, Winston Churchill I believe. But the Constitution must uphold majority rule and minority rights. Just because some swath of society has passed legislation (albiet illegally with respect to disenfranchisement from 1890s to 1908 or so) doesn’t mean that that majority can trample and disregard the rights of minorities, correct? The role of the SCOTUS is to interpret the Constitution and make sure rights and laws do not violate it. We had laws (14th Amendment being the MOST important in my opinion and many others) that were not followed. Thus the Civil Rights movement, etc.
My response: Yes, and those rights can be protected without the recruitment of activist-sociology-professors in black robes. The damage to the law and respect for it is too great for judges to be allowed to fly by the seat of their pants in almost any fashion that excites their fancy. Remember those southern state governments were also activist Democrat governments … just in the pursuit of Jim Crow. Our highest law protects these basic rights and its the clear wording of the law that does so. It may take awhile, but remember that it took nearly 10 years after Brown for the enactment of the ’64 Civil Rights Act. Sometimes it takes awhile for facts on the ground to catch up to our Constitution. But such is human frailty.
Respondent: Roger, Jim Crow was already well entrenched in the South. If by activist southern state governments you mean the Bourbon Democrats sho really controlled the Democratic Party and used the terrorist organizations of the kkk, etc. yes they were activist. Albeit to suppress black voting rights which was law. I would argue that the SCOTUS is needed to balance the other branches of government and make sure that minority rights are being upheld. And you know LBJ only passed the 64 act because of mounting pressure for various civil rights groups who were advocating for the law to be followed.
My response: The Jim Crow South was an extension of the state of “expert”, “elite”, and “scientific” reasoning that arose in the early 19th century. Freshly imbued with Hegel’s philosophy of “progress”, whose dialectic was instrumental to Marx and Darwin, we have the race musings of John C. Calhoun. Race theory continued after Appomattox and supplied the justification for the denial of rights to an entire category of citizens, who were so proclaimed by the 14th Amendment. If SCOTUS was so wise, look at the jurisprudence prior to 1954. Those black-robed “wise men” embossed second-class status on blacks for an additional 4 generations, as well as forcing sterilization on “imbeciles” … in Holmes’s unillustrious phrase. Plus, the damage caused by imperial decree-making outside the law far outweighs any momentary benefit of any individual ruling. The losers in any Article I and Article II election should not have easy recourse to replace a judge’s insight for the voters. If that becomes commonplace, our constitutional republic is dead. Be careful about readily dispensing with popular sovereignty for a yearning for mommy government in a black robe.
And so it goes.
RogerG