15 ms·

The Constitution Is Not a Sometimes Food

1 points by Argothair 10y ago

dalke 10y ago
> On the other hand, if you start making exceptions to the Constitution — even for wonderful reasons, like because you want to ... end school segregation, ... then pretty soon there are enough exceptions that the document doesn’t really mean what it says. The justification for the civil right's laws, including school desegregation, come from the Equal Protection Clause of the 14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Before it was added there was doubt that the Civil Rights Bill of 1866 was constitutional, for the reasons the author pointed out. So Congress since 1868 has some say in the matter. The next part is to establish if segregated schooling is a violation of the Equal Protection Clause. Under Plessy v. Ferguson, the Supreme Court decided that "separate-but-equal" was not unconstitutional. The next step required a decision that "separate-but-equal" was never equal, culminating in Brown v. Board of Education. I therefore see no exception in the Constitution as it a applies to the desegregation of state-run schools. > Constitution says nothing about abortion, or banks, or contraception, or desegregation, or e-mail, or farming, or gay marriage, or heroin, but all of those topics are still heavily regulated by the federal government. One cannot simply say that the Constitution doesn't explicitly consider topic X because the 9th amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." For example, the Constitution does not say that we have a right to privacy. That, combined with the 14th amendment, is the basis for Roe v. Wade (access to abortion) and for Griswold v. Connecticut (access to contraception). Obergefell v. Hodges was decided based on the 14th amendment, after finally deciding there was no overriding legitimate interest of the state to prohibit same-sex marriages.
- Argothair 10y ago
  Thanks for your thoughtful response! Brown v. Board of Education is definitely the most well-supported case of the three, and you might be right; perhaps it's fully justified by the 14th Amendment. I have trouble seeing how the Court got from the reasoning in McLaurin v. Oklahoma State Regents (most professional schools need to be integrated so that minorities can learn their professions from people who are currently working in their field) to the sweeping declaration in Brown that all segregated schools in all circumstances are inherently illegal, but that's a relatively minor quibble, and I should have looked for a better example. The problem with the 9th Amendment argument for rights like privacy is that just because the rights exist doesn't mean the federal government is entrusted with protecting those rights, much less affirmatively defining their scope in cases where the extent of the right is hotly contested. It doesn't make much sense to file a federal lawsuit to stop a state government from implementing state abortion laws that were duly approved a majority of the state's voters, including women. It makes even less sense for the Supreme Court to then lay out (as it did in Roe v. Wade) a detailed regulatory scheme explaining exactly when a fetus should be treated as a person. Even if you approve of Roe v. Wade's trimester scheme, there's no common sense way to get from "Americans probably have some kind of right to privacy" to "According to the Constitution, here's which fetuses are viable." Similarly, I support gay marriage, but I can't find a right to gay marriage in the constitution as it's currently written. The Obergefell court wasn't even pretending to interpret any particular part of the Constitution -- instead, the Court just asserted that "The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution" and that "it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect." If you trust the nine members of the Supreme Court to "exercise reasoned judgment" on behalf of the whole country to figure out what's moral, then that's fine...but that's not a democratic way of doing things.

1 points by Argothair 10y ago

dalke 10y ago

> On the other hand, if you start making exceptions to the Constitution — even for wonderful reasons, like because you want to ... end school segregation, ... then pretty soon there are enough exceptions that the document doesn’t really mean what it says. The justification for the civil right's laws, including school desegregation, come from the Equal Protection Clause of the 14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Before it was added there was doubt that the Civil Rights Bill of 1866 was constitutional, for the reasons the author pointed out. So Congress since 1868 has some say in the matter. The next part is to establish if segregated schooling is a violation of the Equal Protection Clause. Under Plessy v. Ferguson, the Supreme Court decided that "separate-but-equal" was not unconstitutional. The next step required a decision that "separate-but-equal" was never equal, culminating in Brown v. Board of Education. I therefore see no exception in the Constitution as it a applies to the desegregation of state-run schools. > Constitution says nothing about abortion, or banks, or contraception, or desegregation, or e-mail, or farming, or gay marriage, or heroin, but all of those topics are still heavily regulated by the federal government. One cannot simply say that the Constitution doesn't explicitly consider topic X because the 9th amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." For example, the Constitution does not say that we have a right to privacy. That, combined with the 14th amendment, is the basis for Roe v. Wade (access to abortion) and for Griswold v. Connecticut (access to contraception). Obergefell v. Hodges was decided based on the 14th amendment, after finally deciding there was no overriding legitimate interest of the state to prohibit same-sex marriages.

Argothair 10y ago
Thanks for your thoughtful response! Brown v. Board of Education is definitely the most well-supported case of the three, and you might be right; perhaps it's fully justified by the 14th Amendment. I have trouble seeing how the Court got from the reasoning in McLaurin v. Oklahoma State Regents (most professional schools need to be integrated so that minorities can learn their professions from people who are currently working in their field) to the sweeping declaration in Brown that all segregated schools in all circumstances are inherently illegal, but that's a relatively minor quibble, and I should have looked for a better example. The problem with the 9th Amendment argument for rights like privacy is that just because the rights exist doesn't mean the federal government is entrusted with protecting those rights, much less affirmatively defining their scope in cases where the extent of the right is hotly contested. It doesn't make much sense to file a federal lawsuit to stop a state government from implementing state abortion laws that were duly approved a majority of the state's voters, including women. It makes even less sense for the Supreme Court to then lay out (as it did in Roe v. Wade) a detailed regulatory scheme explaining exactly when a fetus should be treated as a person. Even if you approve of Roe v. Wade's trimester scheme, there's no common sense way to get from "Americans probably have some kind of right to privacy" to "According to the Constitution, here's which fetuses are viable." Similarly, I support gay marriage, but I can't find a right to gay marriage in the constitution as it's currently written. The Obergefell court wasn't even pretending to interpret any particular part of the Constitution -- instead, the Court just asserted that "The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution" and that "it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect." If you trust the nine members of the Supreme Court to "exercise reasoned judgment" on behalf of the whole country to figure out what's moral, then that's fine...but that's not a democratic way of doing things.