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But you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning

by zlynx 9y ago

But you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning of a law shouldn't change just because people start using words differently. If the meaning of the law should change with the times then get the law-makers to update it.

burkaman 9y ago
Are you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?
- marcoperaza 9y ago
  Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power. I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
  - burkaman 9y ago
    Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky. If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
    - dragonwriter 9y ago
      It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
      - burkaman 9y ago
        Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Board_of_Education https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa... I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
        dragonwriter 9y ago
        > Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy. > None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.
- deleted 9y ago
  [deleted]

by zlynx 9y ago

burkaman 9y ago

Are you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?

marcoperaza 9y ago
Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power. I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
- burkaman 9y ago
  Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky. If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
  - dragonwriter 9y ago
    It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
    - burkaman 9y ago
      Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Board_of_Education https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa... I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
      - dragonwriter 9y ago
        > Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy. > None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.
deleted 9y ago
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