Okay, as promised yesterday, a brief rant about a colloquy between Kavanagh and @BenSasse yesterday. [Puts on Fake Constitutional Scholar hat]. Let's begin.
It was about the wonderful way in which SCOTUS can correct errors through overturning cases. Plessy v Ferguson (1896), holding segregation was constitutional, was "wrong," and was corrected in the fullness of time by Brown V Board (1954). Yay, us. Right? No.
1st: These are the two cases everyone uses to talk about this, although there are many. Why not, say, Lawrence V Texas, which overturned Bowers V Hardwick, and declared anti-gay sodomy laws to be unconstitutional? B/c not everybody agrees with that one. Shhh.
Although, even today, some people, including judicial nominees, won't join the cultural consensus that Brown was correctly decided. thehill.com/regulation/382…
But the deep error here is that Plessy was "wrong," and Brown "right," implying that there is as underlying, eternal, empirical Constitutional truth that sometimes we get wrong, but will eventually get right. Neither propositions are true.
Was "Plessy" really wrong? As @AdamSerwer discusses in the article below, the post Civil War court completely erased the plain meaning of the "equal protection" clause of the 14th Amendment, at least as it applied to Black people. theatlantic.com/ideas/archive/…
Given the jurisprudence of the time, the Plessy court was probably correct to say the Con allowed "separate but equal" facilities. In any real world sense, it was a "correct" decision. Certainly any hypothetical error or stern dissent made no difference to Black people's lives.
So what changed by the time of Brown? Did the true meaning of the Constitution reveal itself through mystic means, or through the labors of such (genuine) legal heroes as Thurgood Marshall? Not really. What changed was the country.
Imagine if Justice Harlan had won the day, and the Plessy court decided the Constitution was "color-blind." In 1896 America, which was an apartheid state. The country would have exploded in racist violence, far worse than what we actually endured.
But by the mid-50s, America had changed. We had fought and defeated a genocidal racist state. The armed forces were de-segregated. More and more African-Americans rose from forced immiseration to positions of prominence and eloquence.
That's what moved the Brown court to overturn Plessy. The Constitution had not changed. The country had. So, as of 1954, it was no longer correct to say the 14th Amendment did not extend to Black people.
There's another example that my generation has seen happen in the course of a single lifetime: from Bowers v Hardwick to Obergefell. From LBGT people as a persecuted pariah class to fully equal citizens. Again, the Constitution did not change. We did.
Why is this important? Because you should ignore all attempts to claim the "true" Constitution. That does not exist. It has never existed. It has meant what we the people needed it to mean since the day it was ratified.
More importantly: do not fall into the trap of believing that "progress," however you define it, is inevitable. We the People constantly change, but not always in the same direction. (As if, in 2018 America, I needed to tell you that.)
The optimistic part, though, is that because there is no "true" Constitutional interpretation of anything, it can be changed. It can take a long time, like, say, the decades between Plessy and Brown. But it can happen. It has.
With apologies to Dr King, the moral arc of the universe does not bend towards justice. Like the Constitution, it doesn't do anything by itself.
But it can be bent. Go push on it, in the direction you prefer.
But it can be bent. Go push on it, in the direction you prefer.
Okay, i guess that wasn't short.
