May 11, 2005
B, NOT A:
Brown and Originalism: There’s more than one way to get it right. (Edward Whelan, 5/11/05, National Review)
The Left invokes the Orwellian euphemism of the "living Constitution" as it promotes and applauds lawless judicial decisions, like Roe v. Wade, that have no conceivable basis in the text or structure of the real Constitution. The "metastasizing Constitution" would be a far more honest moniker. For the real living Constitution — the Constitution that came to life in 1789 and that grew to full fruition with the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments in the aftermath of the Civil War — is suffering from foreign cells metastasizing in its vital organs. The only means of restoring its health is a vigorous dose of originalist medicine.The Left's "killer" argument against an originalist reading of the Constitution is that adherence to the original meaning of the Fourteenth Amendment purportedly would not have yielded the just result — the end to the evil of segregated public schools — mandated by the Supreme Court's landmark 1954 ruling in Brown v. Board of Education. Margaret Talbot's interesting but flawed profile of Justice Scalia and originalism in a recent issue of the New Yorker is typical (which I wrote about here): The only "way to get to Brown," she asserts, is "to embrace the 'living Constitution.' " Why's that? "[I]t's hard to see an originalist justification" for Brown, since, she claims, the "same Congress that passed the Fourteenth Amendment segregated Washington schools." Justice Scalia "sometimes acknowledges as much, saying that a faulty — that is, a non-originalist — method can occasionally produce good results, a Scalian variation on 'Even a broken watch is right twice a day.' " And further, she tells us, liberal legal scholar Cass Sunstein has declared that a "doctrinaire originalist" would reject Brown. Case closed. No need for further discussion.
But wait: Every one of Talbot's assertions is off the mark.
However, from a stanpoint of what was best for the plain tiffs, Brown was probably argued and decided wrong anyway. It would have been far more empowering to simply insist on the Equal side of the Separate but Equal equation. Requiring segregated districts to spend as much per pupil in black schools as white could have been a real boon. Posted by Orrin Judd at May 11, 2005 6:59 AM
Alas, no one seems to grasp the gravemen of Brown. State-imposed school segregation is psychological harmful to those excluded. It is a badge of inferiority, harming ". . .hearts and minds in a way unlikely to be ever undone."
On that basis, Brown was in fact a good 14th Amendment case. If THE STATE is running schools (which it should not be doing anyway, since that process thereby subjects various important parental and community prerogatives to the strictures of state action.), then it may not do so in a way which stigmatizes and injures students.
Returning to the issue at hand, however, that point is irrelevant to the argument on originalism. Even if it were true, which it is not, that originalism would give results on this issue that one may not like, that would argue for further amendment, not for abandoning constitutionalism itself.
Posted by: Lou Gots at May 11, 2005 10:23 AMSo, OJ, despite being from NJ, Robinson v Cahill and its evil progeny have made no impact on you. The equality mania of the NJ Supreme Court has led to a formula which robs better-off districts to benefit worse-off ones, and forces the merger of affluent districts with poor ones, destroying public education, as parents flee the once-wealthy districts. Englewood Cliffs/Tenafly and Maplewood/South Orange are excellent examples of this phenomenon.
Posted by: bart at May 11, 2005 10:34 AMbart:
Yes, that was precisely my point. Blacks would have been better off had they insisted on equality, as guaranteed by law, than on integration.
Posted by: oj at May 11, 2005 11:34 AMThe NJ equality fetish is serving only to bring everyone down to the lowest common denominator, as rich districts get dismantled and thrown together with poor ones.
Posted by: bart at May 11, 2005 11:45 AMSo the schools would have been integrated after all. Problem solved.
Posted by: oj at May 11, 2005 11:59 AMNonsense. White and Asian people flee the system, sending their kids to private schools or moving to suburbs far away from any realistic means of shipping inner-city detritus into their neighborhoods. The cost of parochial education in Bergen County is like $12,000/kid, which is just plain nuts. NJ is not alone, the majority of White kids in many Southern states and most large American cities attend private or religious schools.
The schools become even more segregated than they were before, with the exception that quality public education gets destroyed in lots of places. Tenafly might be the best system in NJ but the liberals and the Christie Todd Witless Republicans both targetted their system to be forcibly united with Englewood, which would be like sending them to Mogadishu for school.
If 'equality' were the goal, we could easily fold up everything into one school system statewide, if not nationwide, spreading the tax burden accordingly.
Posted by: bart at May 11, 2005 4:10 PMbart:
Are you arguing with yourself now? You just said the disctricts were being melded.
Posted by: oj at May 11, 2005 5:25 PMWell, you see, the principals are Saudi puppets...
Posted by: David Cohen at May 11, 2005 8:41 PM"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens..."
No need for a "Living Constitution" any more than a "Living Mortgage" or "Living Wedding Vows". The Actual Constitution suffices.
Posted by: Noel at May 12, 2005 1:00 AMOJ,
There is a difference between a merger in a region, where a poor school district borders a large one and a system like Hawaii where there is only one district for the entire state. When you merge a rich and poor system together, the kids from the rich system flee entirely. A statewide system doesn't have to worry about nonsense like racial balance because the moneys are spread more rationally.
David,
The destruction of public education in America is not the fault of the Saudis, but is instead the result of an unholy alliance between Communists, who understand that decent public schools are a cornerstone of American progress and strength, and religious denominations, who want the tuition money.
Posted by: bart at May 12, 2005 10:10 AMBart,
Your last comment to David is both funny and plain wrong regarding what motivates religious denominations (at least Protestant ones) to become involved in educating young people.
bart:
So the blacks kids in the merged schools will be getting a ton money spent on them. It's a great deal.
Posted by: oj at May 12, 2005 12:29 PM