
The Constitution Is Not a Sometimes Food - Argothair
https://medium.com/@jasongreenlowe/the-constitution-is-not-a-sometimes-food-879dd7adf2ca#.9sqgf6p8d
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dalke
> 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.

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Argothair
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.

