Paul over at Power Line [1]takes on Ed Whelan at NRO [2]
In general, the Supreme Court has been getting more mileage than it deserves out of its decision in Brown. To its credit, the Supreme Court got on the right side of the civil rights issue about ten years before Congress did. Congress was hampered in this regard by the racist wing of the Democratic party and its use of the filibuster, which in those days could be sustained by one-third of the Senate.
Tell ya what, Paul… [3] I’d go a step further, and suggest to you that the only reason Brown had to be brought at all was the result of a ‘living’ reading of the Constitution in Scott. I submit Brown reversed that error.
(Granted the Supremes would never label it as such, but there it is…)
The Constitution, I would argue, is a legal document.
Legal documents by their very definition, are not “living documents”, and are certainly not intended to be re-defined at need. If the need arises, legal documents are re- WRITTEN. In the case of the Federal constitution, the founders were good enough to provide us with the means to do just that.. but made the process troublesome, so as to insure things weren’t just changed on a “whim” of the people. Their intentions were clearly spelled out on this point, in the minutes of the original constitutional convention and other sources.
The USSC, in the case of Scott and a goodly number of rulings since then, in creating rights out of thin air… have appropriated the right of changing the Constitution by whim, to themselves… certainly, a more dangerous and destructive prospect than forming a constitutional convention.
It has been noted that there is a serious backlash against the Judicary the last few decades, which is at, dare I say this, an all-time peak, today. This (mis-)appropriation of ‘ruling by judial fiat” by the courts is exactly WHY this feeling exists.