So do you think that Brown v. Board of Education was an example of judicial overreach because it overturned Plessy v. Ferguson and also enacted social change that would've never happened, at the time, through Congressional action? "Judges should not legislate from the bench" is a talking point. I am interested in your expounded thoughts since you are the OP.
"except when they are legislating from the bench to favor republican/conservative partisan positions, then its all good..."
A judge's job is to interpret laws that are passed by Congress. He/she has the ultimate authority over legislation. I don't believe the Constitution is frozen in time. I don't want judges interpreting law and/or facts from an 18th century viewpoint...I don't believe the Framers who lived in the 18th century would want that either. In law school we talked a lot about the facts that courts had to consider over the years as the Constitution expanded...those facts are wildly different from generation to generation. I don't want to live in a world where "separate but equal" is ok...or where human beings count as 3/5ths of a human being. Those things were deemed to be Constitutional at one time....they wouldn't be today, because our views on what is Constitutional have changed. To pretend we should interpret the 2nd Amendment today as if we lived in a time of muskets is to miss the point entirely, in my view. At the end of the day, I love the Constitution. I think it's amazing. My view of it is wildly different than yours, and that's ok. It's been like that for over 200 years now. I don't the Framers could begin to imagine what the world would be like in 2018...I think they're amazing for allowing the space for words and concepts to breathe that they did. And if you bristle at that, remember "men" used to mean only white men who owned property. There are very few things I would die for, but what I BELIEVE the Constitution to be is something I would risk my life for. I love the idea of what we can become, because of the Constitution...not of what we have to be stuck in.
Winner winner. Spoiler These ultra literalists are basically blind to the natural space that is granted to the courts to apply the laws. They don't view history through a lens that can see further back than a single generation. To them, "Constitutionalist" or "textualist" means "agrees with my view of the world".
Of course it would have been passed eventually. People evolve as do the nations they live in. This is why Gay Marriage is legal today too...something unthinkable just a generation ago. The most you can say about the Civil War's affect on slavery is (with a courageous and righteous President's help) it gave the amendment enough strength to be passed at that time.
Plessy v. Ferguson was not a Textualist decision. It treated the constitution as a living document and the outcome was a reflection of the racist times. It shows how dangerous it is to just change the meanings of the words based on how society feels. The freedom of speech is just as fundamental in a time I can post my thoughts instantly to millions of people across the country as when it was only possible to speak to people in my town. Unfortunately most bill of rights across the world have faded to just meaningless words on a page as they are eroded by their governments.
This is a bunch of hogwash. Every single Supreme Court has had to view the Constitution as a living document because new issues arise and the founding fathers did not foresee many of the issues that people deal with on a daily basis.
Exactly, Plessy v. Ferguson was the judicial overreach by activist judges. Brown v. Board corrected the mistake of the Plessy decision. Hopefully the same thing will happen to Roe v. Wade within a few years.
The question is whether it is just and fair to wait on assumed eventual morality instead of acting in the present to right a wrong. Would it have been just to tell African Americans in the South "Hey, don't worry; in 20-30 years this will all just smooth itself over. But, in the mean time, we can't have you sharing public facilities with whites because we don't want to 'legislate from the bench'"? Gay marriage is also legal nationwide because a handful of states resisted recognizing these unions and the courts stepped in to prevent elected legislatures from continuing to discriminate upon a group of their own citizens. Yes, public opinion shifted on the issue greatly in the last few decades for reasons a lot more complex than court cases. But the state legislatures that refused to recognize unions from other states likely wouldn't have gotten with the program for years to come.
Wait...the Founders' intent was not for black men to be treated as "men" under the law...those were the guys who wrote the words. If we're looking to Founders' intent, then the words stop right there. Many of the guys who signed that document were slaveowners. It can't be words written by men frozen in time. If it is, we're stuck.
"The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds." "But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." Looking at the texts of the first, second and fourth amendments I see "the right of the people". Unlike the highly influential English Bill of Rights that specified "right of Protestants to have arms ", our amendments simply said "the people". They could have said white people. If collectively it is decided the text no longer works, it can be amended. What is the point of amending if it can easily be changed with the opinion of an unelected elite?
