VICTOR REPPERT SAID:
“It is important to realize that our country's was founded on something of a moral contradiction. On the one hand we have the Declaration of Independence, (all men are created equal), and the Bill of Rights, which suggests that we all are supposed to have rights, and yet large portions of the country practiced Negro slavery (including the author of the Declaration), and women were denied the right to vote until the 20th century.”
Yes, there was a pragmatic and moral compromise at the outset of our Republic which haunted our Republic for generations.
“Because the South dropped out of the body politic through secession, we were able to amend the Constitution in order to end Negro slavery. Thus, through amendment, we were able to make our laws more morally consistent. But the Supreme Court didn't help reach this, it produced the dreadful Dred Scott decision. Women got the right to vote through constitutional amendment. But separate but equal held sway until Brown vs. Board of Education.”
Two glaring problems with that argument:
i) What the court giveth, the court can taketh away. Liberals love judicial activism as long as they have 5 votes on SCOTUS. But, of course, when the balance of power shifts, then all their gains are reversible.
Liberals can find rulings they alternately love and hate. Conservatives can find rulings they alternately love and hate. Indeed, you yourself have inadvertently made that very point by citing Dred Scott and Brown v. Board side-by-side.
So your outcome-based jurisprudence is a wash.
ii) Brown v. Board didn’t solve the larger problem. That’s why MLK had to organized economic sanctions (e.g. bus boycotts). That’s why Congress had to pass the Voting Rights Act.
“At that time there were certainly enough Southern states who would have prevented a school desegregation amendment had one been proposed, since you need 3/4 of the states to amend the Constitution. Under those circumstances, the originalist slogan ‘if you don't like the Constitution as it is written, amend it,’ would never have worked. Now maybe a originalist argument could have been made for school desegregation, but the actual jurisprudence in Brown seems not to have been that.”
i) Seems to me the 14th Amendment is applicable to that situation. Jim Crow laws were designed to subvert the 14th Amendment.
ii) However, you’re also setting up a false dichotomy. Not all rights are enshrined in the Constitution. We also have a legislative branch.
“The originalist has to be prepared to tolerate what they perceive as a deep injustice, hoping for a future amendment, if they can't pull the required change out of the text of the constitution. And to my mind, that is a price to pay. ”
i) The appeal to injustice cuts both ways. Abortion on demand is a “deep injustice.”
ii) You’re claiming that because the status quo is unjust, we should pretend that the Constitution confers a right which has no real basis in the Constitution. Do you think civil rights should be grounded in make-believe?
“On the other hand, an out of control judiciary can maybe make the wrong decision, and a lot of people think that that is what happened in Roe. But when I was a kid people talked about an out of control judiciary, but when they did they usually complained about decisions like Miranda, which protected the rights of the accused? Was ‘You have the right to remain silent,’now a staple of every cop show going as far back as Hawaii Five-O, a misguided decision?”
Yes, Miranda was a misguided decision. Next question.
“Unfortunately, I think I want the court system protecting the rights of the accused.”
I’m all for protecting the Constitutional due process rights of the accused. What I oppose is judicial appointees fabricating un-Constitutional due process rights in the name of the Constitution.
“I can't trust the body politic, who is generally motivated by ‘law and order,’ and can be swayed by such things as the Willie Horton ad, to provide sufficient political will.”
So you think we should give weekend furloughs to convicted murderers. Well, I happen to think that’s a case in which the body politic was right, and bleeding-heart libs like you were wrong.
“And then you've got to ask if judicial activism started with Marbury vs. Madison. After all, judicial review isn't even specified in the Constitution.”
And we’ve been building on that faulty precedent ever since.
“I think I want my judiciary to be able to strike down injustice even if that means stepping beyond the borders of original intent, even if that leaves the door open for the judiciary to make some wrong decisions.”
So you reject a constitutional form of gov’t in favor of a totalitarian state. It doesn’t occur to you that the Constitution was largely intended to protect the public from tyrannical gov’t.
So who needs the Constitution at all? Let’s just have judges dictate to the rest of us how we are allowed to conduct our lives.
“There's a lot to think about when you select a judicial philosophy. There's a lot more to it than getting the right decision on abortion.”
My objections to judicial activism were never limited to Roe v. Wade.
“I wonder who was making the originalist arguments at the Council of Nicaea. The Arians were arguing that you couldn't find homoousion in the text of Scripture, so you couldn't define orthodox Trinitarianism as Christian doctrine.”
Does this mean you attend the local Kingdom Hall? Is it your position that the deity of Christ cannot be educed from the NT?