14th Amendment Jurisprudence

damnum absque injuria: Courts as Champions of Civil Rights
I’m not all that interested in getting into the gay marriage dust-up, but Jeff has a great post on how the courts basically gutted the 14th amendment on school segregation and didn’t repair the damage until Brown v. Board of Education.

To call Brown v. Board of Education a “contribution” to the desegregation effort is a bit like thanking a bank robber for his “contribution” when he finally gets around to returning the loot he stole almost a century earlier, without interest. Congress and the states enacted the 14th Amendment in 1868, only to see a racist, judicially activist Supreme Court subvert the law through its too-clever-by-half “separate but equal” ruse, which remained the “law” of the land until Brown. It was nice of the court to finally “discover” the 14th Amendment in 1954, but lest we miss the forest for the trees, note that if the courts had done nothing on the segregation issue except to apply the law that Congress had enacted in 1896, school segregation would have been a distant memory by 1954. Rather than of thank the courts for finally ending segregation then, curse them for keeping it alive nearly that long.

I’m a big fan of the 14th amendment and have always considered it a major failing that it took 100 years to put the bulk of it in place via the Civil Rights Act. Congress might have gotten a little out of control (I’m trying to sound droll here) by abusing the Interstate Commerce Clause, but they did finally implement the intent of the 14th amendment.

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