Judicial review? Brown v. Board of Education

Discussion in '2003 Archive' started by fromtheright, Nov 16, 2003.

  1. fromtheright

    fromtheright
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    On other threads there is a great deal of outrage over the judicial supremacy exercised not only by the Supreme Court, but federal courts in general. Among those who decry such judicial usurpation, what is your opinion of Brown v. Board of Education, the 1954 Supreme Court decision that outlawed school desegregation? Was it illegitimate? Was the outcome desirable? If the Court decision was illegitimate, should we have awaited whatever tendencies against segregation there may have been in the South? Would Jim Crow have eventually passed away quietly?
     
  2. Pastor Larry

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    I wonder as well what people say to the overturning of the principle in Plessy vs. Ferguson in this case.

    It seems to show that there is a precedent for SCOTUS overturning its own precedents, a preceent that would be well followed in Roe v. Wade, something commonly acknowledged as the worst SCOTUS decision of modern times, totally devoid of basis in constitutional law.

    Plessy v Ferguson and Brown v. Board of Education would seem to have more issues about federalism and judicial activism than many are willign to give credit for.
     
  3. The Galatian

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    Plessy vs. Ferguson was based on the theory that "separate but equal" was legal.

    When the Court was shown that "separate" always turned out to be "unequal", the doctrine was overturned on the practical finding that equality under the law was not served by segregation.

    It was overturned because it was shown to be contrary to the Constitution.
     
  4. Pastor Larry

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    But my question/problem is this: SCOTUS had previously decided that "separate but equal" was constitutional in Plessy v. Ferguson. Then, without change in the constitution, they decided that it was unconstitutional. How is something both constitutional and unconstitutional under the same constitution?
     
  5. KenH

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    fromtheright:

    My answer is that I believe in separation of education and State;therefore, it wouldn't be a Supreme Court issue if I had my way. :D
     
  6. fromtheright

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    KenH,

    My answer is that I believe in separation of education and State;therefore, it wouldn't be a Supreme Court issue if I had my way.

    Thanks very much for the answer. Though I am delighted to have other posters, and hope many others will do so to hash out these questions, I was especially interested in yours and Pennsylvania Jim's answers. Your answer is fair enough, but what if the question is posed outside public education, say in the area of public accommodations, where Jim Crow was equally felt?
     
  7. The Galatian

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    The difference between Plessy vs Ferguson, and Brown vs Board of Education, is that under Plessy vs Ferguson, the court bought the argument that "separate" could be "equal".

    The plaintiffs in Brown vs Board of Education merely demonstrated that it could not. No principles changed. Only the facts were at issue.

    And the court decided on the facts.
     
  8. KenH

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    By public, do you mean government? The government never has a right to discriminate against any citizen. So on government property could the government require whites and blacks to drink at separate water fountains? No.

    Of course, private property is private.
     
  9. fromtheright

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    Certainly a valid distinction. OK, let me present the first questions in the context of a restaurant not allowing blacks to be seated or served.
     
  10. Pastor Larry

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    Is this not a difference without a distinction?? To say that only the facts changed seems inadequate to properly represent the state of affairs. In PvF, the court, on the facts, decided that "separate but equal" was a valid constitutional principles. In BvBOE, under a different set of facts, decided "separate but equal" was not a valid constitutional principle. The constitution did not change; their interpretation of it did.

    To me, that is what is at state. When the interpretation of the constitution can change, it is problemmatic for consistent government. I think BvBOE was the right decision and PvF was misguided.

    To bring the analogy forward, the overwhelming scientific evidence that life begins at conception now brings a new set of facts to the constitutional table. The people protected under the constitution must include all people, including the unborn people. While in 1973 there may have been insufficient evidence to determine the "peoplehood" of a fetus, there can no longer be any such claim. The facts now in evidence show that Roe v. Wade is inadequate, just as the facts of BvBOE showed that PvF was inadequate.
     
  11. KenH

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    If the restaurant is privately owned, then they certainly have that right. And I have the right not to frequent such an establishment.
     
  12. rsr

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    They don't have that right under current law. Restaurants are a public accommodation and thus are covered by the Civil Rights Act.

    CIVIL RIGHTS ACT OF 1964
     
  13. KenH

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    I disagree with current law.
     
  14. rsr

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    It's still the law.
     
  15. KenH

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    And I still disagree with it. But that's nothing new. Probably 90% of the federal laws should be ruled unconstitutional.
     
  16. Johnv

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    A private business may discriminate for many reasons. Race, color, creed, or gender (with some exceptions) are not among the reasons that a business may discriminate. The exception to that is if the restaurant is a religious establishment.
     
  17. fromtheright

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    KenH,

    Absent those Supreme Court decisions and Congressional legislation, do you think that Jim Crow would have died in the South? Would it have taken longer? Is the extra time in attaining that point acceptable?
     
  18. fromtheright

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    Calling KenH, calling KenH.
     
  19. KenH

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    Yes.

    Yes.

    Yes.
     
  20. fromtheright

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    Thanks.

    Thanks.

    Thanks.

    How long would have been "acceptable"?
     

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