Ed Whelan, president of the Ethics and Public Policy Center, responds on NRO to one of the liberals’ pet arguments about the law –that those who reject the liberal version of a “living constitution” would not have reached the correct result in Brown v. Board of Education, the Supreme Court decision that declared segregated public schools unlawful. As Whelan notes, Michael McConnell, now a court of appeals judge, refuted that argument ten years ago. Whelan demonstrates that current attempts to revive it are wrong in all particulars.
Of course, those who advocate a “living constitution” can reach the Brown result too (or not). Judges doing whatever they want can reach either correct or incorrect results. Indeed, Whelan reminds us, “even a broken watch is right twice a day.”
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. But, as I wrote here:
The fact that the Supreme Court was about ten years ahead of the Congress on the issue of civil rights in the mid 20th century is no justification for handing to courts the authority to make society’s moral decisions. In the mid 19th century the Dred Scott Supreme Court lagged behind Congress on the same issue. At the turn of that century, the Plessey Court was pretty much in lock-step with Congress. Nothing in the Supreme Court’s overall record comes close to justifying abandoning normal democratic processes whenever one spots a big ticket moral issue.