[Vision2020] Equal Protection arguments and judicial activism

[Joan Opyr]

Dave Budge writes:

"But just as the Supreme Court made unconstitutional the practice of executing minors (the outcome with which I approve as I  approve of the outcome of the decision in question) the upshot is a loss of democracy for residence of the states.  Preferably the law should be changed by democratic process.  In other words, the day will likely come when a law that you favor and is mandated by majority representation will be overturned by judicial fiat.  This is the wrong way to run a democracy or a republic."

I don't disagree that the California decision may (okay, probably will) come back to bite us in the ass; it's always one step forward and two steps back.  But in terms of our federal Constitution, that great document does give voice to the radical idea that the rights of the minority may not be impinged nor infringed by the whim of the majority.  In other words, my civil rights cannot and should not be put to a majority vote.  I admit that this is an idealist's view of the Constitution, but I would argue that any time you subject the rights of any minority group -- be they gays and lesbians or racial or religious minorities -- to a majority vote, then the minority group will invariably lose.  People are by and large change-averse.  They will cling to a status quo long past reason and even when that status quo has begun to have a negative financial and political impact on the majority.  Witness the current argument over illegal immigrants.  The United States' agricultural economy would collapse without a steady influx of illegal aliens, AKA migrant workers, from south of the border.  And yet in states like California, which clearly benefits from this influx of workers, a majority votes in referendum after referendum to deny these workers access to schools, health care, and driver's licenses.  This makes absolutely no sense in terms of California's economy, but beating up on illegal aliens is a popular pastime.      

If we had waited for the majority in the South to integrate schools and lunch counters voluntarily, right here in the year 2005, Oprah Winfrey and I would still not be able to attend Calculus class together nor could we share a pimento cheese sandwich at a Southern Woolworth's.  Minority rights can never be subjected to a majority vote -- not if we, the minority, actually want those rights.  Instead, we are forced to rely on favorable judicial interpretations of the 14th Amendment and hope that once change has happened, the majority simply gets used to it.  Is that Machiavellian?  Absolutely.  I'm afraid it's also Realpolitik.

Now, wasn't it a rather interesting and radical interpretation of the 14th Amendment that put Mr. Bush in the White House back in 2000?  I believe that the U. S. Supreme Court ruled 5-4 that Mr. Bush would be irreparably harmed, i.e., he would lose the election, if the Florida re-count were allowed to continue.  In other words, the equal protection clause was interpreted to apply to Mr. Bush the individual rather than to the majority of Florida voters.

Joan Opyr/Auntie Establishment
www.auntie-establishment.com
        Get more from the Web.  FREE MSN Explorer download : http://explorer.msn.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/pipermail/vision2020/attachments/20050314/0250f361/attachment.htm