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January 11, 2006

Just a Little What If

I'm a little surprised that Jonah Goldberg let pass without comment the assertion that I've italicized in the following excerpt from an email that he published in the Corner:

I won't weary you with the legalese, but ***nearly all*** of the great civil rights decisions were stop-on-a-dime reversals of precedent; even super-duper-mondo kinda precedents, with years of history and gloriously coherent (and often, err, racist) opinions backing them up. So if judges had applied back then Specter's Roe standard, blacks would not be voting today, going to our schools, or eating at our lunch counters, etc.

Without any intention of arguing in favor of super duper stare decisis, I'd ask the emailer to provide his or her justification for this low opinion of those classes of Americans who are not judges. Not only am I skeptical that the United States would remain a racist polity today were it not for the benevolent prod in the right direction by the judicial elite, but I'd also suggest that it is possible to envision an alternate route in which history would have found racial strife even less persistent currently had change not been accomplished via decree of the unelected.

Posted by Justin Katz at January 11, 2006 10:20 PM

I too am skeptical about the claim made by the email's author. I think it was less the citizens that needed the prod than the politicians and elitist power brokers. The majority of the average citizens most likely realized the inherent unfairness of the laws, but were reluctant to chance a scrape with the judicial system.

All I have to go on though are my own experiences living through the initial desegregation of schools in the early 70's. My spouse's experiences were much the same though we lived about 900 miles apart (Texas and Connecticut respectively).

I think it is sad that people are still trying to paint history otherwise.

Posted by: smmtheory at January 13, 2006 11:44 AM

Oh, of course it's POSSIBLE "to envision an alternate route." But envision as much as we may, I have to wonder what the American South would be like today if the Civil Rights Act of 1964 had instead been put up for a popular vote in Alabama, Mississippi, etc.

Posted by: Chuck Anziulewicz at January 14, 2006 11:07 AM

Did you grow up in that area Chuck, experience the desegregation? If so, how many people did you actually know that actively hated black people? I'll bet it wasn't a majority if you did know some.

Posted by: smmtheory at January 16, 2006 8:14 AM

if the Civil Rights Act of 1964 had instead been put up for a popular vote in Alabama, Mississippi, etc

In a sense, Chuck, it has been. And that is the point. At least the voters of Alabama, Mississippi, and other places you probably consider backwards had the opportunity to vote out the elected representatives who passed the CRA of 1964, and put in new ones who would repeal it. The way the current Roe fiasco works, we don't even have that limited amount of input.

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