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February 26, 2004

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Brad DeLong

Don't you mean, "the court was right, the court was not *very* activist"?

Earl Warren did this in 1967 rather than in 1955 in large part because he was a crafty politician, and wanted fire support before he moved.

But you don't want to maintain that it would have been *wrong* for Warren to do Loving v. Virginia in 1955, do you?

:-)

TM

But you don't want to maintain that it would have been *wrong* for Warren to do Loving v. Virginia in 1955, do you?

I am reminded why politicians don't address hypotheticals. And I am thinking of the famous quip that the Supreme Court follows the election returns, which is what I would prefer to seeing the court lead them. And now we are back to Florida - man, I am dancing from tree stump to tree stump in the Okefenokee swamp.

TM

OK, now I am back, with spring in my step, and a better answer.

I have used the word "wrong" at various points in this discussion, each time acutely aware of how vague a concept it was.

So, intellectually, the main arguments the court offered in 1967 could have been offered in 1955 - in that sense, it would be difficult to argue that the court would have been "wrong" to make the same decision in 1955.

Similarly, the specific moral case seems *roughly* the same, so it could not have been wrong, in that sense, in 1955.

However, two points - the court was hardly turning its back on the civil rights question, having delivered Brown v. Board of Ed in 1954. And, closely related, the court needs to husband its political authority and legitimacy.

If the court had pushed too hard in 1955 (Eisenhower sent troops to Little Rock in 1957 to enforce Brown), it could have created a situation where politicians said "enough". If Eisenhower suddenly couldn't find federal marshalls to, for example, escort the Lovings from jail, then the court would be in a position of issuing a flurry of contempt orders which went ignored.

That would be wrong, as far as advancing a civil rights agenda. And my recollection of Earl Warren is that he was not shy about pushing the system.

Invading France to liberate it from the Germans was "right" in concept; it would have been wrong in 1942.

John Thacker

As Clayton Cramer points out, there's also another sense in which the analogy doesn't hold. Virginia's statute, like others, did not merely fail to recognize such marriages; it actively made getting such a marriage elsewhere a felony. It is a significant difference.
(Of course, analogies with laws against polygamy remain uncomfortable.)

Brad DeLong

Invading France to liberate it from the Germans was "right" in concept; it would have been wrong in 1942.

I am glad to see that Operation Overlord, like the Constitution, is a living document...

:-)

Brad DeLong

And I'm glad to see that us liberals' habit of hanging around until people recognize what was always plainly written in the text of the Constitution receives the support that it does...

After all, would anyone deny that the unconstitutionality of miscegenation laws is plainly written into the Constitution? (Scalia might, I suppose.)

Pouncer

Brad, do we infer there is no Constitutional right to be wrong? That error, always and everywhere, must be corrected by federal marshalls?

Brad DeLong

For unconstitutional wrongs, yes: that's what the federal marshals are for.

If the state of Virginia wants to throw Clarence Thomas in jail for marrying a white woman, I want the federal marshals to stop it.

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