The Old Bald'n Cheney

Justice for All

Suspecting that we were talking past one another, Kelly and I sat down over lunch to hash this out. The following is my interpretation of our new consensus. The following is not a radical remaking of our fundamental premise, merely a deeper investigation.

If we set aside the 14th and 15th Amendments for the purpose of this mental exercise, the doctrine of "separate but equal" is a good example of how a redefinition of right vs. fair can play out in American society. The Framers wrote the Constitution to set up a structure in which the American people could decide issues of morality while respecting the rights of the individual. We know from other societies what happens without a sound constitutional framework: dictatorship or war.

Let us map out the different states of a possible issue and the type of legislation represented by each state:

STAGE	FAIR	RIGHT	TYPE OF LEGISLATION
1	Y	Y	Passed by Legislature and upheld by Courts
2	Y	N	Legislature changes the law
3	N	Y	Invalidated by courts
4	N	N	Unjust law

In this, we find a theory of governance.

We can follow the history of the "separate but equal" doctrine to see how understandings and perceptions of society can change regarding an issue, and how society's changing attitudes can impact a Supreme Court operating within the bounds of constitutional jurisprudence. The 14th and 15th Amendments were passed in the immediate aftermath of the Civil War, in the midst of Reconstruction. Many southern states approved the two amendments as conditions for readmission into the Union, so there were large swaths of society that were not ready to treat their fellow black Americans as equals. Consequently, many state legislatures in the South passed the infamous Jim Crow laws. Congress felt the Jim Crow laws were not right (Stage 2 laws) and passed the Civil Rights Act of 1875, but the Supreme Court invalidated much of this Act, claiming that the 14th Amendment didn't protect against discrimination perpetrated by private entities. After Reconstruction and the return of southern representatives and senators to Congress, congressional interest turned to other matters. When the constitutionality of the southern states' Jim Crow laws was challenged before the Supreme Court in the mid 1890's, the Court issued its famous Plessy decision, upholding the state laws as constitutional.

We believe the Court acted erroneously in Plessy because the Constitution had been amended, in the form of the 14th and 15th Amendments, to define as unfair any form of racial discrimination. The legislatures of the country should not have been able to define segregation as morally sound because the Constitution had removed it from the competence of the moral arena and turned racial equality into a question of fair application of power. Nevertheless, the Court did rule the way it did, so it becomes an interesting study in the progression of an issue from Stage 1 to Stage 4.

When laws are passed at the state or federal level, courts do not give their assent or approval. So unless a specific case is brought before a court challenging the constitutionality of a law, the law is considered to be valid legislation. The legislative branch has deemed an issue, segregation in this case, to be right, or moral. However, when people who feel wronged by the law, they have the right to bring suit before the state or federal courts to challenge the fairness (i.e., constitutionality) of the law and seek relief from the law. This was the case with the Jim Crow laws of the South, and the issue worked its way through the court system, culminating in the Supreme Courts Plessy decision of 1896. The Court validated the South's Jim Crow laws as a fair application of state power, leaving the matter as a Stage 1 issue. There was an alignment of opinion regarding segregation among the state legislatures, the Supreme Court, and the people (as represented then by the super-majority white population).

Nevertheless, the opinion of much of society changed over the first fifty years of the twentieth century. Experiences in World War I, the Great Depression, World War II, and the Cold War worked on the nation's psyche, exposing a fundamental hypocrisy between the words of the Declaration of Independence ("all men are created equal") and the way in which black Americans were treated. Enough of the population had changed their views of equality by the 1950's that a significant majority of America saw segregation as morally wrong and unfair. While many whites in the South viewed segregation as the natural order of the world, most of America as a whole agitated for change, and a critical mass had been achieved. Society had reached the point to where it viewed segregation as a Stage 4 issue. The Supreme Court acted in 1954 (in Brown v Board of Education of Topeka to declare segregation as unconstitutional, but it was too late.

For a Stage 4 issue, the people demand action. Generally, Congress and the courts are release valves for issues that are in Stage 4, and if one of them acts, the demands of the people will be satisfied and stability is restored. However, if both branches ignore the issue long enough, it will only be a matter of time before something will trigger a reaction among the populace to affect change. For slavery, it was the Civil War; for segregation, it was the Civil Rights Movement.

The Founders understood the governance imperative enough to know that these situations can and would occur and that mechanisms are needed to resolve the tension between the people and the state -- the ying and yang of the governance imperative. While the system of checks and balances is normally associated with the balance of power between branches, the genius of the Founders was that they also instituted mechanisms to help keep the balance between the people and the state. The forces that build up between the people and the state are considered in the structure that the Constitution lays out. Checks and balances treat the system but not the disease, which is the tension between the government and the people. This tension will always be there, but the goal is to balance it out. It's in the nature of man and the nature of governing. To understand the governance imperative is to understand the relationship between the governed and those who govern.