Response 1: Rethinking "fair but not right"

Re: Rethinking "fair but not right"

Kelly wrote:

"The assumption is that if the legislative branch passed it, they considered it the right thing to do. When the courts uphold it, they are saying that it is fair application of power according to the Constitution."

This is a superb summarization of the thesis of this blog and the role judicial review is meant to play in the American constitutional scheme. All things being equal, I'd agree that the Plessy decision is a good example of morally repugnant legislation that is a fair, constitutional application of power by the state legislatures; however, all things in this case are not equal. Despite the opinion of the Supreme Court of the Plessy era, the presence of the 14th and 15th amendments removed promotion of racial discrimination from the arena of legislative competence. The Constitution was amended to reflect a new standard of fairness, which was not applied by the Supreme Court until the Brown decision 100 years later.