Rethinking "fair but not right"

I was reading through our Governance Imperative article the other day and ran across the following two paragraphs:

The outrage expressed by the different parties over "activist judges" usually involves a case where a judge declared something unconstitutional. While that's not new, there is a set of decisions that have something in common to cause the outrage. What seems to cause the most outcry are issues decided by the courts that seek to resolve debates over public morality. The Constitution simply is not concerned with weighing in on moral questions, and any judicial excursion into questions of rightness is inappropriate. Same-sex marriage, access to pornography, and abortion are morality debates which the courts have recently inserted themselves. Civil rights is one that is a close equivalent, except there is a constitutional basis in the 14th and 15th Amendments (passed after the Civil War to outlaw slavery and guarantee equal protection to black Americans) upon which the courts could base their rulings.

And, tangentially, examining the courts' handling of civil rights issues throughout the late-nineteenth and early-twentieth centuries only supports the contention that the courts' recent foray into matters of morality has set them farther adrift from their original charge to determine issues of fairness. The Jim Crow laws, passed by Southern states in the wake of the Civil War to ensure the subjugation of blacks, were good examples of legislation that might have been fairly applied but were not right. The courts were very slow to rule in these matters and only when there were structural issues (i.e., governance) to consider did they step in. Between Plessy v. Ferguson (establishing the constitutional acceptability of forced segregation in the South) and Brown v. Board of Education (mandating racial integration in the schools), the Supreme Court's opinion on what was fair regarding "separate but equal" shifted. The boundaries of structure and fairness had finally been broken, so the courts had to step in. The courts are about fairly applying the law. This is a good case study on how precedence can change; the assumptions of fairness that previous rulings were based upon may be shown to be no longer hold. Once it was shown that the Jim Crow laws could not be fairly applied, the Court declared the "separate but equal" concept unfair, hence unconstitutional.

While I still agree with the underlying principle we were trying to illustrate in the example regarding "separate but equal," I don't think that the example we used is valid or helpful. It's not valid because of the very existence of the 14th and 15th Amendments, which prohibit the states from abridging "the privileges and immunities of citizens of the Unites States" and guaranteeing every citizen the right to vote, regardless of "race, color, or condition of servitude." Of course, this is exactly what the Jim Crow laws did, and for this very reason the Plessy court should have struck them all down as unconstitutional.

Beyond this concern of validity, our use of Jim Crow laws as an example of government action which might be fair but not right tends to cloud the underlying principle. There is still too much emotion and pain behind the Jim Crow laws to speak of them in this way. The wounds are still to fresh to try to speak about them with a historian's cold demeanor. Our use of the word "fair" in the context of the Governance Imperative is a specific one to communicate issues of governance with which the Constitution and the courts are specifically concerned. Our use of the word "fair" is set within contrasting use of "issues of morality," with which Legislatures are specifically concerned. It was never our intention to argue for the fairness of "separate but equal" in the broader sense of "fair." We agree and affirm that the treatment of blacks by the southern states prior to the Brown decision was patently and tragically unjust and unfair.

While our use of the example of the "separate but equal" doctrine might have been a poor example of courts focusing on issues of governance, the issue remains. The courts are called by the Constitution to ensure that the laws of society are evenly applied in accordance with the constitutional principles of balanced, deliberative government, regardless of the general perception of morality behind the laws in question. If a group (or even society in general) has a problem with the morality of a law, then there is plenty of recourse through the legislative and executive branches to change or rescind the law. The courts are not meant to serve that role.

So I propose we strike the example of Plessy as an example of an issue of governance. This means we need a new example of something that is "fair" (in the governance sense) but not right. Any thoughts?