Today’s Topic Continued: A Constitutional Conversation
I have 100 things to do between now and my wife’s 60th birthday party in August, but I’ll give it a try.
In continuation of the conversation between Milton Scritsmier, I bring forward the following. I apologize to Milt because I can no longer go back through the sections and know that I won’t miss something, so I’ll include all of the applicable quotes without editing for purposes of not being seen as dodging answers.
Now let me be clear. I may not answer a particular point, and it may be an oversight on my part or a conscious decision, but I will be including all of the communications that pertain to what I actually answer.
Milton said:
"Brown v. Board of Education" has (or perhaps had...) a lot precedence today. But at the time of the ruling it was a radical departure from previous precedence. We'd had decades of de jure segregation and it was at that time generally considered the norm. What right did the Court in 1954 have to throw out precedence that the Supreme Court does not enjoy today? How did a Court capable of imposing busing on states and redrawing school district maps evolve into a Court that today is not allowed overturn or modify earlier decisions?"
My response is the failed policy of the Constitution describing a black man as 3/5ths of a person for purposes of electoral votes in the south. This inherently defined the worth of a black human’s life, which had been previously described deserving "life, liberty and the pursuit of happiness" in the Declaration of Independence. Once Jefferson supposed that "all men are created equal" the only requirement left was to specify that a human of male gender indeed was created equal regardless of the color of their skin. And with suffrage we already have a definition that includes white women amongst those "equal".
And so rather than the Warren court looking at just the Constitution they chose, and appropriately so, the underlying foundation of the Constitution, which was the Declaration of Independence.
Prior to the Warren court most courts were disposed to simply apply the interpretation of the Constitution as written, but unless one realized that the Constitution is just a set of rules on how to govern with the Bill of Rights describing what the Government cannot do against the citizens, then one doesn’t get the whole picture.
For indeed this government wasn’t founded upon the Constitution, it was founded upon the concepts in the Declaration of Independence, which defined the basic philosophy of the individual being "created equal". The Constitution only defines the working of government, not the ideals and philosophy that distinguishes just how valid the Constitution is as the best definition of government in the world today.
Brown v. Board of Education needed to be brought to the forefront in the effort to expand the true meaning of "equal", and equal didn’t mean equal but separate, it meant a black and white equal (excuse the pun) as in "either it is or it is not".
The case brought forward a specific in terms of applying education, but how, if both blacks and whites could learn to translate Socrates, Plato and others, would any equality be achieved if only one group was not allowed to express that knowledge, much less use the information to build a better life? In fact, to build yet a better America?
And this brings me to your next question.
"For example, is there a point at which de facto segregation is really just the places people choose to live? Fifty years ago nobody could even imagine a time when that might be the case. Now we see it perhaps just a generation or two away. If this happens, does the Supreme Court have the right to modify "Brown v. Board of Education" so that people are not "integrated" against their will?"
Your question begs some inquiry as to what you actually meant to say. "Integrated against their will" has never been a question of equality. Segregated against their will is the norm for an establishment of equality that makes some more equal than others. Since all men are created equal, there is no "more equal" and still further, segregation cannot be a concern because there is no such thing as segregation.
Your assumption is that some have a choice of segregation and so choose that segregation, and this may well be true in life, but not in government. The real point is that the majorities of "unequal" equals don’t have a choice of segregation and thus don’t have a choice at all. Equality negates the unavailability of choice. Segregation by outside forces, such as the availability of housing and schools in "other than" white areas defines unequal more effectively and nefariously than the Constitution’s 3/5ths of a person designation for slaves for votes the white people get yet the black people don’t have a choice in. How negative for racial and gender equality was this?.
First off, it sanctified slavery in the Constitution, and it denigrated a human life by placing a value on that particular life. Did Ben Franklin have a value on his life? Were his works, his jeopardy in his experiments, and his patents, inventions and such a sum total of what his humananity encompassed? Then how about his diplomatic acumen? Would Booker Washington have ever been appointed to a post he may well have been able to perform, such as the Ambassador to France?
But the point is when one has a choice when a choice can be made. If one doesn’t have a choice, and another does, then one is being denied their choice and as such segregation becomes the norm. Don’t get me wrong, we’re not talking about 100% segregation, but we are talking about segregation as being a battlefield that needed to be overcome.
The Warren court risk the ire of the "segregation by choice" populace by deciding that the Constitution spoke to all of the people based on the precepts presented in the Declaration of Independence.
So how now can I rail against this current Supreme Court who choose to put America back 100 years? That’s easy. I don’t know that the country can stand another fight to restore the rights of the entire people from 100 years ago, and I’m pretty certain that the fight shouldn’t have to be fought again. The matter only needs to be presented to the Supreme Court in terms that doesn’t allow for the court to ignore all the documents that establish the United States of America.
The construct of "strict Constitutional interpretation" is a fallacy because the Declaration of Independence was the guiding document to establishing the workings of the Constitution. If one doesn’t allow for the ideology of the founding document then subsequent documents actually hold no meaning.
Without the Constitution the Bill of Rights hold no sway. Without the Declaration of Independence the Constitution has no foundation, and without the Magna Carta the Declaration of Independence has no precedence.
Suddenly stare decisis takes on a different meaning, doesn’t it? In fact, no stare decisis was ever in place from a previous decision prior to the decision in Brown v. Board of Education (Topeka). Therefore the recent Supreme Court decision goes against the ONLY stare decisis in Brown v. Board of Education (Topeka) as the available precedent.
So you can’t really get on the Warren court about following precedence because the only precedence was the Constitution allowing for slaves to equal 3/5ths of a human being. As no prior Supreme Court decision was made in the situation, I believe the Warren court should be held in the highest esteem for establishing a court mandated equality for all America's citizens.
I’ll have to go to the next point tomorrow as I have work to do and it’s now past 1 PM and I’ve spent far too much time on the answer.
1:28:42 PM 
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