"...In the wake of the Second World War, fought for the principle of the equality of all men and women,..." DK in The Supreme Court and American life post
"...Even though holdouts like Mississippi would have remained for some time, the gain of resolving a contentious issue through the political process, for me, would have outweighed the desirability of establishing the right through the Constitution..." DK
The principle of equality, invoked in the first quote, is what one might call global equality, not merely American national, or American federal, much less states' rights, equality.
In the second quote, principles of equality are also afoot, but the treatment is different, the federal, much less the global, level for resolution, is repudiated in favor of a states' rights treatment of equality.
Why not then go with self determination, call it states' rights, on equality?
This seems to be something like the conundrum Bobbitt discusses in Constitutional Fate regarding substantive due process, but in the context of judicial ethical arguments, rather than as DK puts it, prescriptively, through the states' rights political processes.
After the Civil War, the argument goes, solutions other than something like substantive due process became impossible.
It became: either states' rights or SDP. Horns of a dilemma.
Just to add spice to the discussion, it is always well to be reminded that every state has its own sovereign supreme court.
So, the political process, regarding such contentious things as equality this or that, or fundamental rights this or that, in each state, will have its own special, unique, labyrinthine political (legislative, executive, and judicial) baggage.
"...Even though holdouts like Mississippi would have remained for some time, the gain of resolving a contentious issue through the political process, for me, would have outweighed the desirability of establishing the right through the Constitution..." DK
The principle of equality, invoked in the first quote, is what one might call global equality, not merely American national, or American federal, much less states' rights, equality.
In the second quote, principles of equality are also afoot, but the treatment is different, the federal, much less the global, level for resolution, is repudiated in favor of a states' rights treatment of equality.
Why not then go with self determination, call it states' rights, on equality?
This seems to be something like the conundrum Bobbitt discusses in Constitutional Fate regarding substantive due process, but in the context of judicial ethical arguments, rather than as DK puts it, prescriptively, through the states' rights political processes.
After the Civil War, the argument goes, solutions other than something like substantive due process became impossible.
It became: either states' rights or SDP. Horns of a dilemma.
Just to add spice to the discussion, it is always well to be reminded that every state has its own sovereign supreme court.
So, the political process, regarding such contentious things as equality this or that, or fundamental rights this or that, in each state, will have its own special, unique, labyrinthine political (legislative, executive, and judicial) baggage.
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