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Brown v. Board did more bad than good.


            Brown v. Board of Education (1954) was and is possibly the worst decision in all of American history. Not because of its immediate result, which was utterly laudable. The day segregation perished is the same day hate took a powerful blow. Rather, it was Brown's ultimate result which rendered it unforgivable. For the day we tallied the judges' votes, our votes, and our democracy, took a nearly fatal blow. And our republic continues to die a slow death to this day.

Brown is without justification as it turned judicial activism into a reasonable if not commendable means to accomplish political ends. Brown, in essence, gave the court prestige and legitimacy to which it was not entitled. And as a result, many are fine with if not in awe of the fact that an increasing number of fundamental policy choices have been taken away from the democratic public and handed over to what have become oligarchical courts.         
 
Let us first briefly review the appeal of judicial activism. Many observe, quite correctly, that democracy is at times too slow or too swayed by popular prejudices to do good with adequate speed. To be sure, democracy's relatively slower processes of debate, deliberation and compromise, do put it at a disadvantage when addressing issues which call for quick and decisive action. Many are subsequently quick to call upon rulers who are less responsive to the democracy, and thus more decisive, in order to help us through and save us from time-sensitive calamities. Judges are but one form these saviors take.
 
Because judges on the Supreme Court are life-tenured and unelected, they are especially immune from the rebuke of the governed. This is their appeal. This is also, however, the reason we should be weary of judges who need not account to the public for their policy impositions. Put differently, to fully embrace these philosopher kings as the final arbiters of policy -- as many have for abortion,  same-sex marriage, capital punishment, government treatment of religion, or our conduct towards prisoners of war, to name a few -- is a severely misplaced allegiance. For although democracy is slower than its competition, it is also wiser than its competition; it more frequently gets things right.
 
Undermining this utterly sensible principle is precisely how Brown has dealt democracy a serious blow. Prior to Brown, that the judiciary was not as good a policy maker as the legislature, was not much of a controversial idea. Most agreed that the more democratically accountable legislature was more attune to -- and thus, in the end took better care of -- the people, our rights and our liberties. That is to say, an overwhelming majority used to be commanded by the  common sense precept that it is the legislature who will better protect the weak who are good from the strong who are evil, by creating an environment which allows for the weak to take care of themselves.
 
But after Brown, far too many people have grown up to believe that an elite few are in many if not most cases better protectors of our rights and liberties. Indeed, whenever one chastises a judiciary for legislating from the bench, there is an inevitable response. That is, that detractor of judicial rule and thus the champion of democratic governance, is compared to a detractor of desegregation and thus a champion of racist oppression. Of course, then, we need the judiciary to tell us which behavior should be encouraged through legal marriage or in what cases an unborn baby's life is without more worth than a fingernail or dog. According to this view, the democratic process just can't possibly know when something is a "right" which needs to be protected from the majority's prejudice. It is not like the Bill of Rights or the 14th Amendment were products of democratic will (insert sarcasm).
 
Without Brown's emotional talking points, however, there is little to support this love of judicial rule. Indeed, the arguments which belie judicial activism's merit are legion. But most damaging to notion of rule by judicial fiat is such an oligarch's plain inability to get policy decision's right as often as democratic processes. If nothing else, most would agree that history has taught us that governments which are more responsive to the people are governments which, in the final analysis, treat the people best. While an oligarch, for instance, may have given us desegregation a bit before the democratic public would have, non-democratic judges also gave us abortion without reasonable restriction, religion's eviction from the public square, and of course, Dred Scott together with the belief that blacks are mere property to be returned when lost.
 
           
The point of all this being that the judiciary can do it faster and does, at times, do it right. But possibly due to the speed of its decisions, or the elitist, detached, and misguided pitfalls to which all oligarchies are susceptible, democracy is still the better choice. So while the judiciary got lucky with Brown, let us not invoke Brown to tear down the democracy it purports to serve.
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Is human life really worth it? Part II

So far we have discussed in Part I that an honest and consistent attribution of value to human life, one that allows for the best functioning society, requires it to hinge both on one's ability to exist mostly independent of external support and to be self-aware.  Now I will attempt to make the case that although many secular people may find these two criteria sufficient, more is needed. To begin with, we need to bring into the calculus not just the actual consciousness of human life, but the potential for same.  Without this addition, the contradictions abound.

First let's start with an illuminating example.  Many people may say it is moral to pull the plug of a human in a persistent vegetative state, because his consciousness or independent existence is no more.  Yet what if you were told, as Judge Bork's wonderfully insightful hypothetical presents, that in 4 months that human will awaken to be a vibrant and fully consciousness human being? Is it still moral to pull the plug?  I hope this hypothetical and the contradictions and inconsistencies it brings to the forefront at least give one pause.

Equally unsettling, however, is another conclusion we must come to if potential for consciousness is not part of the moral equation to affording value to human life.  For those who have even seen a newborn, despite loving them with all your heart, even a parent of one must admit they have less consciousness and self-sufficiency than a 6 year old dog.  So if we end the inquiry where many secular people wish we would, to what extent are we willing  -- or in the long run, able -- to turn a blind eye to what our morals will compel us to value more?  How do we account for our presumed greater valuing of the baby who has less consciousness than that of a dog whose consciousness is, in almost every way, greater and more profound? Is it not the potential consciousness of a baby that gives it more value? These are serious questions that, I think, deserve serious and honest thought.

Nevertheless, even if we include the potential for consciousness in our analysis, we still come up short if creating a functioning society -- one whose principle underpinnings are intellectually consistent and honest -- is our ultimate goal.  Think about this: is the life of severely mentally retarded person, who presumably will never have as much consciousness or self-sufficiency, less valuable?  Hitler thought so.

Still missing, therefore, is the acknowledgment that all human life is valuable, if for no other reasons, because we are all created in God's image.  Only when we take this belief, together with the above criteria, can we drive the final nail into the coffin of those who wish to rid human life the profound and lasting value it deserves.  In addition to the inconsistencies set forth above, two pitfalls await a society that does not subscribe to the belief that human life is sacred because God said so. 

First, all that we put forward prior to the invocation of God is based on what I hope is a collective belief system held by most good human beings.  But bad human beings do exist. And without a divine and thus objective source for human life's value, there is nothing to say the belief of those humans which we label as "bad" is any less moral or right.  Put differently, if human life's value is just a rational human construct, created by humans and for humans, it can be broken down, diluted or even destroyed by those same humans and for those same humans.  Say what you wants of the pitfalls of divine and dogmatic belief, but such belief sure does provide a far stronger foundation to the few beliefs we would like impervious to human manipulation and destruction. I submit that human life is one of those beliefs. 

There is also a second, or at least corollary, pitfall that is averted by invoking God.  If just a construct of man, human life's value can more easily be compromised and may even be viewed as not supreme to anything.  That is to say, even if we meet a person who does in fact subscribe to this rational analysis establishing human life's worth, there is little to stop them from valuing something like the environment or animals just as much, or more.  True, they will need to find new criteria to reason out why those things have value, but nothing in the above analysis says that which is conscious and  self-sufficient is of greater value that all the trees in the world?  For that we need an additional belief, one which is best supplied by faith in a God who lovingly created us in his image.

In the end, my point is not to say that without these three criteria, a person or society is bad -- however one defines that term.  Rather, my point is that without these three foundations, the value of human life is too arbitrary and more easily discarded.  It is surely not as strong as it could be -- or should be.

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Is human life really worth it? Part I

            Based on what do we afford value to human life?  In most cases, answering this question is of no moment.  The fact that human life has great value is or should be axiomatic. Therefore, defining by what criteria we actually find human life to possess worth does not deserve much of our intellectual efforts.  But, especially on the margins of the human experience, pinning down what exactly we find worth preserving is of great import.  That is to say, when discussing the many situations in which people find it permitted to extinguish human life -- such as abortion, war, capital punishment or euthanasia -- establishing what gives human life its worth is an intellectual exercise well worth our time. 

            It appears that if a society's value of human life is to be both intellectually consistent and honest, said value must be found from three sources: independent existence, consciousness and divine gift.  Many find that one, two or a superficial collection of same are sufficient to sustain a good and functioning society.  But, as shown below, this belief is misguided and naive.  Without all three, society's value of human life is doomed to either exist at a teetering and arbitrary level or one whose double standards are detrimentally legion, or both.
            

An existence that is for the most part independent -- or largely self-sufficient -- appears to be at least a starting point to rationally affording value to life, especially that of humans.  A life that is partially, let alone fundamentally or wholly, dependent on some other entity abdicates some of its worth to that on which it depends.  For instance, the value of a human life which must forever be attached to a machine to breath is, as unfortunate and callous as it may sound, belittled  by certain economical or moral considerations to which another human life would hopefully never need to answer.  We speak of the potential for morally unplugging a person from a machine, because we just don't have the resources to maintain said machine; but most never speak of the possibility of morally unplugging a child from his food, merely because we just don't have the money for it this month.  

            All the same, this is not to say that a dependent child's life has less value than that of a self-sufficient adult, the inevitable result if here ends our analysis. To be sure, because taken to an extreme, or taken by itself, judging human value by this criteria alone can in fact lead to some perverse devaluation of human life, we must move on to the next factor -- consciousness.

The self-esteem movement of the 80's got something right. There is something to say about knowing your own worth before expecting others to acknowledge same. It stands to reason, therefore, that an entity who can sustain itself independently does not have much worth if it is not even aware of its own self. A plant can exists independently, so to speak, but because it is not self-aware, its value is infinitely less than that of a human.  Consciousness is therefore a fundamental requirement to affording value to human life. 

For many secular people, here ends the inquiry. For example, when an unborn baby - or more affectionately called, fetus -- reaches a certain level of consciousness and independence from the mother, it is magically and abruptly imbued with immeasurable value; thankfully, for now, the baby is given more worth than the fingernail-like value some grant it prior to its birth or viability.  Significantly, though, the fact that an unborn baby has, if left alone, the likely potential for the full consciousness of an adult human is of no concern to these progressive minds.  Yet the double standards that surface as a result of subscribing to this belief should persuade any fair-thinking mind to abandon it, for it is fundamentally flawed.

            In the Part II we will explore these contradictions.  

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Our republic is faltering; do not let it die.

Let's assume our republic is dead. Let's imagine that the oligarchical courts reign supreme. Finally, let's act as if those courts must at the least pay lip service to a document -- the Constitution -- from which in actuality they rarely seek guidance. How would such a group of philosopher kings operate when defining legal marriage?  By what criteria would such governing judges decide whether the government should encourage certain relationship choices?  Put differently, how would these wise judges figure out what type of relationships deserve the government's endorsement of "legal marriage" through things like tax breaks.
         
            If these judges wish to maintain a bit of constitutional integrity, it appears the ambiguous words of the 14th Amendment are the best empty vessels in which they can pour their personal notions of which relationships the government should encourage. In particular: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."
 
Indeed, it has been argued by many that those engaging in same-sex relationships must be afforded  "protection" that is "equal" to any other "person" within the court's "jurisdiction."  Thus, because a homosexual is undeniably a person within the same jurisdiction as many heterosexual people, their relationships must be given the same legal endorsement as that of heterosexuals. Putting aside whether legal encouragement of a relationship can be fairly called "protection" under the law, the above exegesis does not seem unreasonable.

Upon a bit of further reflection, however, one must conclude that if read like this, the Equal Protection Clause is meaningless -- or worse, too meaningful.  To be sure, when read in such a sweeping manner, the Equal Protection Clause would leave "unconstitutional" most if not all laws in its invalidating path.  To illustrate this truth, let's first take an example within the same realm of political and cultural thought.

Under such an understanding of Equal Protection, no law encouraging any form of marriage would remain. Is a single individual not a "person" within the same "jurisdiction" as couples, yet still not deserving "protection" that is "equal" to that of those couples? Who are we to make distinctions based on the conduct of this class of the citizenry? Just like democratic channels are too stupid to figure out that heterosexual behavior is not more deserving of government sanction than homosexual behavior, so, too, the democratic public is too stupid to be trusted with determining that monogamous and committed sexual behavior is more deserving of government sanction than is the sexual behavior in which single people frequently engage. 

Some may attempt to skirt by this screaming inconsistency by just discarding legal marriage altogether, arguing that we should indeed get rid of all government sanction of one's relationship and sexual choices. If that is the case, then what of the differences drawn between those engaging in heavy herion abuse and those that do not. How can the government choose to put only one in jail? Does that drug addict not, as a person and consenting adult, deserve equal protection under law regardless of the behavior in which he engages? 

            And even if you wish to legalize all drugs -- what about one who take another's property? Why can we imprison the robber and take away his equal protection just because he conducts himself in a different way? Who are we to judge which behavior deserves government encouragement or admonishment and which does not?
 
In the final analysis, being honest one must conclude that equal protection does not mean treating every behavior in the same way. Such an understanding would invalidate almost every law, as every law makes distinctions based on conduct. Rather, affording equal protection merely means that we must treat people the same to the extent they engage in the same behavior. Marrying a women is not the same as marrying a man; men and women are not the same; and a father or mother is not obsolete.

            Before I go, let me add just one more thing: It may seem as though my 
often-repeated issue with same-sex marriage stems from some personal animus towards gays. I have none. While I value the unique and irreplaceable synergy men-women relationships offer society and children, what is most angering is the same-sex-special-interest group's repugnant tactics, whereby they use the courts to usurp the democratic channels that do not give them what they want. At the present time these tactics may just force upon us same-sex marriage, before it gave us Dred Scott and the view that black people are property, and what it may reap in the future is too scary to even think about. My position is simply that a supreme governing class like the courts, one which is not responsive to the people through elections, must not be tolerated in a country founded upon notions of self-governance. Why is that so controversial?
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