I’m working on a soul-crushing deadline. But I’ll tackle this in the AM. It’s a fair objection — from a number of readers — which deserves to be responded to. Any legal eagles around here who want to beat me to it, feel free. Otherwise I’ll see ya tomorrow:

Jonah,
Your “Better Off Dead” column dismissed the need for a living
constitution by noting that slavery and women’s suffrage were
abolished and established, respectively, by the 13th and 19th
amendments, respectively. But what about school segregation? If
Justice Scalia had been on the Supreme Court in 1954, would Brown v.
Board have been decided by a margin of 8-to-1?
Consider Scalia’s assertion in his McCreary dissent, derived from the
dead constitution philosophy, that, “it is entirely clear from our
Nation’s historical practices that the Establishment Clause permits
this disregard of polytheists and believers in unconcerned deities,
just as it permits the disregard of devout atheists.”
Now consider this excerpt from Justice Brown’s majority decision in
Plessy v. Ferguson (1886): “The object of the [Fourteenth] amendment
was undoubtedly to enforce the absolute equality of the two races
before the law, but, in the nature of things, it could not have been
intended to abolish distinctions based upon color, or to enforce
social, as distinguished from political, equality, or a commingling of
the two races upon terms unsatisfactory to either. Laws permitting,
and even requiring, their separation in places where they are liable
to be brought into contact do not necessarily imply the inferiority of
either race to the other, and have been generally, if not universally,
recognized as within the competency of the state legislatures in the
exercise of their police power. The most common instance of this is
connected with the establishment of separate schools for white and
colored children, which has been held to be a valid exercise of the
legislative power even by courts of States where the political rights
of the colored race have been longest and most earnestly enforced.”
On the front page of the NY Times on the day after the Brown v. Board
decision, Senator Eastland of Mississippi was quoted as saying, “The
South will not abide by nor obey this legislative decision by a
political court.” I’m sure many other opponents were saying things
like, “Nothing stands behind the Court’s assertion that [segregation]
is unconstitutional except the Court’s own say-so.”
So, my question for advocates of a “dead constitution” is whether the
country would have been better off if it had waited for the
legislative process to eliminate “separate but equal”? Would school
segregation today be illegal in every state? (Remember that in 2000,
removing the ban on interracial marriage from Alabama’s constitution
won support from only 60 percent of voters!)
Thanks for your frequently thought-provoking, often humorous and
sometimes infuriating columns.