"You’re comparing what’s clearly in the 14th Amendment to things that are pulled out of thin air."

This argument is raised frequently by conservatives who bemoan "judicial activism" when it comes to same-sex marriage, but ignore the past involvement of courts on anti-miscenegation and segregation laws. Were these racist laws "clear" violations of the 14th Amendment?

This was my reply at one blog...

“Clearly”? Surely you jest. Such is easy to say now decades after the liberal Warren Court came out with their Brown vs. Board ruling. You have been saying all along that it never occurred to the original framers of the CA Constitution that same-sex marriage was included under the equal protection clauses, yet this “strict constructionism” you trot out is noticeably absent when it comes to segregation and the 14th Amendment. A complete mixing of the races, including intermarriage or even occurrences where blacks might be in authority over whites, was not at all thought to be included in the 14th Amendment. Well, except for a few “radical” Republicans at that time and even many of them with daughters would have balked at intermarriage. Yet you ignore this history because it isn’t useful to your argument now. Why is that? The fact of the matter is that segregation wasn’t seen as violating the 14th Amendment until the Brown decision, something even the late Chief Justice William Rehnquist may have agreed with:

Rehnquist’s memo unambiguously stated that “Plessy vs. Ferguson was right and should be reaffirmed.” It acknowledged that this “is an unpopular and unhumanitarian position for which I have been excoriated by ‘liberal’ colleagues.” But in its key passage, it insisted that “one hundred and fifty years of attempts on the part of this court to protect minority rights of any kind — whether those of business, slaveholders, or Jehovah’s Witnesses — have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.”

Rehnquist went on: “To the argument … that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.”

Rehnquist’s memo concluded that the court should uphold segregation and refuse to protect “special claims” merely “because its members individually are ‘liberals’ and dislike segregation.”

There is no doubt that Rehnquist wrote this memo. But was he speaking for himself?

Testifying before the Senate in 1971, the year he was nominated to the court, Rehnquist said the memo “was prepared by me at Justice Jackson’s request; it was intended as a rough draft of a statement of his views … rather than as a statement of my views.”

The understanding about segregation and the 14th Amendment is summed up in the Plessy decision, using reasoning VERY similiar to what we see today in the current matter:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: ‘This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.’ Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.