That’s the theme of a mini-symposium over at the
Library of Law and Liberty site. Mark DeGirolami wrote the lead essay. My
response is here. Here’s a teaser:
Early 20th century
Progressives were generally indifferent, at best, to minority rights, but once
modern liberals became enamored of them, it served to undermine any lingering
fealty to tradition. After all, what was more traditional in American society,
especially in the South, than discrimination against African Americans? And
indeed, many apologists for Jim Crow pointed to Southern tradition, and to
decades-old judicial precedents such as Plessy
v. Ferguson (1896), to defend state-imposed
segregation. If ever a case was destined to undermine the power of tradition in
American constitutional law, Brown
v. Board of Education (1954) was it.
A decade after Brown, the Supreme
Court invalidated all 50 states’ systems for allocating districts in their
legislative chambers in favor of requiring equal population districts under the
banner of “one person, one vote.” Some states argued, to no avail, that their
systems could not be unconstitutional because they mimicked the way the
Constitution sets up the federal House and Senate, with the former based on
population, and the latter based on geography. In other words, these states had
about as strong an argument from constitutional tradition as one could imagine,
but that failed to impress the majority. The Court was more concerned about a
combination of “one person one vote” egalitarianism and a felt need to reduce
the power of conservative rural forces in the states to stand in the way of the
national Progressive agenda.
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