As a brief companion to the prior post…
I frequently ridicule the court, as it is populated by such pompous star-gazers. But the truth is they have an impossible chore before them. The constitution was written for a homogeneous society of high trust and personal responsibility. It does not function in anything else. Because it does not function in its original form, justices have turned to invisible penumbrae as a means of changing the rules necessitated by a changing society.
When America actually was “One nation under God” a great deal of personal latitude could be safely enshrined. If everyone mostly agrees on the fundamentals, then the government can have a light hand in making sure social harmony holds. Because it holds organically within the natural bonds of kinship, and not as a function of an overbearing state. In my grandparents’ prime, the federal government could have completely vanished, and they wouldn’t have known until someone mentioned it a month later in Sunday school.
But when your country is not an organic creation, but a political one, freedom won’t fly. If we actually had freedom of speech then a businessman could freely say “I don’t serve blacks” outside his storefront. But that would produce riots and runs on toilet paper. So we can not have liberty because we have diversity. They do not coexist. Thus courts are burdened with producing rhetoric that camouflages our retreat from one under advance of the other.
Imagine just as well if there were an active 10th Amendment. The federal government’s rule would immediately collapse into 50 distinct and frequently hostile state pieces. These resulting in wildly divergent cultural and legal frameworks. This would prompt many to ask the already obvious question: Why are we living in the same country as them?
Society is going to be homogenized to function. And when you don’t have natural homogeneity, you can count on getting it artificially. That’s what the many-tentacled “civil rights” edifice is all about. Enforcing an artificial social gravity on what demographically may as well be the moon.
So consider our SC members in the best possible light: as vain, preening, often overtly-tribal adulation-seekers who nonetheless recognize the impossibility of maintaining a document they have sworn to defend. In that situation what do you do? The answer is you pen the most florid bullshit possible to keep the lid screwed down. Diversity is our strength.