At least once recent column upbraided President Bush for joining in the celebrations of the 50th anniversary of the Supreme Court’s ruling in Brown v. Board of Education while, on that very same day, decrying “judicial activism” on the part of the Massachusetts Supreme Judicial Court in the case of Goodridge v. Department of Public Health. In essence, the argument goes; Brown was a positive example of “judicial activism” so praising it while attacking “activist judges” is hypocritical. Implicit in this argument is the acceptance of the doctrine that homosexual marriage is a fundamental civil right which the American people will come to accept just as they eventually accepted racial integration.

This line of thought totally ignores the context of the Court’s ruling in Brown. The Warren Court was certainly generally quite activist in its orientation. However, in Brown the court was not asserting itself as an activist- it was correcting the odious and activist decision that the court had made fifty-eight years earlier in Plessy v. Ferguson.

“Judicial activism” as an American problem is actually quite old. When Chief Justice Taney used the Dred Scott case to declare that blacks were not citizens of the United States and, therefore, had no rights that a white man was bound to respect he was not interpreting either the laws or the Constitution of the land, he was abusing his power and authority to give his own beliefs the force of law by judicial fiat.

Similarly, the Court’s ruling in Plessy is a perfect example of Judges reading into elements of the Constitution elements which no plain reading of the text would ever uncover. Thus, in Plessy, the court decided that the 14th Amendment, which had very plainly been written for the purpose of assuring the equal rights of American blacks, suddenly gave states the right to order entirely separate accommodations for different races on the entirely specious logic that forcing blacks (or even an individual, in the case of Mr. Plessy, of 1/8 African descent) into separate facilities was only a “badge of inferiority” insofar as blacks choose to interpret it as such.

There was about as much of a Constitutional basis for the court’s ruling in Plessy v. Ferguson was there was for its discovery of various Constitutional “penumbras” which somehow authorized the court to devise and enshrine an entirely arbitrary set of rules for abortions in Roe v. Wade. As much as Roe (or Goodridge or Lawrence v. Texas), Plessy was an example of an abhorrent decision made by the court to match with the fashion of the times, rather than the letter of the law.

As Justice Harlan, in his dissent in Plessy, explained, the purpose of the 14th Amendment of the Constitution should be as plain as day. It was written specifically for the purpose of assuring the rights of the Negro race many of whom, as the Justice points out, had so recently fought for the preservation of the Union. To demand that such a provision be enforced is not to demand that the Court behave in an “activist” fashion, but to demand that it properly interpret the laws of the land.

There is no connection between this and the argument for gay marriage. “Equal protection” cannot be reasonably interpreted to provide unlimited rights to an individual to marry whomever the want, regardless of outside factors. All individuals in the land are (or rather, were) subject to the very same restrictions as to whom they could marry- an individual of the opposite sex who is over a certain age (which varies by state). No one was being discriminated against unless you believe that the Constitution carries within it some provision which requires the government to recognize and sanctify your “love” as a means of making you feel better about yourself.

Of course, in the end, those comparing Brown and Goodridge are probably going to win, if only because they command the cultural and linguistic heights in the battle. Given the chance, neither the people nor the people’s representatives ever would have voted for gay marriage, but the campaign of terror waged by gay rights activists in recent years have left so many decent people desperately afraid of being smeared as a “homophobe” that the average person will never dare to speak against the love that dare not speak its name.

Still, I hold out a slim hope that, at some point in the future when the tides of popular culture are flowing in another direction, some future Court might well decide to revisit Roe, Lawrence, and Goodridge (or whatever Supreme Court case inevitably supersedes it and nationalizes homosexual marriage) with the purpose of restoring the lost liberties of the land.