Let’s touch on a touchy subject.
Doesn’t it make the Civil Rights movement suspect, their motives suspect, that they simply didn’t use the constitution to pursue their legal agenda? The US constitution has all that shit, all men created equal and that, why didn’t they just use that? I understand that what they were trying to do was extremely tricky. That’s why nobody wants to question them, because it was one hell of a tricky fight. But… Well, unless their motives were different than stated, they may have won a battle just to lose the war. No?
The founding members of the United States were not perfect, and most of them had slaves. But they wrote it right there into the constitution. In very short, clear language. So why a whole fucking bible of convoluted laws to say the same thing?
All (well, “all”) they would have had to do is establish that segregation policies were and had been enacted in violation of the constitution. The constitution governs all states, so “state’s rights” would not have been a viable defense. States don’t have the right to break constitutional law.
And there is one objection that often comes up, which is that common law had previously established that the constitution didn’t really say what it said. But this is a Gothic confusion. Goths have the legal tradition of common law, which governs pretty much everything by default. In England, it is pretty much the only law. But the basis for the constitution, for a constitution, any constitution, is not common law. It’s Roman law. Roman law is a very different animal. It does not rely on the decisions of previous judges to establish laws, but on written codes. It is implicit in Roman law that a judge can fuck up and make a wrong decision, and that is why codifying law in the first place. So, the US has a combination of both, because it still operates with common law, but the constitution is Roman law, it precedes any common law, any previous decisions. For Roman law, which is what the constitution is, all you have to do is prove an action goes against the written law, the code, and that’s a crime. They could have ruled a thousand times before that a certain type of action does not violate it, but that has no incidence on a new case where it is claimed that that very type of action violates it. You are not suing on the basis of previous decisions, on common law, but on the basis of a written code.
Now, it is understandable that most people, specially people that are part of a culture that only has a tradition of common law and in a place where, confusingly, both Roman and common law are used would not understand this, but these dudes were lawyers. Supposedly, super-star lawyers. Now, again, I don’t mean to gloss over the fact that it was a very tricky thing to do. I don’t mean to quarterback a finished game. But not looking at it would be like not to look at slavery because the founding members had slaves and they were obviously (and they were) super radical dudes, who did something extremely tricky.
This subject is so very touchy that even William F Buckley Jr eventually went “fuck it, same difference, the results are what matter.”