When one looks at many other important public policy debates in this country, at some point the courts can and must step in to render a decision that changes the entire debate, and corrects an injustice with the stroke of a pen. In our system of government, the courts have co-equal standing with the legislative and the executive branch, and can overrule an offensive or unfair policy based on Constitutional principles.
Perhaps the most important example of these modern decisions was Brown v. Board of Education, in 1954, in which a unanimous Supreme Court overruled the separate-but-equal policy of racial segregation in public schools, finding “separate educational facilities are inherently unequal” and declared the policy as a violation of the Equal Protection Clause of the Fourteenth Amendment, paving the way for integration. Next came Griswald v. Connecticut, in 1965, when the Supreme Court first identified a Constitutional right to privacy, overturning laws making the use of birth control a crime . Although the Bill of Rights does not explicitly mention “privacy”, Justice William O. Douglas wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections.
Similarly, in 1967 the Supreme Court struck down state laws known as miscegenation laws, that made it a crime for interracial couple to marry, finding those laws a violation of both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. And in 1973, in Roe v. Wade, the court, based on the right to privacy found in the Fourteenth Amendment, ended the ban on abortions, permitting a women to decide whether to terminate her pregnancy.
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