# Is social reform through the courts ever preferable to reform through the legislature? **URL:** \ **Category:** Great Debates\ **Created:** [January 27, 2011, 11:58am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169 "2011-01-27T11:58:26Z")\ **Posts on this page:** 10\ **Page:** 3
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 29, 2011, 1:18am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/41 "2011-01-29T01:18:15Z")
> [@Skald\_the\_Rhymer](#): > > It seems unlikely that I’d be able to vote in the South if awarding black people the franchise had been left up to the legislature. White folks in Tennessee in the 50s & 60s were not going to go for it. And what did the courts do to fix this? The right to vote was guaranteed by the Fifteenth Amendment; the use of a poll tax to restrict access to the polls was elminated by the Twenty-Fourth Amendment – both passed by legislatures. What are you thinking of? ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [January 29, 2011, 1:23am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/42 "2011-01-29T01:23:50Z")
> [@Bricker](#): > > And what did the courts do to fix this? > > The right to vote was guaranteed by the Fifteenth Amendment; the use of a poll tax to restrict access to the polls was elminated by the Twenty-Fourth Amendment – both passed by legislatures. > > What are you thinking of? Yes, and all those state and county and sundown laws that were passed subsequently that kept those amendments from being enforced were also passed by legislatures. It required a federal court (the Supreme one, actually) to make enforcement of those amendments effective. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 29, 2011, 1:48am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/43 "2011-01-29T01:48:39Z")
> [@jayjay](#): > > Yes, and all those state and county and sundown laws that were passed subsequently that kept those amendments from being enforced were also passed by legislatures. It required a federal court (the Supreme one, actually) to make enforcement of those amendments effective. Specfically how? What decision(s) did this? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 29, 2011, 11:22am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/44 "2011-01-29T11:22:35Z")
> [@Bricker](#): > > Specfically how? What decision(s) did this? It’s great the 24th Amendment and Civil Rights Act came about but those were only after near 100 years of attempts at disenfranchising the black population. Most of those attempts were struck down by the courts. I do not know but I would guess part of what helped the Civil Rights Act and amendment to get the support they did were the consistent failures in the courts at these attempts. Even if that is not so, prior to the amendment and Civil Rights Act would you deem the court’s actions inappropriate as enacting social reform that overrode the will of legislatures? > [@](#): > > In Guinn v. United States (1915), the Supreme Court invalidated the Oklahoma Constitution’s “old soldier” and “grandfather” exemptions from literacy tests, which in practice had resulted in blacks being denied registration to vote, as had occurred in numerous Southern states. This decision affected similar provisions in the constitutions of Alabama, Georgia, Louisiana, North Carolina, and Virginia election rules. Oklahoma and other states quickly reacted by passing laws creating other rules for voter registration that worked against blacks and minorities.[32] This was the first of many cases in which the NAACP filed a brief. > > In Lane v. Wilson (1939), the Supreme Court again invalidated an Oklahoma provision designed to disfranchise blacks, the one adopted to replace the clause struck down in Guinn. This clause permanently disfranchised everyone qualified to vote who had not registered to vote in a twelve day window between April 30 and May 11, 1916, except for those who voted in 1914. While designed to be more resistant to facial challenges, as the law did not specifically mention race, it was struck down nonetheless, partially because it relied on the 1914 election which itself was held under the rule invalidated in Guinn.[33] > > In Smith v. Allwright (1944), the Supreme Court reviewed a Texas case and ruled against the white-only primaries prevalent in the South. In major cities, civil rights organizations moved quickly to register black voters. For instance, in Georgia, in 1940 only 20,000 blacks had managed to register to vote. After the Supreme Court decision, the All-Citizens Registration Committee (ACRC) of Atlanta started organizing. By 1947 they and others had succeeded in getting 125,000 African Americans registered, 18.8% of those of eligible age.[34] > > Each legal victory was followed by renewed efforts to control black voting through different schemes. In 1958 Georgia passed a new registration act that required those who were illiterate to satisfy understanding tests by correctly answering 20 of 30 questions related to citizenship posed by the voting registrar. Despite advances by many blacks in education, since the voting registrar was the judge of whether the prospective voter answered correctly, the results in practice were a suppression of black voting. In Terrell County, for instance, which was 64% black, after passage of the act, in 1958 only 48 African Americans managed to register to vote > > SOURCE: [Disfranchisement after the Reconstruction era - Wikipedia](http://en.wikipedia.org/wiki/Disfranchisement_after_the_Civil_War) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 30, 2011, 12:02am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/45 "2011-01-30T00:02:54Z")
> [@Whack-a-Mole](#): > > It’s great the 24th Amendment and Civil Rights Act came about but those were only after near 100 years of attempts at disenfranchising the black population. Fascinating, but really not addressing my question to **jayjay** and **Skald**. To remind you, here is Skald’s quote: > [@](#): > > It seems unlikely that I’d be able to vote in the South if awarding black people the franchise had been left up to the legislature. White folks in Tennessee in the 50s & 60s were not going to go for it. > [@Whack-a-Mole](#): > > Even if that is not so, prior to the amendment and Civil Rights Act would you deem the court’s actions inappropriate as enacting social reform that overrode the will of legislatures? No, because those measures had the effect of denying blacks the right to vote, whihc ran afoul of the Fifteenth Amendment. FIRST the legislature acted, THEN the courts applied that law. The courts didn’t carve out bold new ground. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 30, 2011, 1:16am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/46 "2011-01-30T01:16:40Z")
> [@Bricker](#): > > Fascinating, but really not addressing my question to **jayjay** and **Skald**. To remind you, here is Skald’s quote: Well, **Skald** is right. White folk in Tennessee were not going to go for it. White folk in Tennessee got overridden by the courts and then the federal government (Civil Rights Act) and an amendment thrust on them. Pretty sure Tennessee, left to itself, would have gone there on its own. ETA: Admittedly I do not know Tennessee’s politics…maybe they were cool about it but clearly some states were not cool about it. Insert an antebellum state of your choice as appropriate. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 30, 2011, 2:20am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/47 "2011-01-30T02:20:26Z")
Well speaking as a native Georgian, I can confidently insert Georgia into the mix. Well, rural Georgia. It’s like a different state out there. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [January 30, 2011, 2:34am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/48 "2011-01-30T02:34:08Z")
> [@LonesomePolecat](#): > > And you, of course, get to decide when justice has been served and when it hasn’t, and assume the moral authority to override the principle of majority rule. It helps if you insist that whatever it is you want is a moral imperative on the level of the civil rights movement. Well essentially yes. Per the ninth: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” If you can make a case for an unenumerated right, that the court agrees with, then the Constitution says it shan’t be denied, even if the majority wants it. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [January 30, 2011, 6:31am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/49 "2011-01-30T06:31:15Z")
> [@Laudenum](#): > > Once more I am in a debate, but this time the topic is: > > This puzzles me, because as far as I’m concerned it is ALWAYS better to seek reform through the legislature. Reforms forced by an unelected judiciary are undemocratic and tend to be resented far more than changes introduced by the elected representatives of the people. > > Now, on a practical level, I know that sometimes it is _easier_ to get reform through the courts, but reading the motion I could help but think that this is never the better route. > > If I was to map out a ‘morally superior’ route, it would go: > > Referendum \> Elected Legislature \> Unelected Judiciary > > Any thoughts from people? The problem with your theory was the subject of some thought by the founding fathers. They were concerned with “tryanny by the majority” and the sort of decisions that would be reached by the masses in the throes of heated something or another. They took pains to avoid direct representation because they didn’t actually trust the masses to make decisions only to choose the people who would make the decisions and originally they didn’t even choose those people. They chose the people who would choose the people who would make the decisions (see Senators and President). ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 30, 2011, 7:53am UTC](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169/50 "2011-01-30T07:53:18Z")
> [@The\_Tao\_s\_Revenge](#): > > Well essentially yes. Per the ninth: > > “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” > > If you can make a case for an unenumerated right, that the court agrees with, then the Constitution says it shan’t be denied, even if the majority wants it. Something I learned reading the Dope: While the 9th amendment sounds nice it is almost never cited by the courts. Apparently they do not know what to do with it so, while it is there, it apparently is cited about as much as the 3rd Amendment. Just tossing that out… [Previous page](https://boards.straightdope.com/t/is-social-reform-through-the-courts-ever-preferable-to-reform-through-the-legislature/569169.md?page=2)