The Constitution was drafted over 200 years ago by people with very different concerns and values. They didn’t value gender or racial equality as we do. They certainly didn’t believe in a right to sexual autonomy. Their notions of free speech were vastly more restrictive than our own. And, despite the First Amendment to the Constitution, they had no problem with established churches or public displays of Protestant Christianity by government officials that would strike us today as deeply exclusionary.
And the Supreme Court for much of its history has approved of racial segregation and disenfranchisement, the subordination of women and gays and lesbians, the criminalization of dissident speech, and a very narrow conception of the separation of church and state and of the rights of criminal defendants.
In the end, we, the American people, determine what sort of country we live inthe Constitution and the courts play a relatively marginal role in that process.
Bernstein's earlier dissent here.
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