For example, many liberals believe that Jim Crow laws or laws giving special privileges to straight married couples (but not gay married couples) should not be permitted even with popular electoral support. I.e., liberals often consider "the citizens of the US were able to elect representatives who X" to be an invalid justification for policy X.

The question is, what principle are liberals using to come up with views like this? Another question in the same line of thinking is: is there a principle beyond "I like/dislike this policy" which the courts can use to invalidate laws? (Note that appealing to court precedents and reinterpretations of the constitution doesn't really answer this, since the court can always re-reinterpret or make a new precedent.)

[1] I hate phrasing it this way, since the feelings it generates ("I {love/hate} liberals SOOOO MUCH") reduce everyone's IQ by about 15 pts.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

I just don't see where you're going. I'm interested, but I'm not following.

If not, you must have some underlying principle that tells you Plessy was incorrect. Or, somewhat tangential to constitutionality, you might have an underlying belief as to what constitutes a legitimate function of the government (e.g., perhaps you believe that regulating same-sex acts is not such a function).

The question is, what is that underlying principle (or set of principles)?

This is what Nirvana attempted to ask, while unfortunately getting bogged down in other far more boring matters.

So, I don't have to reason from first principles to arrive at the conclusion that the 14th Amendment makes "separate but equal" unconstitutional. Brown v. Board lays out the argument that it does. I can't best the argument here in a message board post.

Do you think Brown v. Board is one of the cases SCOTUS got wrong? Genuinely curious.

In particular, I dispute the "disparate impact" theory underlying the court's reasoning, namely that segregation does not qualify as equal protection because it is is disproportionately harmful to blacks.

I don't think disproportionate harm is required or relevant. My first principle is that equal protection is violated when gov_decision(circumstances, race1) != gov_decision(circumstances, race2).

Because of this, it would be relevant for me to cite Clarence Thomas in Missouri v Jenkins: http://supreme.justia.com/cases/federal/us/515/70/case.html But since Brown v. Board doesn't take this same first principle, citing them wouldn't help you understand my views (even if I agree with the outcome).

Presumably, if I knew your first principles (and if we are both completely rational, and you are intellectually consistent), I could predict your opinion on any given case. And that's the question Nirvana was asking - what are your first principles?

I'm not sure I see where you're going. Thomas' reading of Brown v. Board of Ed seems identical to mine:

Public school systems that separated blacks and provided them with superior educational resources--making blacks "feel" superior to whites sent to lesser schools--would violate the Fourteenth Amendment, whether or not the white students felt stigmatized [...]

[...]

Regardless of the relative quality of the schools, segregation violated the Constitution because the State classified students based on their race.

But further: the circumstances of these cases are wildly different. Brown v. Board of Ed was about active, de jure segregation of black people and white people. Missouri v. Jenkins was about a school district that became majority-black as a result of white flight.

Kennedy's concurrence was illuminating: it seems to allege that the plaintiff and defendant in this case (the students and the KCMO school district) were colluding: an accident of venue was the only reason KCMO's school district was named defendant, and the actual, unnammed, shadow defendant was the state of Missouri, which was being coerced into funding an otherwise wildly unfundable mandate to create extravagant inner city schools by judicial fiat.

Thomas, Kennedy, and Rehnquist all put heavy attention on the circumstances of this case, that the federal judiciary (a) probably can't impose state taxes by fiat as a backdoor to legislation, and (b) clearly can't do so under the auspices that demographic "segregation" was equivalent to legal segregation. That all makes sense to me.

The FBI, air traffic control, copyright extensions: these are all well supported by legislation. They were not imposed as a backdoor by fiat by an activist court.

I'm not yummyfajitas nor am I speaking for him.

I believe he's looking for a principle somewhere that links people's moral outrage and the law. People either have their principles or they have the law. If people are having an argument about what is moral the law is irrelevant, if they're having an argument about what is moral the law is irrelevant.

A consistent argument would be either legal or moral. Any argument that treats the law as having moral weight is assigning some kind of quasi-sacred status to it.

Either the PATRIOT Act is legal therefore it is right is an argument that has some weight however tiny XOR it doesn't.

Why do you think

But it's not just "the Supreme Court decided it and thus it is so" (although when push comes to shove...). It's also that the SCOTUS decisions are a hint book to arguments like this.

They're just some political appointees who're mostly very, very smart. The important bit is the political appointees though. If you just assume Republican appointees vote Republican and Democrats Democrat on any given policy position you don't go far wrong. What moral weight can that have?

1. Is the federal government empowered to make any law not expressly forbidden by the Constitution?

2. Are there any laws that the states are allowed to make for their own people and territory without being overridden by the federal government?

The crux of your comments seems to lie in a practical argument — it's useful to have the government doing this stuff. nirvana's argument is strictly Constitutional, and is not interested in any conveniences that might be offered by bending the law.

(For the record, I'm not 100% in agreement with either side here. I'm just trying to synthesize what I see as the difference in where you two are coming from.)

As for (2), the Constitution settles this directly; laws enacted by the legislative branch of the federal government are the "supreme law of the land".