Originalism

[MarkD]

I would hope that as you agree with me that textualism is neither liberal nor conservative, that you would also agree that textualism is not necessarily originalist.

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occassions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

Bye, Adam.

[politicallefty]

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occassions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

So, you disregard the text of the Constitution until it actually says what you want? I think we have to apply the Equal Protection Clause to the laws passed by Congress and the states. In the instance of marriage, Congress and many states specifically defined marriage as between a man and a woman. The Equal Protection Clause does not grant liberties, just as the Bill of Rights do not. It prevents the government from infringing upon them. I don't agree with your interpretation because I feel if it was limited to race that it would say so in the text. After all, the subsequent amendment sent to the states and ratified explicitly mentioned race.

If you'd like to see an orginalist argument in support gay marriage, read this.

To expand upon the gay rights issues here, how would you have ruled in Romer and Lawrence?

[True Federalist (진정한 연방 주의자)]

I would hope that as you agree with me that textualism is neither liberal nor conservative, that you would also agree that textualism is not necessarily originalist.

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occassions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

It seems odd to me to assume that the 9th Amendment does not apply when one interprets Section 1 of the 14th Amendment. The language there is not like that of the 2nd section which explicitly limits its application to males 21 years old or older.

(As an aside, if there were no 19th amendment, it would be interesting to see how section 2 of the 14th amendment would apply to the transgendered.)

[136or142]

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occassions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

So, you disregard the text of the Constitution until it actually says what you want? I think we have to apply the Equal Protection Clause to the laws passed by Congress and the states. In the instance of marriage, Congress and many states specifically defined marriage as between a man and a woman. The Equal Protection Clause does not grant liberties, just as the Bill of Rights do not. It prevents the government from infringing upon them. I don't agree with your interpretation because I feel if it was limited to race that it would say so in the text. After all, the subsequent amendment sent to the states and ratified explicitly mentioned race.

If you'd like to see an orginalist argument in support gay marriage, read this.

To expand upon the gay rights issues here, how would you have ruled in Romer and Lawrence?

Yes, that was one of the two reasons I was so angry with MarkD.

He is clearly intellectually dishonest as all 'originalists' are.  He claims to have some consistent philosophy for interpreting the Constitution, but, when pressed, he and they all end up in the same place: "interpret the Constitution so as to get the Judgement that I want."

'Originalists' accuse liberals of that, but they are just as guilty of it, themselves.  However, the 'originalists' also claim to have some philosophy that

1.Supposedly makes them essentially morally superior
2.That they beat the heads of liberals over with the nonsense "You legislate from the bench while I just apply the statutes as written."

Except, as we see here, not only are they not morally superior, they're intellectually dishonest.

They 'legislate from the bench' no more and no less than nearly any other Judge.

As The Bard wrote: "You see, you're just like me.  I hope you're satisfied."

The other reason was his use of legal jargon that I think he clearly doesn't really understand and his reliance on a few authors as if they somehow have the Gospel truth on how to interpret the Constitution (even if and when they also contradict themselves.)

As I told him: Rather than take what these authors say as Gospel, why don't you go and read the source documents for yourself?

[MarkD]

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occasions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

So, you disregard the text of the Constitution until it actually says what you want? I think we have to apply the Equal Protection Clause to the laws passed by Congress and the states. In the instance of marriage, Congress and many states specifically defined marriage as between a man and a woman. The Equal Protection Clause does not grant liberties, just as the Bill of Rights do not. It prevents the government from infringing upon them. I don't agree with your interpretation because I feel if it was limited to race that it would say so in the text. After all, the subsequent amendment sent to the states and ratified explicitly mentioned race.

If you'd like to see an orginalist argument in support gay marriage, read this.

To expand upon the gay rights issues here, how would you have ruled in Romer and Lawrence?

No, I regard what the provisions of the Constitution were originally understood to mean. The text of the Ex Post Facto Clause does not say whether the principle was going to apply to only criminal law or to both criminal and civil law, but the Supreme Court decided it means the former, because of historical usage before the Constitution was adopted. The text of all of the first ten amendments does not say that only the federal government has to obey those rights, only the First and Tenth SEEM to say so, but the Supreme Court, unanimously, said that the states do not have to obey any of the rights protected by the Bill of Rights -- Barron v. Baltimore. That point is extremely important when regarding what True Federalist said about the Ninth Amendment. The text of the Equal Protection Clause does not mention race, but the majority of the Court, in The Slaughter-House Cases interpreted that clause as if it does apply only to the black race.

We cannot apply The Equal Protection Clause to every type of human characteristic there is -- sex, sexual orientation, disability status, economic status, born in or out of wedlock, marital status, citizenship status, ad infinitum . We cannot function that way. The congressional committee that drafted the 14th Amendment was going to propose Section 1 with a mention of "race" in the EP Clause and then decided, at the last moment, to drop the weird "race." Doing so left a hole. But the rest of Congress voted on proposing the entire amendment -- five sections -- and the states had to vote on ratify the entire amendment. Vote to accept the entire amendment or to reject it because of the hole left in the last clause of the first section. We know how they voted on the entire amendment, but we don't know about that hole in the EP Clause. We DO know that the Supreme Court has always understood the racial purpose of that clause. Regarding the rest of the realm of discrimination -- sex, sexual orientation, economic classifications, illegitimate children, etc, the Supreme Court has frequently been badly divided, and made itself look incompetent!

Salon.com? I read the article and I am not impressed.

Romer and Lawrence both made me very angry. I would like to listen to an argument that Colorado Amendment 2 violated the principle of the First Amendment right to petition the government for a redress of grievances, if the attorney had thought to argue that way. But I would adamantly reject an Equal Protection argument. The Texas sodomy law I would uphold with no hesitation.

[True Federalist (진정한 연방 주의자)]

The text of the Equal Protection Clause does not mention race, but the majority of the Court, in The Slaughter-House Cases interpreted that clause as if it does apply only to the black race.

Clearly you've not read the decision.  It explicitly states in it that "We do not say that no one else but the engro [sic] can share in this protection." (83 U.S. 72)  I'll grant that later on in his decision, Justice Miller did provide as an obiter dictum that he doubted that the 14th Amendment would ever be used for any class of discrimination other than racial discrimination, but that was because he doubted Congress would ever attempt to use the 14th Amendment for other classes of discrimination or that States would ever attempt to discriminate on a basis other than race.  He also made it clear that his decision was not dependent upon those assumptions and that it would be left to a future case to decide if the 14th Amendment applied to discrimination based on factors other than race if such a case ever came before the court.

The plaintiffs were not denied relief in the Slaughter-House Cases because the Louisiana statute in question was racially neutral. They were denied relief because the court held that the monopoly granted the Slaughter-House Corporation by the State of Louisiana did not abridge the privileges or immunities of citizens of the United States, did not deprive any person of life, liberty, or property, without due process of law, and did not deny to any person within its jurisdiction the equal protection of the laws.  In short, the Slaughter-House Cases held that the 14th Amendment was not passed to enshrine rabid laissez-faire policies that prevented government regulation of business.

[136or142]

What I always find odd is that I would tend to think that genuine 'small government' conservatives would support the 'liberal' interpretation of the due process and equal protection clauses as they require politicians to show they have valid reasons to justify the laws they pass.

I realize the Magna Carta and the U.S Constitution are separate documents, but given the importance of the Magna Carta, I can understand why many jurists would interpret all clauses in the U.S Constitution as limiting the ability of the Sovereign (in this case the legislature and the governor/President) to pass arbitrary laws, unless expressively restricted in doing so by either the Constitution itself, the Federalist Papers or the Congressional debates on the Amendments passed and ratified after the passing of the  Constitution as originally written.

"Both the state declarations of rights and the United States Bill of Rights incorporated several guarantees that were understood at the time of their ratification to descend from rights protected by Magna Carta. Among these are freedom from unlawful searches and seizures, a right to a speedy trial, a right to a jury trial in both a criminal and a civil case, and protection from loss of life, liberty, or property without due process of law.

Many broader American constitutional principles have their roots in an eighteenth-century understanding of Magna Carta, such as the theory of representative government, the idea of a supreme law, and judicial review."

https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/magna-carta-and-the-us-constitution.html

[MarkD]

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To me, it seems even odder to treat the 9th as if it does have something to do with any interpretation of Section 1 of the 14th. I have compared the concurring opinion written by Justice Goldburg in Griswold v. Conn. to the dissenting opinions by Justices Black and Stewart and I think the latter are much, much more persuasive.

The text of the Equal Protection Clause does not mention race, but the majority of the Court, in The Slaughter-House Cases interpreted that clause as if it does apply only to the black race.

Clearly you've not read the decision.  It explicitly states in it that "We do not say that no one else but the engro [sic] can share in this protection." (83 U.S. 72)  I'll grant that later on in his decision, Justice Miller did provide as an obiter dictum that he doubted that the 14th Amendment would ever be used for any class of discrimination other than racial discrimination, but that was because he doubted Congress would ever attempt to use the 14th Amendment for other classes of discrimination or that States would ever attempt to discriminate on a basis other than race.  He also made it clear that his decision was not dependent upon those assumptions and that it would be left to a future case to decide if the 14th Amendment applied to discrimination based on factors other than race if such a case ever came before the court.

The plaintiffs were not denied relief in the Slaughter-House Cases because the Louisiana statute in question was racially neutral. They were denied relief because the court held that the monopoly granted the Slaughter-House Corporation by the State of Louisiana did not abridge the privileges or immunities of citizens of the United States, did not deprive any person of life, liberty, or property, without due process of law, and did not deny to any person within its jurisdiction the equal protection of the laws.  In short, the Slaughter-House Cases held that the 14th Amendment was not passed to enshrine rabid laissez-faire policies that prevented government regulation of business.

But look at the context in which Miller used the phrase, "We do not say that no one else but the negro can share in this protection. Miller was not referring to the EP Clause alone; in the sentences which proceeded that and which followed it, Miller was referring to all three of the Civil War Amendments -- the 13th, 14th, and 15th. Miller did not get down to discussing the EP Clause specifically until several paragraphs later.
Once he quoted the precise language of the Equal Protection Clause, he immediately said,
"In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.
"If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment."

And Miller never said anything at all, not explicitly or implicitly, about whether states might engage in other kinds of discrimination than racial discrimination, much less that states probably would not do so. He never discussed any kind of discrimination except racial discrimination.

It is very much true that all of the discussion about the Equal Protection Clause and the Due Process Clause was just obiter dictum, because Miller explicitly said: "The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law." Once he said that, then continuing to explain whether or not there was a violation of either clause was utterly irrelevant to the central holding of the case. But your point, TF, that Miller seemed to be referring to the prospect that the EP Clause does not only protect blacks from discrimination because Miller said "We do not say that no one else but the negro can share in this protection," is ignoring the context in which that statement was made -- not just the EP Clause but all of the Civil War Amendments.

Everyone has a race (at least one; the number of multi-racial people, like Barack Obama, is growing). Everyone is protected by the Equal Protection Clause when we say that it prohibits racial discrimination. But everyone is not protected from all kinds of discrimination, even though the Clause is worded that way. We can't take the EP Clause literally. It has to mean something narrower than what it says, and Justice Miller was exercising a sound judicial instinct.

[True Federalist (진정한 연방 주의자)]

You're extremely good at ignoring context, Mark, even when you yourself quote it:

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How can one from that infer that his interpretation of the EPC can be thought to be independent of his general conclusions concerning the Reconstruction amendments?

As for the dissents of Black and Stewart in Griswold, I certainly agree that one should not use the application of the various protections in the Constitution of personal liberty as an excuse for having the Court rule whenever it wants on any topic. However, to go from that to holding that they are to be applied so narrowly as to make the Ninth a nullity is an absurdity in the other direction.

I will say this, you do serve as an excellent example of why Hamilton was opposed to the inclusion of a Bill of Rights in the Constitution. Namely that some people would think that only those rights enumerated in such a Bill would be protected by the Constitution.

[MarkD]

Hamilton was opposed to including a Bill of Rights in the Constitution because he thought it was unnecessary, and that doing so might be construed as an invitation to expand federal power.

[True Federalist (진정한 연방 주의자)]

Hamilton was opposed to including a Bill of Rights in the Constitution because he thought it was unnecessary, and that doing so might be construed as an invitation to expand federal power.

Agreed, but the 14th was that invitation. The only question is how broad an invite it was.

[MarkD]

Hamilton was opposed to including a Bill of Rights in the Constitution because he thought it was unnecessary, and that doing so might be construed as an invitation to expand federal power.

Agreed, but the 14th was that invitation. The only question is how broad an invite it was.

Yes, that IS the question!
The Supreme Court has said, twice in the last 25 years, that in terms of passing judgment on whether the Due Process Clause of the 14th has been violated, "Our obligation is to define the liberty of all, not to mandate our own moral code." That statement of their obligation is absolutely incorrect. Because it is incorrect, the remainder of that sentence is infuriatingly hypocritical. The Due Process Clause does not protect any substantive liberties, but when the Court chooses to give that clause an interpretation that it does protect substantive liberties/rights, the Court IS choosing to decide how much freedom people ought to have, and that is when the Court IS mandating its own moral code.

The P & I Clause protects most of the rights enumerated in the first eight amendments, and it protects the right to travel within the United States. The DP Clause protects against unfair trial procedures, and the EP Clause protects, ... what I have been saying several times already. Using the clauses in Section 1 of the 14th is "legislating from the bench." Conservative Justices did it several times in the early 20th Century, liberal and moderate Justices have been doing since Skinner v. Oklahoma (an occassion in which the Court could have invoked enumerated rights, rather than un-enumerated rights, but only one Justice explicitly did so).

[True Federalist (진정한 연방 주의자)]

Due process that is solely procedural due process is sterile and unprotective. Without substantive due process then rights can be legislated away by clever people.

[MarkD]

And interpreters of the Due Process Clause who give it substantive meaning are cleverly performing a slight-of-hand trick

[True Federalist (진정한 연방 주의자)]

And interpreters of the Due Process Clause who give it substantive meaning are cleverly performing a slight-of-hand trick

Mainly when arguing for a strict scrutiny basis. When applying a rational basis review as Miller did in the Slaughter-House Cases, albeit without that anachronistic terminology, it's a quite essential bit of the law.

[MarkD]

It is not essential, it is legerdemain -a trick.
I drafted a proposal for a constitutional amendment that does these things:
1) Eliminates the "substantive" meaning of the Due Process Clause of the 5th Amendment
2) Explicitly requires the federal government to treat everyone equally (the equal protection interpretation of the Due Process Clause that the Supreme Court created in the mid-20th Century)
3) Limits the meaning of the 9th Amendment to being a rule applicable to the federal government only
4) Repeals the second sentence in Section 1 of the 14th Amendment and replaces it with much more detailed and specific rules that states have to follow. Tell the states precisely which rights they cannot violate, and precisely which kinds of discrimination they (and the federal government) cannot engage in. Forbid the federal courts from defining un-enumerated rights and defining un-enumerated versions of equality.
I hope this gets proposed and ratified. This is what is essential, not a judiciary that legislates from the bench.

[True Federalist (진정한 연방 주의자)]

I agree that the judiciary should not be legislating, but what you propose essentially guts the ability of Congress to ensure that what it determines to be fundamental rights are protected.

Incidentally, since you are so against judicial legislation, I presume you think the Court was mistaken when it tossed out Section 5 of the Voting Rights Act.

[MarkD]

Shelby County v. Holder is not one of the decisions I am particularly familiar with, but skimming through a summary of how the Court ruled, yes, I am skeptical of it and am I open to possibility that the Court was inventing a new version of constitutional law. The Tenth Amendment grants states "equal sovereignty"? Section 2 of the Fifteenth Amendment requires Congress to use up-to-date info about which states or local gov'ts need to have Section 1 of the Fifteenth enforced against them?

Bush v. Gore was when the conservative wing of the Supreme Court was at its worse. Well, for that matter, it IS just plain the worst decision ever. I've also long been skeptical about the Shaw v. Reno line of decisions, and I keep hoping for a reversal of Arizona v. Fulminante, which the ROSKT Court also got wrong (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas).

BTW, I do not have any objection whatsoever to King v. Burwell. That was an example of when Scalia, Thomas, and Alito were wrong to dissent, because the rest of the Court got that one right. Lots of conservatives complain about the Supreme Court rewriting the ACA, but I'm not one of them who thinks that the ACA had to be taken literally.