Originalism

[politicallefty]

So, tell me then  why shouldn't the right to bare arms only apply to muskets that were used in or before 1787?

That is what was meant by 'arms' in 1787 as they were the only arms that were available to the average person then.  There are some half truths that the 2nd Amendment 'advocates' (liars) tell about air rifles.

Thank you, and I agree with your premise, but I don't think we have to go that far to find a regulatory clause in the Second Amendment. I read the prefatory clause of the Second Amendment to be far more limiting than most. I don't know how an orginalist can somehow dismiss the text itself which begins with "A well regulated Militia, being necessary to the security of a free State...". Somehow, those on the right seem to ignore that part and only focus on the words after.

I don't consider myself to be an originalist, but I am quite fond of textualism. I think the text of the Constitution must be understood and interpreted in the time that it is being evaluated. And I think those interpreting the Constitution must err on the side of liberty unless it's an otherwise expressed power. For example, I think the Fourteenth Amendment easily grants same-sex couples the right to marry.

The problem is that liberals have allowed the right to usurp the label of textualism. Textualism is neither liberal nor conservative. To a certain extent, the closest I can think of that sort of jurisprudence is Hugo Black, except that I think he saw the Equal Protection Clause in too limiting terms. It is my belief that if the Fourteenth Amendment's protections were to be limited to race, it would say so.

[politicallefty]

Thank you. Black believed that the Equal Protection Clause had four major premises: 1) racial equality, 2) equality between citizens and aliens (see Graham v. Richardson, 1971 -- opinion written by Justice Blackmun and agreed upon unanimously by the Court, including Black), 3) every voter's equal right to elect state legislators (see Reynold v. Sims, 1964), 4) the "rational basis test" to all of the rest of the kinds of discrimination that occur (knowing that the RB test is a very deferential standard).

I'm sorry, but are you agreeing or disagreeing with me? Is your point that textualism should be read as Justice Black read it or read in contemporary terms? While I highly respect Justice Black, I think he read the Constitution in contemporary times. He was part of the unanimous Loving decision at a time when the American people were staunchly opposed to such an idea. The notion that the Framers of the Fourteenth Amendment ever conceived of such a ruling nearly a century later is absurd.

Let me put it this way: how would you have ruled in Obergefell? It's difficult (though perhaps not impossible) to find an orginalist argument in support of that decision. I think it's very easy to find textualist support.

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It's my understanding that most constitutional scholars and those that apply the law today that the Slaughter-House Cases were not correctly decided.


How would you describe your own judicial philosophy?

[politicallefty]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?

I mistyped my response to the second quote.

I wasn't asking you if you agreed with the majority in Obergefell. I was asking if you agreed with the outcome. Personally, I agreed with the result, but I would have arrived there through different means. Looking at the text of the Fourteenth Amendment and considering marriage law throughout the country, I would have ruled that bans on same-sex marriage were unconstitutional as a violation of the Equal Protection Clause. Any other interpretation has no relevance, including whether or not marriage itself is a fundamental right.

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.

[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?