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Originally Posted by Ghoulish Delight
I for one see very little difference between the first and latter examples.
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And I see them as very fundamentally and importantly different. Yes, whether modern firearms has strayed so far from the conception of guns that existed in 1789 that if they'd know what was to come the writer's would have written it differently can be debated.
Whether the 14th Amendment would have been written the way it was if they knew it would one day be used to mandate gay marriage can not.
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Hmm, Does believing in a "living constitution" mean that, to be consistent, one must ALWAYS come down on the side that would mean a change in interpretation? That seems an odd thing to require.
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No, of course it doesn't. But it would be good if there was a philosophy behind it more rigorous than simply using whichever approach gets the result you already want. And regardless of how much I disagree with him, Scalia's dedication to originalism as he views it has been much more consistent than most originalists (and more than most living constitutionalists commitment to the idea that modern societal norms provide great leeway in re-interpreting established constitutional canon).
One question I would ask: Is the 19th Amendment superfluous? If it were removed would the Constitution still mandate allowing women to vote?