The random political thoughts thread (Part Deux)

[Alex]

He's not necessarily opposed to them being protected, he just doesn't feel that the protections necessarily originate in the constitution.

Which is true for many rights and protections we have. Many things are allowed by the constitution that aren't required by the constitution.

While I don't particularly agree with his brand of originalism, I don't find it all that controversial either. But he has a point that the things we now claim are explicitly protected by sections of the constitution were illegal before, at, and after those parts of the constitution were created. I really don't see it being at all remarkable to say that the 14th Amendment was not added to the constitution with the intent that it protect homosexual marriage.

If the writers had known it would one day come to be viewed that way, they doubtless would have explicitly excluded it and it is only because our interpretation today is so far outside the realm of what was considered reasonable at the time that it wasn't.

Scalia is an originalist. So him saying that the 14th amendment doesn't mandate gay marriage, for example, is no surprise. But I'm guessing he has no judicial problem with such allowances being created legislatively and his argument that if we want something to be required by the constitution that wasn't originally there the correct thing to do is change the constitution not how we read it is hardly original or that far outside the mainstream.

I support gay marriage. I do think it is an issue of civil liberties. And if we can get it allowed through the back door that is a living constitution I can live with it. But I also don't pretend that we aren't completely reinterpeting the intent of the people who wrote it when we do so.