The random political thoughts thread (Part Deux)

[Ghoulish Delight]

Originally Posted by 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.

In that case, if people want to have the right to bear arms other than muskets, flintlock pistols, and other revolutionary-era firearms, they should either change the constitution or pass local legislation, right?

[CoasterMatt]

What does the Constitution have to say about wielding torches and wooden rakes?

[Alex]

Originally Posted by Ghoulish Delight

In that case, if people want to have the right to bear arms other than muskets, flintlock pistols, and other revolutionary-era firearms, they should either change the constitution or pass local legislation, right?

First the caveat: I do not subscribe to Scalia's brand of constitutional originalism so I am not necessarily a great defender of it. My point was mostly that his brand of originalism isn't particularly outside the mainstream and that just because he doesn't feel the Constitution mandates various protections of women and minorities does not mean he necessarily feels those protections therefore aren't allowed via other channels or that they would be a bad idea.

However, an attempt to respond.

In you're example, there is the question of how to apply a constitutional principle to something that did not exist when the principle was created, that is they didn't address is specifically because it was impossible to do so. You could demand that there be a constitutional amendment in the face of every new technological advancement but that is a nonsensical result (in my opinion). So that leaves simply attempting to apply the princples to the new things which will be easy to do sometimes (such as does free speech apply to words written electronically as opposed to by hand or printed on paper) and very difficult other times (how does the ability to thermally monitor private residences without ever actually leaving public spaces interact with principles on unreasonable searches)? Eventually the world changes so much that a constitutional amendment to address it would be ideal but generally it is by such dribs and drabs it can't happen.

On the other hand there are the cases where the constitutional principle doesn't address something not because the issue didn't exist (such as women being able to vote or gays being able to marry) but because at the time they were so far outside the realm of discussion that it was viewed as obviously they weren't relevant to the principle. This leaves it open for later generations of legal minds to "discover" that the old principles actually did apply to those once outside the realm of consideration areas all along.

Originalists, in my reading, generally don't have a problem with the first example while having a big problem with the latter. Though there is always the fudge factor of deciding when a specific case bleeds from one to the other.

But just as with strong states rights, most of us tend to be originalists when it gets us what we want and living constitutionalists when that is what gets us what we want (for example, many people flip sides on the question when discussing Lawrence v. Texas as opposed to Citizens United). While I disagree with him on many things, Scalia is much more consistent than most in living with the results of his originalist philosophy (with some glaring exceptions).

Again, I don't agree with where Scalia's philosophy would ultimately lead if rigorously implemented. But I also don't think his view is particularly indefensible, nor does saying that the constitution does not mandate gay marriage mean that one is saying that gay marriage can not be allowed.

[Ghoulish Delight]

Originally Posted by Alex

Originalists, in my reading, generally don't have a problem with the first example while having a big problem with the latter. Though there is always the fudge factor of deciding when a specific case bleeds from one to the other.

That fudge factor usually being conveniently the exact flavor of fudge that leads you to justify whatever position you happen to hold.

If for one see very little difference between the first and latter examples. The widespread availability of cheap, accurate, and extremely lethal firearms was as beyond comprehension when the 2nd amendment was written as the idea that women deserved equal treatment under the law was when the 14th was written. So to claim that we have to interpret the 14th entirely within the context in which it was written, but to ignore that context elsewhere is a pretty far stretch imo.

But just as with strong states rights, most of us tend to be originalists when it gets us what we want and living constitutionalists when that is what gets us what we want

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.

[Gn2Dlnd]

I'm not going to try to step up to the level of discourse here, so, let me just say that the use of the words "fudge" and "back door" have me giggling.

[Alex]

Originally Posted by Ghoulish Delight

I for one see very little difference between the first and latter examples.

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.

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.

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?

[JWBear]

Originally Posted by Alex

One question I would ask: Is the 19th Amendment superfluous? If it were removed would the Constitution still mandate allowing women to vote?

In my admittedly non-expert opinion, no. If I remember correctly, neither the original Constitution nor the Bill of Rights defines who can vote. The 15th Amendment forbade disenfranchisement on the basis of race, but not gender. Gender was specifically addressed in the 19th. Until then, nothing guaranteed universal suffrage.

The 14th Amendment, unlike the 15th and 19th, does not specify a particular group. It uses phrases such as “all persons”, “citizens, and “any person”. To deny that those phrases do not include gays and women is changing the definition of the words, not the meaning of the amendment.

[Ghoulish Delight]

Originally Posted by JWBear

In my admittedly non-expert opinion, no. If I remember correctly, neither the original Constitution nor the Bill of Rights defines who can vote. The 15th Amendment forbade disenfranchisement on the basis of race, but not gender. Gender was specifically addressed in the 19th. Until then, nothing guaranteed universal suffrage.

(following Alex's devil's advocate argument...) If nothing guaranteed universal suffrage until the 15th and 19th amendments, even in the presence of the 14th amendment, what gives the universal right to marriage?

[Alex]

Originally Posted by JWBear

To deny that those phrases do not include gays and women is changing the definition of the words, not the meaning of the amendment.

I agree. But I also doubt that Scalia (or any other serious person) would claim gays are not included in those terms. What he contests is whether the other parts of the 14th Amendment preclude laws that differentiate gays from other people (or women from men).

For if the argument is that the federal or state governments can not pass any law that treats one group of people (based on any criteria for categorizing at all) differently from any group of people then we've never even come close to applying the constitution correctly on this issue.

And again, part of my larger point. To argue that the constitution does not mandate gay marriage is not to say that there should be no gay marriage. As an upstanding conservative Catholic I'm sure that Scalia is opposed to gay marriage. And I also am pretty sure he'd uphold any laws that the states or federal government may pass that allows for it.

Similarly, while I'm sure that he doesn't feel there is a constitutional requirement for it and he probably would not and did not support passage of the law), he is ok with the federal government making Title 9 compliance a condition for universities receiving federal funds.

[Alex]

And following up on GDs devil's advocate follow up on me,

If not requiring the franchise for women was technically correct until the 19th Amendment (as well as not requiring the franchise for Chinese citizens until the 15th) does the absence of a specific amendment guaranteeing the right of gays to the franchise mean that it is technically acceptable for Utah to pass a law denying them that privilege?

There are only three parameters limiting how states can restrict the right to vote that are explicitly stated in the constitution:

1. Can't deny them the right just because they're a woman.
2. Can't deny them the right just because of their color or race.
3. Can't set an age limit older than 18.

So not allowing Methodists in Oregon to vote, or civil engineers in Minnesota, or gays in Alabama does not run afoul of those explicit restrictions.

Where does my right to vote come from? Do I have a "right" to vote, or merely a privilege that the state of California has not yet decided to take away?

This is a real world situation. Texas decided all on its lonesome that it could deprive certain classes of the mentally handicapped and former felons of the franchise. On what basis the is the "right" to vote less of a right than the "right" to marry?