The random political thoughts thread (Part Deux)

[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.