View of Constitution

[Attorney General & PPT Dwarven Dragon]

It evolves somewhat, in the sense that we should not look at the constitution through the same lens the founders would have in the 1780s. This was a society in which people kept slaves, engaged in mass discrimination based on race and gender, and enjoyed very few of the technological advances we have seen today. If we were to make rulings based on what the founders would have done in the 1780s (or even based on what the writers of many of the amendments would have done - since many of those amendments were written in the ages of slavery and segregation), we would reach some pretty absurd and deplorable rulings. What we should instead do is look at what was the core right the founders or the amendment writer was trying to establish - take out all the racism, sexism, lack of technology, etc. and figure out what was the overarching thing they were trying to enshrine.

For instance, consider the 4th amendment. At the time it was written, it primarily protected the house that you lived in - but what is clearly at its core is a desire to protect personal property from undue searches. The founders wanted to avoid the tactics of the British, who tore through property with reckless abandon, and instead give people respect for what they own. In today's society, such things as computers and phones and cars are clearly considered one's property, and therefore should be protected under the 4th amendment, regardless of the fact that they were not in the mind of the author of the 4th amendment.

For a more contentious example, consider the right to marriage. This is deemed to come from the 14th amendment, which promises equal protection of laws and rights to all. Marriage clearly existed in 1865 and is covered under this amendment. But to what degree should it be extended? For this, we should consider what would be considered to be the core of marriage at the time, regardless of the institutions of segregation, etc. - basically, in seeking to protect one's rights under the law, which includes marriage, what is the core thing that is trying to be protected? If one honestly considers the issue, I believe they will find that to be an opposite-sex relationship & expression of great love. Clearly, Loving v. Virginia falls under this standard and is a sound ruling - in a society that has moved beyond racism, there is no justification for restricting one's ability to partake in this opposite-sex relationship based on their race. However, Obergefell v. Hodges does not. No matter how many ancient institutions you take away from the view of the author of the 14th amendment, the opposite-sex core does not become an any-two-people core, for no matter how many principles of equality and modern knowledge you add in, the author of the 14th amendment would not have reached a place where he would feel compelled to include a same-sex right. You only reach that point when you add in the purely political opinion that the opposite-sex core should be melted away - which is something that is outside the scope of the proper role of a judge. Whether same-sex marriage is a good thing or whether society is ready to change the core of marriage does not matter. It is simply outside the core of the right that the amendment intended to create.