Originalism

[MarkD]

Here is Sen Chris Murphy explaining why he thinks of Neil Gorsuch as an extremist.
https://m.facebook.com/story.php?story_fbid=1514088615289290&id=908009612563863

Does it make any sense whatsoever to claim that originalism, as a philosophy of interpreting the Constitution, means that judges should ignore amendments to the Constitution that guaranteed women the equal right to vote and that banned slavery?

[MarkD]

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Precedents -- even those decisions that happened to have been wrong, which did not fulfill the intended meaning of the provisions of the Constitution that the Court purported to be interpreting. Don't forget that law school students get it drilled into them that they should follow the precedents in order to predict how the courts will rule next. (For the record, I'm an originalist/intepretevist, not a textualist.)

I've never been to law school, but I started intensely studying constitutional law about 26 years ago by reading Robert Bork's The Tempting of America. Bork taught me that there are three clauses in the Constitution that the Supreme Court has most frequently invoked as reasons for striking down laws that the Justices do not like, rather than because they were actually unconstitutional. Those three clauses are: 1) the Due Process Clause of the Fifth Amendment (applicable to the federal government), 2) the Due Process Clause of the Fourteenth Amendment, and 3) the Equal Protection Clause of the Fourteenth Amendment (the latter two being applicable to the state governments). There are other provisions of the Constitution which the Court has misinterpreted too, but those three clauses are the most frequently abused. In reading so many Supreme Court opinions about those three clauses, I have seen that the Court is far more interested in following its own precedents than in paying respect to what those clauses were originally intended to mean. Those clauses are the primary source of so much "fiat" comes from, but fiat has been done so often by the Court before, that it seems to them to be their responsibility to continue doing it.

It ought to be agreeable that giving the Constitution its correct meaning, every clauses' originally understood meaning, should be even more important than just following precedent. As Justice Felix Frankfurter said: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." As Justice Lewis Powell has said: "It is ... not only [the Court's] prerogative but also [its] duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question." However, as Bork also said, there are sometimes that a precedent should not be overturned even if it was not the correct interpretation of the Constitution, if there are extremely strong practical reasons to not overturn. "But if a judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless has become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. ... There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, 'Go and sin no more.' " (From Tempting, pages 156, 158, and 159.)

[MarkD]

Given that the Constitution was written at a convention attended by more than 30 men, the idea that  any clause has one correct interpretation that all those people, or even a majority of those people agreed upon, is absurd.  It's so absurd I can't understand how any person with even a modest amount of intelligence could actually believe it.

For instance, why do you believe Justice Bork when he says his understanding of the Founder's 'originally understood meaning' of the clauses is the correct one?  The Justices who have ruled differently, rather than ruling on precedent, may simply have a different opinion of what the Framers of the Constitution were thinking (or a majority of the framers on any single statute or clause.)

This doesn't even take into account the idea that applying the general clauses in the Constitution to a specific legal case is a great deal more complicated than the simplistic nonsense of 'reading what the Constitution says and applying it.'

Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

[MarkD]

Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

I never wrote that it's entirely impossible to know what original intent is (or are), I wrote that the idea that there was ONE original intent is absurd.  I agree there are opinions that some judges have written where legal scholars say "how did they arrive at that judgement based on the statute?"

In regards to the other things you wrote:
1.How do you know that the Justices who Judge Bork claimed were not interpreting the statute correctly also don't have legal and historical scholars who back up their interpretations?  

2.That's fine that Judge Bork disagrees with me, that doesn't make me wrong.  It seems the only person you've read on this is Judge Bork.

1. Let's stick to judicial review, rather than interpretation of statutes, please. Of course there are lots of scholars who agree with the interpretations rendered by Justices who, in Bork's opinion, and mine, were not being guided by the original understanding of the provision in the Constitution that they were interpreting. As Bork revealed, there are many law scholars who are non-originalists. Some are non-originalists in the sense that they consciously reject the philosophy of originalism, while others claim to support the philosophy, but nonetheless end up distorting the original meaning via their own interpretations. Prof. John Hart Ely -- who passed away in 2003 and who wrote one of the most fascinating, entertaining books ever written on the topic of judicial review Democracy and Distrust (1980) -- is one of the latter. Ely backed up the Warren Court and argued that it very rarely misinterpreted the Constitution.

2. Wrong. I never said that I only have read Bork, and I would know better than to come to my conclusions -- that I choose to be an originalist, and that there are certain clauses of the Constitution in which truly objective interpreters of law can see that there is only one correct interpretation of what those clauses were intended to mean -- without reading the works of other notable scholars/judges. One of my favorite essays on the topic of interpretation of law is the essay "How Far Is a Judge Free in Rendering a Decision?" by Judge Learned Hand. Justices Oliver Wendell Holmes and Hugo Black are my favorites Justices. Prof. Ely's Democracy and Distrust had some excellent arguments and some very flawed arguments too (which is to say that I completely agree with Bork's assessment of that book). Prof. David P. Currie's two-volume The Constitution in the Supreme Court was also excellent and very informative. Two major differences between Currie and Bork: 1) both were originalists, but Bork was very sanctimonious about whether originalism is the only valid philosophy, and Currie never talked that way  (sanctimoniously), 2) Currie praised the Warren Court very strongly, in a way that Bork would not dream of praising it, and came to some very different conclusions about whether  the Warren Court was wrong as often as Bork said it was wrong.

[MarkD]

Even Justice Joseph Story adhered to the philosophy of originalism -- the original intent.
From Story's Commentaries on the Constitution of the United States: "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the terms, and the intention of the parties."
Bork said that "interpretivism," in the way that Prof. Ely described it, means the same thing as originalism. Ely's famous book, that I referred to before, Democracy and Distrust , defined interpretivism this way: "[Interpretivism holds] that judges deciding constitutional cases should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution." "[T]he work of the political branches is to be invalidated only in accord with an inference whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there -- because the situation is not likely to have been foreseen -- is generally common ground." "Interpretivism does seem to retain the substantial virtue of fitting our ordinary notion of how law works: if your job is to enforce the Constitution then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time. Thus stated, the conclusion possesses the unassailability of a truism, and if acceptance of that were all it took to make someone an interpretivist, no sane person could be anything else." "The suggestion," made by interpretivists, "is usually that the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision." Yes, the intentions of those who made the clause that judges are interpreting matter. "It would be a mistake -- albeit an understandable one in light of the excesses one witnesses at the other extreme -- to dismiss 'the intent of the framers' as beside any relevant point. Something that wasn't ratified can't be part of our Constitution, and sometimes in order to know what was ratified we need to know what was intended. ... Neither am I endorsing for an instant the nihilist view that it is impossible ever responsibly to infer from a past act and its surrounding circumstances the intentions of those who performed it."

[MarkD]

Ely's book is one of the best -- most entertaining and thought-provoking -- that has ever been published on the topic of judicial review. Bork said Democracy and Distrust contains "many enlightening arguments and observations." Bork especially liked Chapter 3: that chapter "is devastating and, for many of us, highly entertaining. I recommend it highly."
But Ely said that the "standard form of interpretivism runs into trouble -- trouble precisely on its own terms, and so serious as to be dispositive. For the consotutional document itself, the interpretivist's Bible, contains several provisions whose invitation to look beyond their four corners -- whose invitation, if you will, to become a noninterpretivist -- cannot be construed away.
"Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured. ... The Fourteenth Amendment -- and ... the Ninth Amendment is similar -- contains provisions that are difficult to read responsibly as anything other than quite broad invitatiins to import into the constitutional decision process considerations that will not be found in the language of the or the debayes that led up to it."
Once again, Ely says that the intentions of those who adopted an amendment do matter . But, "the most important datum bearing on what was intended is the constitutional language itself." [Emphasis in the original.] "This is especially true where the legislative history is in unusual disarray -- as is certainly the case with the Fourteenth Amendment. ... [M]any of the records of the Fourteenth Amendment's ratification debates have not survived. Thus the only reliable evidence of what 'the ratifiers' thought they were ratifying is the language of the provision they approved."

Are there any other provisions in the Constitution than the Ninth and the Fourteenth Amendments that are vague?

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

"No State shall make or enforce any law which shall abridge the Privileges or Immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law."

Ely says, correctly, that the Due Process Clause should be taken at face value, which means that the Clause ensures fair procedures, but does not protect  substantive rights.  But Ely, in my carefully considered opinion, is incorrect about interpretting the other two clauses in the Fourteenth broadly, and I reject Ely's interpretation of the Ninth as well. Bork was wrong about the intended meaning of the Ninth as well. Justices Story, Stewart, and Black had the correct interpretation of the Ninth.

[MarkD]

Continuing a quote from Ely that I had above:
"Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured. At one extreme -- for example the requirement that the President "have attained to the Age of thirty five years" -- the language is so clear that a conscious reference to purpose seems unnecessary. Other provisions, such as the requirement that the President be a 'natural born Citizen may need a reference to historical usage so as to exclude alternative constructions. ... Others, such as the First Amendment's prohibition of congressional laws 'abridging the freedom of speech' seem to need more. For one thing, a phrase as terse as the others I have mentioned is here expected to govern a broader and more important range of problems. For another, and this may have something to do with the first, we somehow sense that a line of growth was intended, that the language was not intended to be restricted to its 1791 meaning. [Emphasis added.] This realization would not phase Justice Black or most other interpretivists: the job of the person interpreting the provision, they would respond, is to identify the  sorts of evils [emphasis in original] against which the provision was directed and to move against their contemporary counterparts. Obviously this will be difficult, but it will remain interpretivism."
As Prof. Ronald Dworkin said, "Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind examples of the kind of conduct I mean to discourage, but I would not accept that my 'meaning' was limited to those examples, for two reasons. First, I expect my children to apply my instructions to situations I had not and could not have thought about. Second, I stand ready to admit that some particular act that I thought was fair when I first spoke was in fact unfair, and vice versa, if one of my children is able to convince me of that later; in that case I should want to say that my instructions covered the case he cited, not that I changed my instruction. I might say that I meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind." (From "Taking Rights Seriously.")
Dworkin's first point is completely agreeable to those of us who are originalists/interpretivists. Interpret what the principle was intended to be and apply that principle to circumstances that those who adopted the provision of the Constitution you are interpreting did not and could not have thought about. Dworkin's second point is more problematic, not as easy to agree with. But the first point, and what Ely said above, is enough to rebut your silly musket example.

[MarkD]

The problem is that liberals have allowed the right to usurp the label of textualism. Textualism is neither liberal nor conservative. To a certain extent, the closest I can think of that sort of jurisprudence is Hugo Black, except that I think he saw the Equal Protection Clause in too limiting terms. It is my belief that if the Fourteenth Amendment's protections were to be limited to race, it would say so.

Thank you. Black believed that the Equal Protection Clause had four major premises: 1) racial equality, 2) equality between citizens and aliens (see Graham v. Richardson, 1971 -- opinion written by Justice Blackmun and agreed upon unanimously by the Court, including Black), 3) every voter's equal right to elect state legislators (see Reynold v. Sims, 1964), 4) the "rational basis test" to all of the rest of the kinds of discrimination that occur (knowing that the RB test is a very deferential standard).

But take a look at the majority opinion in The Slaughter-House Caeses in the early 1870s.
"We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."
And look at Strauder v. West Virginia, 1880, regarding the Equal Protection Clause: "What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?"

[MarkD]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay -- see Boutilier v. INS, 387 U.S. 118 (1967)
https://supreme.justia.com/cases/federal/us/387/118/case.html

Oh, ... and I was thanking you for saying that textualism is neither liberal nor conservative, and for demonstrating that you understand and largely respect Justice Black.

[MarkD]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay.

1.Where does the Constitution provide a breakdown of what are and are not 'fundamental rights?'

I don't believe it does, so your view on that is your personal opinion and no more or less valid than anybody else's.

That aside:
1.Marriage itself may or may not be a right, but there are about 30 rights and responsibilities that are attached to marriage.

And
2.Marriage is a government institution.  My interpretation of the equal protection and due process clauses are that governments need valid reasons to discriminate in favor of one group or against another group.  The view at the time of the writing of the Constitution was that homosexuality was a mental disorder that through gay sex led to all sorts of additional mental or physical disorders.   This was still widely believed up till around 1980.

It's now pretty much agreed that that is all nonsense.  As Keynes said "When the facts change, I change my mind.  What do you do, sir?"

So, back then there were considered valid reasons for wanting to prevent homosexual relations.  Now, society knows there aren't.  To say that the Supreme Court should have to read into the Constitution only with the knowledge that existed in 1787 is a rather bizarre philosophy.  Where does the Constitution itself say that's how it should be interpreted?

And, if that's the case, we get back to what I wrote earlier (which you ignored, no surprise.)  Then the Second Amendment definition of 'arms' is a musket that was in use on or before 1787 and any gun used now can be Constitutionally outlawed.

You're right that the Constitution does not say that. The phrase "fundamental rights" was invented by the Court when Justices made up their minds that they want to strike down laws that do not violate any rights that are enumerated in the Constitution. I did not say -- I did not mean to say -- that there are "fundamental rights" protected by the Constitution even though those rights were not enumerated in the Constitution. The context in which I was saying what you put in bold has to do with what I want to PUT in the Constitution now by adopting an amendment that rewrites Section 1 of the 14th Amendment. I want to put in the Constitution what rights the states may not violate, and tell the federal courts that THEY may not declare any substantive, un-enumerated rights are protected from being violated by the states. The 14th Amendment was not intended to have that meaning, and it was mistake for the Supreme Court to ever start interpreting the 14th that way. I want to tell the Supreme Court (and the rest of the federal judiciary), via a constitutional amendment, to stop it at once. The states should have never been forced to give federal courts "valid reasons" for adopting the laws they want to adopt. Would the states have ratified the 14th in the 1860s if they knew most or all of their laws were going to be scrutinized that way by federal courts?

I agree society has changed its mind about its diagnosis of homosexuality. That fact means that we can now adopt a constitutional amendment that will address equality between LGBT on the one hand and the heterosexual, cisgender majority. The change in public attitudes does not change the original meaning of the Equal Protection Clause of the 14th Amendment.

I did not at all ignore your comment about interpreting the 2nd Amendment. I responded to it. You can't look past the end of your nose. No surprise.

[MarkD]

I would hope that as you agree with me that textualism is neither liberal nor conservative, that you would also agree that textualism is not necessarily originalist.

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occassions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

Bye, Adam.

[MarkD]

Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occasions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

So, you disregard the text of the Constitution until it actually says what you want? I think we have to apply the Equal Protection Clause to the laws passed by Congress and the states. In the instance of marriage, Congress and many states specifically defined marriage as between a man and a woman. The Equal Protection Clause does not grant liberties, just as the Bill of Rights do not. It prevents the government from infringing upon them. I don't agree with your interpretation because I feel if it was limited to race that it would say so in the text. After all, the subsequent amendment sent to the states and ratified explicitly mentioned race.

If you'd like to see an orginalist argument in support gay marriage, read this.

To expand upon the gay rights issues here, how would you have ruled in Romer and Lawrence?

No, I regard what the provisions of the Constitution were originally understood to mean. The text of the Ex Post Facto Clause does not say whether the principle was going to apply to only criminal law or to both criminal and civil law, but the Supreme Court decided it means the former, because of historical usage before the Constitution was adopted. The text of all of the first ten amendments does not say that only the federal government has to obey those rights, only the First and Tenth SEEM to say so, but the Supreme Court, unanimously, said that the states do not have to obey any of the rights protected by the Bill of Rights -- Barron v. Baltimore. That point is extremely important when regarding what True Federalist said about the Ninth Amendment. The text of the Equal Protection Clause does not mention race, but the majority of the Court, in The Slaughter-House Cases interpreted that clause as if it does apply only to the black race.

We cannot apply The Equal Protection Clause to every type of human characteristic there is -- sex, sexual orientation, disability status, economic status, born in or out of wedlock, marital status, citizenship status, ad infinitum . We cannot function that way. The congressional committee that drafted the 14th Amendment was going to propose Section 1 with a mention of "race" in the EP Clause and then decided, at the last moment, to drop the weird "race." Doing so left a hole. But the rest of Congress voted on proposing the entire amendment -- five sections -- and the states had to vote on ratify the entire amendment. Vote to accept the entire amendment or to reject it because of the hole left in the last clause of the first section. We know how they voted on the entire amendment, but we don't know about that hole in the EP Clause. We DO know that the Supreme Court has always understood the racial purpose of that clause. Regarding the rest of the realm of discrimination -- sex, sexual orientation, economic classifications, illegitimate children, etc, the Supreme Court has frequently been badly divided, and made itself look incompetent!

Salon.com? I read the article and I am not impressed.

Romer and Lawrence both made me very angry. I would like to listen to an argument that Colorado Amendment 2 violated the principle of the First Amendment right to petition the government for a redress of grievances, if the attorney had thought to argue that way. But I would adamantly reject an Equal Protection argument. The Texas sodomy law I would uphold with no hesitation.

[MarkD]

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To me, it seems even odder to treat the 9th as if it does have something to do with any interpretation of Section 1 of the 14th. I have compared the concurring opinion written by Justice Goldburg in Griswold v. Conn. to the dissenting opinions by Justices Black and Stewart and I think the latter are much, much more persuasive.

The text of the Equal Protection Clause does not mention race, but the majority of the Court, in The Slaughter-House Cases interpreted that clause as if it does apply only to the black race.

Clearly you've not read the decision.  It explicitly states in it that "We do not say that no one else but the engro [sic] can share in this protection." (83 U.S. 72)  I'll grant that later on in his decision, Justice Miller did provide as an obiter dictum that he doubted that the 14th Amendment would ever be used for any class of discrimination other than racial discrimination, but that was because he doubted Congress would ever attempt to use the 14th Amendment for other classes of discrimination or that States would ever attempt to discriminate on a basis other than race.  He also made it clear that his decision was not dependent upon those assumptions and that it would be left to a future case to decide if the 14th Amendment applied to discrimination based on factors other than race if such a case ever came before the court.

The plaintiffs were not denied relief in the Slaughter-House Cases because the Louisiana statute in question was racially neutral. They were denied relief because the court held that the monopoly granted the Slaughter-House Corporation by the State of Louisiana did not abridge the privileges or immunities of citizens of the United States, did not deprive any person of life, liberty, or property, without due process of law, and did not deny to any person within its jurisdiction the equal protection of the laws.  In short, the Slaughter-House Cases held that the 14th Amendment was not passed to enshrine rabid laissez-faire policies that prevented government regulation of business.

But look at the context in which Miller used the phrase, "We do not say that no one else but the negro can share in this protection. Miller was not referring to the EP Clause alone; in the sentences which proceeded that and which followed it, Miller was referring to all three of the Civil War Amendments -- the 13th, 14th, and 15th. Miller did not get down to discussing the EP Clause specifically until several paragraphs later.
Once he quoted the precise language of the Equal Protection Clause, he immediately said,
"In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.
"If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment."

And Miller never said anything at all, not explicitly or implicitly, about whether states might engage in other kinds of discrimination than racial discrimination, much less that states probably would not do so. He never discussed any kind of discrimination except racial discrimination.

It is very much true that all of the discussion about the Equal Protection Clause and the Due Process Clause was just obiter dictum, because Miller explicitly said: "The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law." Once he said that, then continuing to explain whether or not there was a violation of either clause was utterly irrelevant to the central holding of the case. But your point, TF, that Miller seemed to be referring to the prospect that the EP Clause does not only protect blacks from discrimination because Miller said "We do not say that no one else but the negro can share in this protection," is ignoring the context in which that statement was made -- not just the EP Clause but all of the Civil War Amendments.

Everyone has a race (at least one; the number of multi-racial people, like Barack Obama, is growing). Everyone is protected by the Equal Protection Clause when we say that it prohibits racial discrimination. But everyone is not protected from all kinds of discrimination, even though the Clause is worded that way. We can't take the EP Clause literally. It has to mean something narrower than what it says, and Justice Miller was exercising a sound judicial instinct.

[MarkD]

Hamilton was opposed to including a Bill of Rights in the Constitution because he thought it was unnecessary, and that doing so might be construed as an invitation to expand federal power.

[MarkD]

Hamilton was opposed to including a Bill of Rights in the Constitution because he thought it was unnecessary, and that doing so might be construed as an invitation to expand federal power.

Agreed, but the 14th was that invitation. The only question is how broad an invite it was.

Yes, that IS the question!
The Supreme Court has said, twice in the last 25 years, that in terms of passing judgment on whether the Due Process Clause of the 14th has been violated, "Our obligation is to define the liberty of all, not to mandate our own moral code." That statement of their obligation is absolutely incorrect. Because it is incorrect, the remainder of that sentence is infuriatingly hypocritical. The Due Process Clause does not protect any substantive liberties, but when the Court chooses to give that clause an interpretation that it does protect substantive liberties/rights, the Court IS choosing to decide how much freedom people ought to have, and that is when the Court IS mandating its own moral code.

The P & I Clause protects most of the rights enumerated in the first eight amendments, and it protects the right to travel within the United States. The DP Clause protects against unfair trial procedures, and the EP Clause protects, ... what I have been saying several times already. Using the clauses in Section 1 of the 14th is "legislating from the bench." Conservative Justices did it several times in the early 20th Century, liberal and moderate Justices have been doing since Skinner v. Oklahoma (an occassion in which the Court could have invoked enumerated rights, rather than un-enumerated rights, but only one Justice explicitly did so).

[MarkD]

And interpreters of the Due Process Clause who give it substantive meaning are cleverly performing a slight-of-hand trick

[MarkD]

It is not essential, it is legerdemain -a trick.
I drafted a proposal for a constitutional amendment that does these things:
1) Eliminates the "substantive" meaning of the Due Process Clause of the 5th Amendment
2) Explicitly requires the federal government to treat everyone equally (the equal protection interpretation of the Due Process Clause that the Supreme Court created in the mid-20th Century)
3) Limits the meaning of the 9th Amendment to being a rule applicable to the federal government only
4) Repeals the second sentence in Section 1 of the 14th Amendment and replaces it with much more detailed and specific rules that states have to follow. Tell the states precisely which rights they cannot violate, and precisely which kinds of discrimination they (and the federal government) cannot engage in. Forbid the federal courts from defining un-enumerated rights and defining un-enumerated versions of equality.
I hope this gets proposed and ratified. This is what is essential, not a judiciary that legislates from the bench.

[MarkD]

Shelby County v. Holder is not one of the decisions I am particularly familiar with, but skimming through a summary of how the Court ruled, yes, I am skeptical of it and am I open to possibility that the Court was inventing a new version of constitutional law. The Tenth Amendment grants states "equal sovereignty"? Section 2 of the Fifteenth Amendment requires Congress to use up-to-date info about which states or local gov'ts need to have Section 1 of the Fifteenth enforced against them?

Bush v. Gore was when the conservative wing of the Supreme Court was at its worse. Well, for that matter, it IS just plain the worst decision ever. I've also long been skeptical about the Shaw v. Reno line of decisions, and I keep hoping for a reversal of Arizona v. Fulminante, which the ROSKT Court also got wrong (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas).

BTW, I do not have any objection whatsoever to King v. Burwell. That was an example of when Scalia, Thomas, and Alito were wrong to dissent, because the rest of the Court got that one right. Lots of conservatives complain about the Supreme Court rewriting the ACA, but I'm not one of them who thinks that the ACA had to be taken literally.