Is there a decent chance SCOTUS won’t overturn Obergefell v. Hodges and Lawrence v. Texas?

[MarkD]

I doubt Gorsuch votes to overturn Obergefell, though his reasoning might be different than Kennedy’s.  
Banning gay marriage is straightforward gender discrimination in the exact same way that banning interracial marriage is race discrimination.

I agree with you that Gorsuch is not likely to overturn Obergefell, and that he will vote to uphold it most likely on Equal Protection (egalitarian) grounds, not "right to marry" (libertarian) grounds. But I disagree with you about why Obergefell should be seen as "straightforward gender discrimination in the exact same way that banning interracial marriage is race discrimination," just like I disagreed with Gorsuch about two years ago about his reasoning in Bostock.

First of all, I almost always use Originalism as my guiding legal philosophy, not Gorsuch's alleged "Textualist" technique. I believe in discovering what statutes and constitutions were intended to mean, not just read the text and assume that I have no other choice than to take every word in those documents literally. Second, regarding what Gorsuch said in Bostock: I simply do not believe that only Textualism compelled him to come to that conclusion; his personal feelings about gay people factored in as well. He's not the kind of person who would say "Some of my best friends are gay" but be a hypocrite about it.

Next, to examine the problems with your theory that bans on same-sex marriage are exactly the same as bans on interracial marriage, let's start by thinking about four fictional people: Ricky, Lucy, Fred, and Ethel. As we think about them, suppose from the outset, that we don't know -- and that we don't CARE -- what sexual orientation any of the four of them are; they could all be heterosexual (a 0 on the old-fashioned Kinsey Scale), they could all be homosexual (a 6 on the Scale), or they could be any degree in between, such as bisexual or pansexual (1, 2, 3, 4, or 5). Now suppose the four of them decided they want to pair up and become two married couples. The traditional, common-law definition of marriage -- de facto identical to the laws adopted by tens of millions of voters in most of the states in the United States during the period prior to 2013 -- says that Ricky can get married to Lucy or Ethel, but not to Fred, and likewise, Lucy can get married to Ricky or Fred, but not to Ethel. Thus, all four of them are being treated equally -- the exact same way as one another -- because they all have TWO options of who they can get married to.

If those traditional/common-law bans on same-sex marriage get repealed -- one way or another: by voters (three states in the US and the entire country of Ireland), by legislatures (eight states in the US, and by some other countries such as Germany), or by courts -- then those four people have THREE options for who they can get married to instead of two. The change in the law results in an expansion of the options of whom one can get married to. The fact of expansion of options IS similar to the phenomenon of legalization of interracial marriage, but it still is not exactly the same.

When interracial marriage was illegal, whites were allowed to marry any other white person (OF THE OPPOSITE SEX)(and not certain close relatives), and all nonwhites were allowed to marry other nonwhites (DITTO)(and ditto). But that law gave white people a larger pool of potential marrying partners than nonwhite people. "There's a lot of fish in the sea," is an expression that was more meaningful for whites than for nonwhites. This is a point that I believe the SCOTUS should have made in the Loving opinion, but Chief Justice Earl Warren forgot to make that point. I do approve of the Court's conclusion in Loving, and most of what was said in Section 1 of the opinion, but the opinion could have been better by pointing out the larger-pool-of-marrying-partners point I just discussed, as well as point out the several decisions that the Court had been making from Brown v. Board of Education on through McLaughlin v. Florida -- striking down ALL de jure segregation of the white race from nonwhite races in public education, public golf courses, public beaches, parks, courthouses, and even cohabitation. After the Court forbade all of those instances of de jure segregation of the races, it was only logical to come to the conclusion that de jure segregation of the races in terms of marriage was the next -- LAST -- step of the process of forbidding de jure racial segregation.

That is not at all comparable to bans on same-sex marriage, because those bans integrate the sexes, the exact opposite of segregation. Bans on same sex marriage do not even segregate gay couples from straight couples; they require all marriages to be HETEROSEXUAL MARRIAGES and do not allow HOMOSEXUAL MARRIAGES AT ALL. Bans on same-sex marriage ban Lucy-Ethel marriages just as much as they ban Ricky-Fred marriages, which is to say that both sexes are treated the exact same way. The victims of this specific kind of discrimination are homosexuals compared to heterosexuals, not women compared to men!!!

Furthermore, can you imagine what would have happened in 1967 if some Ricky-Fred couple, and/or a Lucy-Ethel couple had asked the SCOTUS for the "equal right to get married to the person I love"? A lawsuit like that would have lost before The Supremes in 1967 by a margin of at least 6-3, maybe larger.

Furthermore, the Loving decision did not unleash a floodgate of millions of people eager to get married to a member of an "opposite" race (whites getting married to nonwhites and vice versa); most whites still get married to whites, most blacks still get married to blacks, most Asians still get married to Asians, and so on. Interracial marriages are still a small minority of all marriages that occur. But legalization of same-sex marriage does unleash a floodgate of tens of thousands of gay couples who wished to get married, and who now can.

I wish I could quote here some lengthy excerpts from Chapter 3 of a book called "Same-Sex Marriage and the Constitution," written by a law scholar by the name of Evan Gerstmann. In that chapter, 23 pages long, he thoroughly dissects all of the legal arguments in favor of the view that "bans on same-sex marriage can be viewed as forms of sex discrimination," and he completely, emphatically rejects those arguments. The most succinct quotes of his that I will include here are:
[A formal legal argument that same-sex marriage ban is gender discrimination] "is deeply, fundamentally dishonest. It is based upon the dubious assertion that the ... ban is best understood as a policy that discriminates against women. It would be difficult to say this to gay men with a straight face.
"It is obvious that the group that is being discriminated against is homosexuals, be they male and female. They are the ones who are being told that their love and commitment is not worthy of being solemnized by marriage; that their relationships are not worth the legal protection that marriage would bring; that their life partners cannot be stepparents to their children; and so forth. To say that this is about discrimination against women instead of gays and lesbians is blatantly misleading. It is the use of law to manipulate categories and to mislead rather than to cast light, as Loving did, upon the true nature of state-sponsored discrimination.
"The law serves its highest purpose best when it serves the side of truth and strips away the obfuscations of prejudice. This purpose was served when the [US Supreme] Court declared that Virginia's antimiscegenation laws were a pillar of 'White Supremacy' rather than a neutral system of laws that treated the races equally." ...
"Fundamental differences between interracial marriage and same-sex marriage mean that the same-sex marriage ban cannot honestly be viewed as gender discrimination."

[MarkD]

I don't believe you can decouple discrimination on the basis of sexual orientation from sex discrimination. The two are intrinsically and inherently related.

I can and I always will decouple them.
It's true that there is a relationship between them. That's because the definition of sexual orientation includes an observation about the sex of the person AND the sex of who they are attracted to (male, female, both (or neither)). The same does not work in reverse: you can talk about any person's sex and be ignorant of - indifferent toward - that person's sexual orientation. So one definition is embedded within the other, not the other way around. But the definition of sexual orientation MUST include a variation on the word ATTRACTION. Without that word, there is no definition of a sexual orientation. The definition of sexual orientation MUST include an observation about TWO people -- the one who feels attraction and the one who is the object of attraction. The definition of sex is clearly identifiable by referring to only one person, and that definition is not dependent on who the person is attracted to.

You referred to two SCOTUS cases dealing with the subject of sex discrimination. I can easily refer to many more than those two. The two cases you mentioned -- Craig v. Boren and Mississippi University of Women v. Hogan -- both dealt with policies that were discriminatory toward men, treating men worse than women. I can name even more cases, such as Orr v. Orr (alimony law), Michael M. v. Superior Court of Sonoma County (statutory rape law), and Rostker v. Goldberg (the draft). Plus there are also cases addressing affirmative action programs for women, challenged by men, such as Johnson v. Transportation Agency, Santa Clara County. So sex discrimination can and sometimes does work both ways, often treating women worse than men, but sometimes the opposite occurs. But the same thing cannot be said about sexual orientation discrimination, right? Whenever somebody - anybody - has a policy of engaging in discrimination based on sexual orientation, who is always going to be treated worse: gay men, lesbians, and bisexuals (worse than straights)? Is it possible that some straight people will get treated worse than gay people? Like, in some sort of far-fetched hypothetical? If so, it is only going to be in a far-fetched hypothetical, not in reality.
I can, and I always will, see numerous differences between sex and sexual orientation. I won't equate them; I will only see a one-way ratchet of one definition being embedded within the other.

Marriage laws have never been statutorily constructed based on sexual orientation.

Of course, but that is because of the very long-term predominance of Heterosexual Supremacy that has gone back for literally centuries. It's been there from the start of the United States, it was there in the pre-Revolutionary War American colonies, and it had been there for centuries in English culture before the North American continent was settled, predominantly, by English settlers. Heterosexual Supremacy presumed these things: that being heterosexual is what all people were BORN TO BE, that homosexuality was a shameful, disgusting, perverted practice of a small minority of sinners, that those who do it damn well better keep their sinful, unnatural sex life in a closet -- keep it secret, don't brag about it -- and that such sinners should try to (as Archie Bunker once succinctly put it) "STOP THAT!" Furthermore, even the term "sexual orientation" is a relatively recent construct, in comparison to all those centuries of Heterosexual Supremacy. In the centuries before the term "sexual orientation" was invented, it would probably have been commonplace to refer to lesbians by the word lesbian, but to refer to gay men by words such as "sodomite" and "pederast." And the word "heterosexual" was preceded by -- what? -- "normal?"

In your first example, the individuals in question are being treated equally in some ways, but they are still being discriminated against in other respects. In your example, the fact that Lucy cannot marry Ethel is not somehow countenanced by the fact that Ricky cannot marry Fred and vice versa. Lucy cannot marry Ethel because she is a woman while Ricky would be permitted to do so because he is a man. That is without question the essence of sex discrimination.

No, the essence of sex discrimination is: "We'll allow Lucy-Ethel marriages, but we won't allow Ricky-Fred marriages."

I would also point out that the author you quote only mentions discrimination against women.

That's because I was only quoting from some sentences in the concluding pages of the chapter. I did not quote anything from the beginning pages or the middle pages of the chapter. Early in the chapter, Gerstmann discussed the most simple legal argument that sexual orientation discrimination is sex discrimination, calling it "the formal argument." That first, simplest kind of legal discussion can simply be phrased in such a way as to talk about the effect on four people like Ricky, Fred, Lucy, Ethel in the way that I did before. But in addition to "the formal argument" are "the feminist approach" and "sex stereotyping theories." In the middle of Chapter 3, a section subtitled "Heterosexism and Patriarchy":

The formal argument is not the only argument that the same-sex marriage ban is a form of gender discrimination. There are other, more subtle versions of the argument. One version is what Theodore Schroeder calls the feminist approach. Pioneered by Sylvia A. Law, this approach "begins with the premise that homosexual conduct is despised because it challenges our culture's traditional gender roles, roles with a hierarchical bias against women" Law calls this phenomenon "heterosexism." According to this theory, "sexual orientation discrimination furthers the ultimate goal of sex discrimination: maintenance of the traditional model [of gender roles]"
For radical feminists such as Catherine MacKinnon, these traditional roles, which are furthered by heterosexism, are at the core of the oppression of women. "[W]e have had enough of the glorification of this heterosexuality, this erotization of dominance and submission, while women-centered sexual expression is denied and stigmatized."
One of the best elucidations of this view is by William Eskridge, who describes homophobia as a "weapon of sexism." According to Eskridge, "Homophobia became one way modern urban culture responded to women's political and social equality." Homosexuality is despised because it is a threat to a gender-dichotomized world in which men are active and powerful while women are weak and passive. In the homosexual world, men can be  passive and penetrated while women can be dominant and take on the traditionally male sexual role. By demonizing gays and lesbians, heterosexual men keep women in their place. "Numerous studies by social psychologists have shown support for traditional sex roles correlates strongly with disapproval of homosexuality."
But this demonization of homosexuality does not only oppress gays and lesbians. "This is the argument that in contemporary American society, discrimination against lesbians and gay men reinforces the hierarchy of males over females and thus is wrong because it oppresses women."
This argument has also been applied to the same-sex marriage debate. The requirement that marriage be duel gendered railroads men and women into roles of husbands and wives and into a heterosexual institution that is historically and perhaps inherently oppressive toward women. Cass Sunstein argues: "It is possible to think that the prohibition on same-sex marriages, as part of a social and legal insistence on 'two kinds' [of gender], is as deeply connected with male supremacy as the prohibitions of racial intermarriage is connected with White Supremacy. Perhaps same-sex marriages are banned because of what they do -- because oh how they unsettle -- gender categories. Perhaps same-sex marriages are banned because they complicate traditional gender thinking, showing that the division of human beings into two simple kinds is part of sex-role stereotyping, however true it is that men and women are 'different.' " (Citations omitted, but colorized emphasis added by me.)

This is why, in the concluding pages of the chapter, Gerstmann refers to "discrimination against women."

Lastly,

You also note what likely would have happened if the question of same-sex marriage had reached the Court in 1967. I don't think you're wrong in your supposition or the likely outcome. On the other hand, if you go back 48 years prior to that decision, do you really think the Court would've struck down laws barring interracial marriage in 1919? I certainly don't think so. There were only 16 states that banned interracial marriage when Loving came down in 1967. That was also at a time when just 20% of Americans approved of interracial marriage (17% among whites and 56% among non-whites). Prior to 1948, 30 of the then 48 states had anti-miscegenation laws. There's no way those laws wouldn't have been upheld prior to the Warren Court.

I completely agree. Like I said above, Loving was the last step in the overall trend of striking down de jure segregation of the races. There was no way that the SCOTUS would have dealt with interracial marriage BEFORE it dealt with segregation of schools, golf courses, parks, beaches, courthouses, or even cohabitation. All those other decisions had to come first, because they created a linear path of growth that would eventually lead to and point to the issue of interracial marriage. The same kind of linear path of growth has not happened in terms of how the SCOTUS has treated gay people. The racial cases were unanimous (because everyone on the SCOTUS knows that racial discrimination is the most unacceptable kind of discrimination), but the cases about gay men, lesbians, and bisexuals have not been unanimous (because of ideological divisions). Romer v. Evans lead to Lawrence v. Texas, which lead to U.S. v. Windsor, and finally Obergefell v. Hodges. There is virtually no similarity whatsoever between the two paths of growth, and Justice Anthony Kennedy himself would obviously loathe trying to make any comparison between race and sexual orientation.

[MarkD]

Lawrence is bad law.

Amen. I hate the Lawrence decision and the opinion passionately. There has not been any SCOTUS decision that has made me angrier. There is no precedent that I more badly want to see overturned.

And to think that I used to want a decision like that. I'm 57 y.o. now, and Bowers v. Hardwick was handed down when I was 21. During the period of 1986 to 1990, I wanted Bowers to be overturned, but that was when I was young, naive, and unaware about the original meaning of the Ninth Amendment. Once I learned what that amendment was intended to mean, I changed my mind about whether Bowers should be overturned. By 1991, I realized that it was correctly decided, even if it had a few wrinkles in the accuracy of what it said. Now I want to reinstate it, providing it with an even more accurate interpretation of the Constitution.

I'll get back to you soon - eventually - politicallefty.

[MarkD]

Lawrence is bad law.

Amen. I hate the Lawrence decision and the opinion passionately. There has not been any SCOTUS decision that has made me angrier. There is no precedent that I more badly want to see overturned.

Nothing makes you angrier than the Supreme Court decision that says you can't criminalize sex between consenting adults?

If you looked at the rest of my quote above, you should have realized why I have such an emotional investment in the topic of sodomy laws and whether the SCOTUS should overturn them, and whether they should have overturned Bowers.

It can be very easy to react to Lawrence the same way that Robert Bork spoke about Griswold in his book The Tempting of America. "The 1965 decision in Griswold v. Connecticut was insignificant in itself but momentous for the future of constitutional law." There is a lot of similarity between laws banning (or regulating) contraceptives and laws banning sodomy -- similarity in terms of why legislatures pass those kinds of laws, similarity in terms of how often people are arrested or prosecuted for violating them, and similarity in terms of what effect they have on the sex lives of people who intend to violate them.

Long before Lawrence was handed down, I read a quote from Benjamin Franklin that goes: "Laws which are too strict are seldom enforced, and laws which are too lenient are seldom obeyed." (I should note at the outset that quoting a statement like that from one Founding Father is not tantamount to having discovered the intended meaning of anything that is in the Constitution.) When I saw that quote, I realized that is the basic problem with both laws against contraceptives and laws against sodomy: those laws are so strict that law enforcement officials (like cops and public prosecutors) don't want to enforce them, and when people see that those laws are not being seriously enforced, then if they want to violate those laws, they can go right ahead and do so virtually all they want, because there is no realistic reason to fear that they might be arrested or prosecuted for doing so (except in some rare circumstances that I'll discuss below). That's why these kinds of laws are so insignificant.

But Bork said just because the case was insignificant does not mean that the Court's decision and opinion were not "momentous for the future of constitutional law." Bork explained that more thoroughly when he discussed the case and the opinion of Skinner v. Oklahoma. Justice Douglas wrote both Skinner and Griswold, and in both opinions, Douglas was displaying his knack for concocting new law like a magician pulling a rabbit out of a hat.

Oklahoma enacted a statute providing for the sterilization of habitual criminals. A "habitual criminal" was defined as a person who had committed two "felonies involving moral turpitude." ... A certain Skinner had been convicted of felonies three times, once for stealing chickens and twice for robbery with firearms.
The problem in analyzing the case, Skinner v. Oklahoma, is that the statute strikes the modern sensibility as savage. There is a natural tendency to want to strike it down. But the Constitution is a legal document, one different in texture from almost all others, but still a legal document and not an expression of a mood or a general injunction to be "civilized." To nullify the Oklahoma legislature's policy on the grounds that it shocks the judge is to embed in the Constitution the judge's notions of public policy. ...
The approach Douglas [used] was not merely improper on the occasion on which it as used; it led to more judicial lawlessness in the future. Judges ... are not usually content to say that a statute is unconstitutional because it is abominable. They try, therefore, to frame doctrine so that the intolerable law may be disposed of on what sound like legal grounds. But when the case is gone and the abomination erased, the doctrine remains. Lawyers and lower court judges will rely upon it, new cases will be decided in reliance upon it, and ... judicial power will have expanded to yet new territory. ...
[Douglas said the Oklahoma law was unconstitutional] because it affected "one of the basic civil rights of man." It was clear, of course, that nothing in the Constitution made the state of being fertile a civil right. ...
If the only effect of Skinner were to prevent a few sterilizations in Oklahoma, these matters would not be worth discussion. We could shrug and forget it as an aberrational decision that was at least morally acceptable if not constitutionally justifiable. But that is not the way law works. Decisions are precedents; doctrines are applied to new cases; and what begins as an attitude of "Let's do it just this one time" grows into a deformation of constitutional government. Skinner, in its attempt to frame doctrine that would stop the operation of a law that the Court regarded as cruel, framed doctrine that gave judges a new power to read their likes and dislikes into the Constitution. (Bork, The Tempting of America, pages 62, 63, and 66-67.)

(I don't actually agree with Bork that there is no constitutional way to justify the conclusion in Skinner. There are two other ways to come to the same conclusion that the Court, as a whole, did in that case without distorting the meaning of the Constitution. Chief Justice Harlan Stone wrote a concurring opinion to Skinner, explicitly disagreeing with Douglas's stated doctrine, but finding that Oklahoma would violate Mr. Skinner's right to procedural due process if it sterilized him. And another way to come to a valid conclusion that the Oklahoma statute was unconstitutional would be to cite the Cruel and Unusual Punishment Clause of the Eighth Amendment. Punishing someone for multiple counts of felony larceny by sterilizing them is a form of punishment that goes much too far; the punishment is too severe in proportion to the crime that was committed. That was a legal argument that Skinner's attorney made to the Supreme Court, as Douglas's opinion explicitly acknowledged, but Douglas passed over that legal argument in favor of a different way of creating a new doctrine that isn't in the Constitution.)

Not only is all of this very important -- the deformation of the Constitution by sly tricks -- regardless of whether the particular issue IS important, such as sterilization, or as unimportant as rarely enforced laws about contraceptives and sodomy, but I also got very, very angry at Justice Kennedy's opinion in Lawrence because it was chock full of flat-out LIES and displays of HYPOCRISY. Those lies and hypocrisy were very similar to what Kennedy had written in Romer v. Evans, a decision that also made me extremely angry, so when Romer served as a precedent that led to Lawrence, what I saw was Kennedy compounding more lies (in Lawrence) on top of lies he had already written (in Romer). However, in order for me to spell out all of the lies in those two opinions, I would have to make this whole post five or more times longer than it already is.

Lawrence is bad law.

It may be contrived poorly on a lawyerly-constitutional level (I haven't read the opinion myself to examine if this is true) but so were the damn laws it overturned.  Selective enforcement of a persecuted minority for private consensual intimacy in their own home?  That sounds like a communist state.

Two wrongs do not make a right. Sh**ty laws made by legislatures should be repealed by the legislature, but if the judicial branch concocts sh**ty excuses for "striking down" the legislature's sh**ty laws (see my arguments above in response to Ferguson97), then that only exacerbates the amount of sh**tiness there is in government, leading to even more contempt for all of the branches of government, at all levels of government, and it leads to even greater contempt for the legal profession. (Hence, we come up with jokes like, "Do you know what a lawyer and a sperm have in common? They both have a one-in-a-million chance of becoming a human being.")
Violations of sodomy laws -- and arrests for those violations -- do not just occur in someone's own home (the latter is extremely rare). When I first started getting involved in the gay community in St. Louis back in the 1980s, I heard many rumors that in the southwest corner of Forest Park, was an area called the "fruit loop." It was a forested region of the corner of the park that few people ever went to -- there aren't any park attractions in the southwest corner -- except that gay men used the forest in that corner to "cruise" each other, and once they'd met there in the park, they didn't go to their homes, they stayed there in the park and had sex in the woods. Besides that, I heard many rumors that certain gay bars had a back room where a perpetual orgy was taking place, so again, if you met someone in the bar, you didn't have to go home to have sex; people would have sex right there in the bar. The arrests of gay men that occurred in St. Louis, in the 1980s, were in the "fruit loop," in Creve Couer Lake Park (in the northwest region of St. Louis County), and in those bars that had a back room. The reason I was learning about those places, and that cops DO arrest gay guys in them, is because I was being taught that those are the places to avoid if you don't want to get arrested.
Be that as it may, I need to point out that the last statement you made is purely emotional, not a legal argument.

[MarkD]

Politicallefty, I don’t see any point in trying to continue beating a dead horse in terms of whether or not you and I can find any agreement on the issue we’ve been discussing: are bans on same-sex marriage clearly a form of sex discrimination? I adhere to the philosophy of Originalism, but, as I recall you saying on another thread, you identify yourself as adhering to Textualism. Origanlists and Textualists arrive at the same interpretation of laws on many occasions, but there are certainly several occasions in which they don’t, and this is obviously going to be one of them.

Many times here in Talk Elections, when I want to emphasize some legal point, I quote from Robert Bork, because his book The Tempting of America, taught me more about constitutional law than anything else I have ever read. I agree with Bork’s philosophy of Originalism; I agree with him that Originalism is the only morally acceptable judicial philosophy to hold; and I agree with him that Originalists must once in a while bow down and respect precedents that were not based on Originalism if the precedents are fait accompli – effectively irreversible for practical reasons. I feel as though I’ve got to repeat, here, some of what Bork has said. Thirty-five years ago, when he testified to the Senate Judiciary Committee (chaired at the time by Joe Biden), he said:

The judge’s authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or their representatives voted for. The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state Governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.
How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. …
If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.
He or she then diminishes liberty instead of enhancing it. … [W]hen a judge goes beyond [his proper function] and reads entirely new values into the Constitution, values the framers and the ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy. …
My philosophy of judging, Mr. Chairman, as you pointed out, is neither liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to the Congress, the President, the legislatures and executives of the 50 states, and to the American people. (From Tempting, page 300.)

For the next two statements Bork made in his book that I will "quote," I will paraphrase him rather than quote him verbatim. Whatever is your constitutional philosophy, it is your theory of what it is that legitimizes the power of judicial review – the power of judges to strike down democratically-made laws. If you take the position that you like the result of what the SCOTUS has done, even though you know that it was not what the proposers and ratifiers of the Constitution intended, and if you don’t care that it went beyond the original intent, that is tantamount to saying that you prefer a judicial oligarchy with which you agree to a democratic-republic with which you do not. (Page 78 of Tempting.) And Bork emphasized how morally important it is to respect the intentions of those who adopted the Constitution:
There exists among some lawyers and judges a weary cynicism that often finds expression in words attributed to Charles Evans Hughes: “The Constitution is what the judges say it is.” Hughes was hardly the first to have made the point. About two hundred years earlier, in the year 1717, a clergyman named Bishop Hoadley said, “[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them.” These statements are sometimes taken to ratify cynicism. They should not be. Nobody who knows anything about Hughes’s career would suppose he meant that power is all. It is essential to bear in mind the difference between the reality of judicial power and the legitimacy or morality of the use of that power.
It IS a truism, but it is not anything MORE than a truism, that, for all practical purposes, at any given moment, the Constitution is what the Justices say it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become void just because the Justices have said so. But behind that reality lies another fact just as real, and one with normative meaning: there is a historic Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. It is that meaning the judges ought to utter. If law is something more than mere naked power, it is that meaning that the Justices had a moral duty to pronounce. Bishop Hoadley and Chief Justice Hughes, far from reconciling us to cynicism, emphasize the heavy responsibility judges bear. Power alone is not sufficient to produce legitimate authority. (Page 176 of Tempting.)

Not long after I read Bork’s book, I read the Supreme Court’s opinion in Harper v. Virginia Board of Education, because I could see that something which Justice William O. Douglas wrote in that majority opinion made Bork pretty pissed. Upon reading Justice Hugo Black’s dissent, I could see very clearly that he was even more angry than Bork was. Let me state at the outset, before I quote Douglas’s opinion and Black’s dissent, that Black did use a couple of logical fallacies, but I’m sure that was because of how angry he was. Black’s implicit anger has sometimes brought tears to my eyes when I read his dissent.

[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. … Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.

That statement obviously made Hugo Black livid. (To see that he was, in fact, an Originalist, see what he said in this quote about “the original meaning.”)

The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself, but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a "political theory" embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power, but are far less qualified, to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V.

The logical fallacies that I see in that quote are that Douglas was not advocating to “save the country from the original Constitution,” he was advocating to transcend the original meaning in order to improve the country. And Douglas did not believe that the original meaning of the Equal Protection Clause was “outdated,” he believed that the original meaning -- "the political theory of a particular era" -- was inadequate. Whenever I re-read that quote, and I see the two fallacies, I sense how extremely angry Black was when he wrote those words, and the combination of his anger with the profundity of his saying that the Justices do not have the constitutional power, and are not qualified, to change the meaning of the Constitution are statements that have sometimes made me cry.

There is one more federal judge, besides Bork and Black, who has made me see the wisdom and necessity of adhering to Originalism, and that is Judge Learned Hand. In 1933, he wrote an essay entitled How Far Is a Judge Free in Rendering a Decision?, and he recited it over a nationally-broadcast radio program. The essay was later printed in his famous 1952 book, The Spirit of Liberty. In that essay, Hand dissected the Textualist and the Legal Realist schools of thought about how judges should decide cases. He did not use either of those terms; he called Textualism the “Dictionary school,” and he had no label to give to Legal Realism, but I can readily see those are the proper modern descriptions of the two schools of thought that Hand referred to. Hand said neither of those schools of thought are correct (and neither school applies its theory consistently). In the last two paragraphs of the essay, Hand advocated for Originalism – without using that word either.

But the judge must always remember that he should go no further than he is sure the [lawmakers] would have gone, if [they] had been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in society for which he speaks would have come to just result, even though he is sure that he knows what the just result should be. He is not to substitute even his juster will for theirs; otherwise it would not be the common will which prevails, and to that extent the people would not govern.
So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks is best; he must leave that to the common will expressed by the [lawmakers]. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves. (Learned Hand, The Spirit of Liberty, 1952, pages 109-110.)

I have also contemplated how Bork would clarify what Hand said: Bork would say that when Hand said “go no further,” but “put into concrete form,” the lawmakers' intentions, he meant that judges should do those things when identifying a major premise in whatever law they are interpreting –  common law precedents, statutes, or constitutions. Bork taught me that it is traditional for lawyers to learn how to engage in legal reasoning by using the syllogism. I had to go look up the definition of syllogism the first time I read Bork’s book, and when I did, I learned that a syllogism is ”a logical structure of formal argument that consists of a major premise, a minor premise, and a conclusion that must be true if the premises are true.”

So, what does all this mean in terms of how I interpret the Equal Protection Clause? I would have thought you have seen me say this before, but in case you haven’t, here’s my interpretation: the EPC should be limited only to the topic of racial discrimination. You saw me say, in my April 3rd post, that all Supreme Court Justices have understood that racial discrimination is the most constitutionally unacceptable form of discrimination (and you said you agree with that). What I should have said – in addition, or instead – is that racial discrimination has always been understood as the one kind of discrimination that was foremost on the minds of those who adopted the Fourteenth Amendment. It is clear from the Court’s first-ever interpretations of the EPC that prohibiting racial discrimination was the main purpose, if not the ONLY purpose, of the EPC. The first-ever interpretations of the EPC were in The Slaughterhouse Cases, and the white-only jury cases of 1880, mainly, Strauder v. West Virginia. Put another way, the first major premise that the SCOTUS ever took from the EPC was the premise that racial discrimination by state governments is absolutely prohibited. The text does not guide anyone to that interpretation, but the historical context of the Fourteenth Amendment SHOULD. Hence, that interpretation is an Originalist-style interpretation.

And IMO, that is the only major premise that the SCOTUS should have ever inferred from that Clause. IMO, the SCOTUS has performed sloppy lawyerly craftsmanship almost every time it has expanded the meaning of the EPC to address additional major premises. The second major premise the SCOTUS ever inferred from the EPC was the so-called rational basis test. That concept was that the EPC cannot be taken literally, it is not an absolute rule, but it is a limp admonition that states must not be arbitrary and capricious when they treat people differently from one another. The Court was very sloppy in creating that major premise, and it has not been consistent in applying the legal doctrine that it has articulated. One case in which the Court applied rational basis scrutiny to a law and upheld it was Tigner v. Texas, (1940); Justice Frankfurter wrote a sentence that has become often-repeated in rational basis cases ever since. “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” The first appropriate response to Frankfurter should have been: of course not, you idiot, because the EPC does not refer to “things,” it refers to people. You should have said “human characteristics” rather than “things.” If you said that, and added the caveat of “except for race,” then the statement would make complete sense.

The third major premise the Court eventually got around to inferring from the EPC is that state governments are not allowed to discriminate against aliens – i.e., noncitizens. That is a very peculiar premise to infer from the Constitution, when you consider the fact that the Constitution itself, as a whole, engages in discrimination against noncitizens, by making citizenship a qualification for holding elected federal office. The Court was eventually inconsistent about applying this premise too.

The fourth major premise the Court concocted was a generalization: that the EPC attacks all forms of xenophobia. “[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Bork protested against that concept, because it is utterly subjective, and it could and eventually did lead to the phenomenon of SC Justices reading their personal likes and dislikes into the Constitution. I completely agree, and on this particular premise, I also agree with Bork that John Hart Ely’s famous book “Democracy and Distrust” contains within it an unintentional self-contradiction. This fourth premise paved the way for the sixth and the eighth premises.

The fifth major premise was that the EPC protects “fundamental rights” that are not enumerated anywhere in the Constitution. That trend started with Skinner v. Oklahoma (containing more sloppy craftsmanship), and led to subsequent decisions such as Baker v. Carr, (and a whole slew of other voting-rights cases, such as Bush v. Gore -- the worst conclusion of all time), Eisenstadt v. Baird, Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges.

The sixth major premise was the concept of discrimination against illegitimate children, starting with the case of Levy v. Louisiana (1968) – which has by far been the worst-written majority opinion of the Court I have ever seen. That ruling led to several more cases handled by the Court throughout the 1970s and into the early 1980s. It surprised the hell out of me when I first learned about the string of cases dealing with this topic, and when I saw the cases, (in particular, when I saw a specific statement by Justice Brennan in his dissenting opinion in Labine v. Vincent (1971)) I saw that the best way to compare sexual orientation to race is not by drawing a line from racial issues to sex/gender issues then to sexual orientation, but to draw the line from racial issues to illegitimacy of childbirth issues and then draw a line from that to sexual orientation issues. I’ve seen Prof. Lawrence Lessig say so too, in a Fordham Law Review article about 24-25 years ago. Lessig said that, even though Levy v. Louisiana was an “extraordinarily sloppy” opinion, it should serve as a template for how the SCOTUS should address cases of discrimination against gays, lesbians, and bisexuals.

The seventh major premise that the Court has been dealing with started in 1971 with Reed v. Reed, which coincided with, as you put it, politicallefty, “second-wave feminism.” Reed was purported to be based on rational basis scrutiny, but I don’t think that really makes any sense, and Justice Brennan tried to merge the Reed precedent into his intermediate scrutiny premise that he concocted in Craig v. Boren. Then the eighth major premise may possibly be sexual orientation discrimination, although Romer was purported to be an example of rational basis scrutiny (and the second-worst written majority opinion I have seen), it eventually became clearer, in U.S. v. Windsor, that the Court was applying some kind of a balancing test, rather than any test that has ever been articulated before in any majority opinion (Justice J. P. Stevens articulated the concept of using a balancing test to ALL kinds of discrimination, uniformly, in his dissent in Cleburne v. Cleburne Living Center). (And as I said two paragraphs above, Obergefell was actually based on “fundamental rights” reasoning: libertarianism instead of egalitarianism.)

(To be continued)

[MarkD]

(Continuing)
But again, as I’ve said, I think that all of these additional major premises have all been mistakes, and I have seen another law scholar who agrees with me about that.

Nevertheless the case of sex discrimination points up the fragility of the Court’s initial decision to extend equal protection beyond the racial classifications that the Court once agreed the clause was all about [referring to Slaughterhouse and Strauder]. No doubt it was a little late by the time the gender cases were decided to limit the clause once again to race, but that does not make it any less regrettable the Court’s original failure to justify turning what might have been a firm guarantee against racial discrimination into a flexible tool for striking down any laws found unreasonable by five unelected judges. (David P. Currie, The Constitution in the Supreme Court: The Second Century (1888-1986), 1990, page 500.)

It’s “regrettable” because the SCOTUS keeps on expanding its own power – incrementally destroying federalism and separation of powers – it keeps on performing unexpected/surprise tricks on the legislators and voters of the state and local governments, the Court’s written opinions have almost always been sloppy and unpersuasive, and it all drives a nail into the heads of those of us who are Originalists. To us, the syllogism was not properly utilized; the major premises were not true, so the conclusions were not true either. (There have even been some conservatives who protest about Bush v. Gore, although not enough have protested.) To us, it makes it all the more HORRIFIC that Justice Douglas said, in Harper, that the Court has “never been confined to historic notions of equality. … Notions of what constitutes equal treatment … DO change.” (In some texts, I have seen the word “do” in italics, but in some others it was not italicized, just in normal print.) When is the “notion” of what the EPC means going to stop changing? When is the SCOTUS going to start following Judge Hand’s advice (and it was, indeed, just advice) to “go no further” than how far the Justices know the framers and ratifiers of the EPC would have gone? When is the Court’s opinions going to stop being as sloppy and unpersuasive as I’ve seen (and how sloppy Professors Currie, Lessig, and Gerstmann have said the Court has been)?

For those of you “lefties” who want the SCOTUS’s power to keep growing and for the EPC to be used to address additional kinds of xenophobia, I’m sure you never want it to end. To those of us on the right, it is appalling, and we want it to end ASAP. We want the United States to be a true democratic-republic, not a judicial oligarchy. And divisions like those between you and I are part and parcel why America, as a whole, has so many intense, divisive fights over the confirmation of Supreme Court Justices.

In the contemporary political context, those who fear conformity have tended to describe themselves as liberal and have tended to applaud the judicial “protection” of human rights. Those who fear diversity have tended to call themselves conservatives and have been appalled by judicial “usurpation” of the majority’s discretion to form the kind of community it finds most conducive to its own happiness. The former tends to approve of the expansive theories of constitutional interpretation, … while the latter tends to prefer the restrained theories of judicial review. These alignments are neither perfect nor inevitable, but the debate has surely been shrill. (John C. Hughes, The Federal Courts, Politics, and the Rule of Law, 1995, page 206.)

To wrap up a couple other points in your April 6th post, I had said, and you replied:

Of course, but that is because of the very long-term predominance of Heterosexual Supremacy that has gone back for literally centuries. It's been there from the start of the United States, it was there in the pre-Revolutionary War American colonies, and it had been there for centuries in English culture before the North American continent was settled, predominantly, by English settlers. Heterosexual Supremacy presumed these things: that being heterosexual is what all people were BORN TO BE, that homosexuality was a shameful, disgusting, perverted practice of a small minority of sinners, that those who do it damn well better keep their sinful, unnatural sex life in a closet -- keep it secret, don't brag about it -- and that such sinners should try to (as Archie Bunker once succinctly put it) "STOP THAT!" Furthermore, even the term "sexual orientation" is a relatively recent construct, in comparison to all those centuries of Heterosexual Supremacy. In the centuries before the term "sexual orientation" was invented, it would probably have been commonplace to refer to lesbians by the word lesbian, but to refer to gay men by words such as "sodomite" and "pederast." And the word "heterosexual" was preceded by -- what? -- "normal."

- skip -
All of what you said there is disgusting and awful and a shameful aspect of this country, both past and present. There are many things that were considered acceptable and normal that no longer are. None of that changes the basic principles of the Fourteenth Amendment and the Equal Protection Clause.

As a gay man who believes in Originalism, I completely understand why you say it is a disgusting, awful, and shameful part of American history, but to me it means that our Founding Fathers, in 1787 through 1789, and the proposers and ratifiers of the Fourteenth Amendment, in 1866 through 1868, could not possibly have intended to create a legal guarantee that, one day, far off into the future, gays, lesbians, and bisexuals would eventually get “equal rights.” If “homophobic” refers to people who are morally judgmental towards homosexuals and bisexuals, then our Founding Fathers and the people who adopted the Fourteenth were homophobic too. Even gay men, lesbians, and bisexual people AT THE TIME were probably not salivating at the chops, thinking, “Oh boy! We’ll get equal rights some day!”

And the "basic principle" of the EPC ought to be just racial equality. The "basic principle" of the rest of the second sentence of the Fourteenth ought to be that states should not violate most of the rights enumerated in the first eight amendments, or the right to interstate travel. Nothing else should be inferred from that sentence of the Fourteenth.

Lastly,

You also started your sexual orientation case line with Romer, but it really started with Bowers. That went the other way, ...

If you and I can agree that, when either of us cites a string of cases that all deal with the same topic, we will cite cases in which the government won and the parties who challenged the government lost, in addition to when the case went the opposite way, then the real origin of the gay rights cases was not Bowers, but about three weeks before Loving v. Virginia in 1967: Boutilier v. Immigration and Naturalization Service.

[MarkD]

Politicallefty, I'll pass over the vast majority of what you said, and I'll just address two of the things you said near the end.

For the most part, I don't think their intentions are relevant. They put the words they did into the Constitution and that's what we have.

This is something about which I will never be able to agree with you. Here is a quintessential example of when an Originalist and a Textualist will have to agree to disagree -- and stop arguing with each other.

As an alternative way of answering your question about my view of the top Warren Court decisions, I'll list not just ten decisions, but I'll list ten constitutional topics/subject areas and list many of the Warren Court decisions I agree with. In this list, I am not always in agreement with the Court's opinion, and which provision of the Constitution the Court cited, but I think all these conclusions are good decisions.

The best Warren Court cases:

Segregation cases: Brown v. Board of Education, Bolling v. Sharpe, Mayor of Baltimore v. Dawson, Holmes v. Atlanta, New Orleans City Park Imp. Ass’n v. Detiege, Cooper v. Evans, Gomillion v. Lightfoot, Johnson v. Virginia, McLaughlin v. Florida, Loving v. Virginia
Double Jeopardy cases: Green v. United States (1957), Benton v. Maryland
Interrogation of suspect cases: Spano v. New York, Escobedo v. Illinois, Miranda v. Arizona
Search warrant cases: Mapp v. Ohio, Katz v. United States, Chimel v. California
Right to counsel case: Gideon v. Wainwright
Freedom of speech/assembly/petition cases: NAACP v. Alabama, Edwards v. South Carolina, Brandenburg v. Ohio
Freedom of the press: New York Times v. Sullivan
Freedom of religion cases: Torasco v. Watkins, Sherbert v. Verner
Right to travel cases: United States v. Guest, Shapiro v. Thompson
Right to serve in Congress: Powell v. McCormack

Even though the Warren Court was well-known for its liberalness and its frequent support for protection of civil rights/liberties, we should not forget about the fact that the Court did not always support claims that "the government" (i.e., federal, state, or local governments) "has violated my rights." Here are several "conservative/restrained" decisions of that Court which I also agree with: Lassiter v. Northampton County Board of Elec., Hoyt v. Florida, The Sunday Closing Law cases (McGown v. Maryland and Braunfield v. Brown), Ferguson v. Skrupa, Adderley v. Florida, Fortson v. Morris, Boutilier v. INS, Terry v. Ohio, United States v. O’Brien

I mostly agree with this quote by former U. of Chicago Law School Professor David P. Currie:

While Earl Warren was Chief Justice, … the Supreme Court remade constitutional law in the mold Justice Stone had cast in 1938, giving broad protection to … interests protected by the Bill of Rights. In so doing the Court made this country a decidedly better place. …
In most cases, in my opinion, the Warren Court reached its revolutionary conclusions within the confines of fair interpretation of the relevant constitutional provisions – often, indeed, fulfilling the promise of provisions that earlier [SCOTUS] decisions had given an excessively cramped application. …
On the whole, … it was an inspiring time; a time of triumph for liberty, democracy, and equality, and for the human spirit; a time to be proud of the Supreme Court, of the Constitution, and of the United States. (David P. Currie, The Constitution in the Supreme Court; The Second Century, 1888-1986, published 1990, pages 454, 457, 459.)

I don’t feel like complementing the Warren Court as strongly as Prof. Currie did, however, because I think the Warren Court made too many mistakes, in addition to the ones the Court got right. I think the Warren Court made even more mistakes than the following mistakes that Currie pointed to.

Not surprisingly, however, the activism of the Warren years spawned occasional excesses. In such cases as Bolling v. Sharpe, Reitman v. Mulkey, Watkins v. United States, Slochower v. Board of Regents, Griffin v. Illinois, Miranda v. Arizona, and Robinson v. California, the Court’s zeal may have gotten the better of its judgment. The most egregious example … is the famous 1965 decision in Griswold v. Connecticut. … (Ibid, page 458.)

As I indicated above, I support Bolling and Miranda, so I disagree with Prof. Currie about whether the Court went too far on those two cases. I have no particular opinion about Watkins, Slochower, and Griffin, one way or the other. I agree with Currie about Reitman, Robinson, and Griswold. But the list of wrong Warren Court decisions needs to be longer than the eight cases Currie mentioned. In the first Currie quote I have above, I put an ellipse between the words “to” and “interests.” Here is what Currie had said which I previously omitted: “the political process, to discrete and insular minorities, and to”. The Warren Court decisions about “the political process” dealt with voting rights, and the only “discrete and insular minorities” that I can think of that the Warren Court “protected” are blacks, religious-minority groups, and illegitimate children; while I certainly agree with protecting blacks, and the Free Exercise Clause justifies protecting religious-minority groups, I certainly don’t agree with assuring equal rights for illegitimate children, for reasons I spelled out in my last long post.

Here are some of the worst Warren Court decisions, IMO.

Unenumerated rights: Griswold v. Connecticut, Reitman v. Mulkey, Hunter v. Erickson, Loving v. Virginia (Section 2 of the opinion)
Voting rights cases: Baker v. Carr, Wesberry v. Sanders, Reynolds v.  Sims, Avery v. Midland County, Kirkpatrick v. Preisler, Gray v. Sanders, Harper v. Virginia Board of Elec., Kramer v. Union Free School District
Cruel and Unusual Punishment case: Robinson v. California
Establishment of Religion cases: Engel v. Vitale, Abington School District v. Schempp, Epperson v. Arkansas
Equal rights for illegitimate children and their mothers: Levy v. Louisiana, Glona v. American Guaranty and Liability Co. (these two were companion cases, handed down the same day; they were like opposite sides of the same coin; decided by the same 6 to 3 division of the Justices)
Free speech cases: Tinker v. Des Moines, Street v. New York

Prof. Currie offered strong praise for the Warren Court’s decisions regarding the voting rights cases and the Establishment of Religion cases, and I quite strongly disagree with him about those. I don’t understand why Currie did not criticize Levy and Glona.

[MarkD]

First of all, thank you, Donerail, for confirming that my memory was more or less in tact. I knew I had to have seen the word "do" in italics somewhere, and now it makes the most sense that it was indeed in the original writing, as printed in the U.S. Reporter. (I haven't looked at any volumes of the Reporter in many years, since I now just rely on the internet: Justia, Findlaw, etc.)

Second, I think Justice Douglas was not only rockin', but he was rollin' too. I think he was rolling on the floor laughing his ass off. Especially when he got to the last sentence of the next paragraph; six sentences after he said that "notions ... do change," Douglas said, "Our conclusion, like that in Reynolds v. Sims, is founded, not on what we think governmental policy should be, but on what the Equal Protection Clause requires." I think he was rolling on the floor laughing his ass off when he wrote that. Do you think he sincerely meant it? Or, to put in a slightly different way, ignore the fact that Douglas used first person plural pronouns -- because he was writing an opinion on behalf of himself and five colleagues on the Court -- and suppose he used first person singular pronouns instead. Suppose he wrote, "My conclusion ... is founded, not on what I think governmental policy should be, but on what the Equal Protection Clause requires." Do you think he sincerely meant that?

[MarkD]

- snip -
I don't have strong feelings about all of those cases and some of these I've been barely aware of. As someone that looks at the text above all else, I have some trouble with Bolling, but I certainly wouldn't overturn it. I really feel like I need to study that decision some more and read more about what people have said over the years. As from what I can tell from Griffin, I can't say I have any issues with Justice Black's opinion. I'm actually surprised that decision came down the way it did considering Justice Frankfurter's jurisprudence.

I eventually decided that I can settle on accepting Bolling as a correct decision but incorrect in terms of how it explained the constitutional inference. Bork, Ely, and Currie rejected Bolling because of your textualist instinct: the equal protection clause is explicitly directed at the states, and nothing in the Constitution says that the federal government has to treat everyone equally. At first, I agreed with Bork and Currie, but I saw an intriguing argument in the pages of National Review (for a few years in the 1990's, I subscribed to it). NR said that the reason the federal government has to treat everyone equally, without any clause explicitly saying so, is because of Section 5 of the Fourteenth, empowering Congress to enforce the provisions in the Fourteenth -- ALL provisions. If Congress -- and the Executive branch, of course -- are empowered to enforce the EPC, then there also has to be an implicit requirement that the federal government has to obey that rule of treating everyone equally. The federal government cannot be above the rule of law that it is empowered to enforce. Just like law enforcement officers cannot be above the laws they enforce, neither can the legislative or executive branches of the federal government be above what they enforce. My intuition is that the proposers and ratifiers of the Fourteenth would agree with that.

Griffin v. Illinois is a hard one for me to figure out whether to agree with or not. I haven't  read the opinion yet, I've just seen it summarized, and two of the scholars who I respect so much -- Bork and Currie -- both reject that decision as going too far. And I agree with you that it is surprising to see Frankfurter concur in that judgment.

Considering your view on those free speech cases, is it fair to assume you did not agree with Texas v. Johnson?

Also, I emphasized some of the decisions I'm curious about. I'm not totally surprised you disagree with the voting rights cases, but those all had Justice Black in the majority (Wesberry was written by Black himself). He wasn't exactly unrestrained with respect to the Equal Protection Clause (although Wesberry itself wasn't based on the EPC).

I'm more surprised by your views on the Establishment Clause cases. That line of cases is probably second only to free speech itself in its importance to me and how serious I take the issue.

I'm also surprised you didn't mention Trop v. Dulles.

Yes, I don't agree with Texas v. Johnson. Politically, I wouldn't agree to voting in favor of a law that bans flag-burning; as long as someone does not burn a flag under my butt, it's no skin of my nose. But burning flags and crucifixes are destructive actions, and the First Amendment doesn't say "Actions speak louder than words." It just says to protect words, because JUST words is a more civilized way of communicating than getting violent and destructive.

Yes, Black wrote the majority opinion in Wesberry, and that opinion is the worst, most unpersuasive one I've seen him write in all the time, so far, that I've been reading his opinions. That was clearly a case of: conclusion first; premises to follow, and it was one of Black's opinions that makes it clear to me why Bork says that Black's early career was so awful: full of too much liberal judicial activism. I've been suspicious, too, about Baker and Reynolds since I was a high school junior, and even after I eventually got around to reading them, I simply didn't see anything that persuaded me those were the correct interpretations of the Constitution. Frankfurter's dissent that "one man, one vote" was never the intended meaning of anything in the Constitution was much more persuasive to me. As much as I admire Hugo Black, he was wrong about "one man, one vote" in every way.

I have been suspicious about Engel and that whole "wall of separation between church and state" since I was a high school junior too, and even after I started reading more about how to interpret the Constitution, I didn't find anything legally persuasive about the school prayer rulings. And I know I sound like a far-right-wing reactionary rube when I say that I see nothing unconstitutional about a law that bans the teaching of Darwin's Theory of Evolution, but I intend to be consistent about my quite narrow interpretation of the Establishment of Religion Clause. I haven't even read one line of the Epperson opinion, I just know how to reason through to the kind of conclusion the Court obviously came to, and since it places primary emphasis on the Establishment Clause, and my interpretation of that clause is pretty narrow, my instinct is to reject it.

Don't know enough about Trop; maybe I'll take the time to read about it later. It's an immigration issue, and like you said, the Court often tended to be deferential to the authority of Congress and the Executive branch on immigration issues, so that conclusion does seem a bit surprising.

Ciao. Til next time.

[MarkD]

Looking back at some past comments in this thread, I've realized that there were a couple of times that Ferguson97 accused me of not answering his questions:

While this is a very long and detailed response, you haven't actually answered my question.

(I don't actually agree with Bork that there is no constitutional way to justify the conclusion in Skinner.)
~~~~

I probably would've gone with the Cruel and Unusual Punishment argument if I were a judge, but I still don't see why the reasoning that the majority used was bad. I'd like to know why you think it was a bad decision.

Not only is all of this very important -- the deformation of the Constitution by sly tricks -- regardless of whether the particular issue IS important, such as sterilization, or as unimportant as rarely enforced laws about contraceptives and sodomy, but I also got very, very angry at Justice Kennedy's opinion in Lawrence because it was chock full of flat-out LIES and displays of HYPOCRISY. Those lies and hypocrisy were very similar to what Kennedy had written in Romer v. Evans, a decision that also made me extremely angry, so when Romer served as a precedent that led to Lawrence, what I saw was Kennedy compounding more lies (in Lawrence) on top of lies he had already written (in Romer). However, in order for me to spell out all of the lies in those two opinions, I would have to make this whole post five or more times longer than it already is.

I doubt it will produce anything of substance, but sure. In your long response, you still haven't actually explained why you think Lawrence is a bad legal decision.

1) Skinner v. Oklahoma was wrongly explained by Justice Douglas because he argued that an unenumerated right was being violated, and he assumed, wrongly, that he and his colleagues are allowed to protect any unenumerated rights they feel like protecting because of one or two clauses in Section 1 of the Fourteenth Amendment. Given what he would later say in Griswold and the 1973 abortion cases, Douglas probably thought that the Ninth Amendment justified his being able to do that protecting. The Ninth doesn't actually justify that -- it was not intended to be applied to the states (just like nothing in the original Bill of Rights -- the first ten amendments -- was intended to control actions in the states). Federal courts must not do that to the states because it is not plausible that the ratifiers of the Fourteenth Amendment would have accepted they must respect not only enumerated rights (in the first eight amendments) but also unenumerated rights (which leaves the states with no clue as to what laws they cannot make and no forewarning whether their laws will be struck down).
Furthermore, Douglas was a raging hypocrite for inferring an unenerated right from the clauses in Section 1 of 14A, because, only one year before he wrote Skinner, Douglas had written Olsen v. Nebraska, in which two sentences near the very end went like this: "In final analysis, the only constitutional prohibitions or restraints which respondents have suggested for the invalidation of this legislation are those notions of public policy embedded in earlier decisions of this Court but which, as Mr. Justice Holmes long admonished, should not be read into the Constitution. Since they do not find expression in the Constitution, we cannot give them continuing vitality as standards by which the constitutionality of the economic and social programs of the states is to be determined." It took Douglas only one year to change his mind and decide that he can and will infer "notions of public policy" which "do not find expression in the Constitution" from 14A anyway. But Douglas did not say that he changed his mind, or acknowledge any inconsistency.

2) Waitaminute: I said that Justice Kennedy wrote a lot of "flat-out LIES and displays of HYPOCRISY" in both Romer and Lawrence, but you do not see that I said anything about what was legally wrong with the Lawrence opinion? LIES and HYPOCRISY are not the basis for being legally wrong? Then how about this: Lawrence was based on a concept of an unenumerated right, and it was based on "substantive due process." Like I was explaining above, there is no correct constitutional basis for inferring unenumerated rights from Section 1 of 14A, and "substantive due process" itself is a lie about what the due process clause means.  It is incorrect to infer that the 9A justifies federal courts from imposing on the states that the states cannot violate unenumerated rights. Again, I say that Lawrence contained a number of LIES, one of which was that the Due Process Clause justifies federal judges protecting any substantive rights -- enumerated or unenumerated -- and in Lawrence, Justice Kennedy repeated a certain statement he has previously written in Planned Parenthood v. Casey: "Our obligation is to define the liberty of all, not to mandate our own moral code." The first half of that sentence is absolutely, completely untrue; there is nothing in the Constitution that obligates any federal judges to define liberty -- not the Due Process Clauses, nor 9A (that amendment obligates federal judges to define -- expound upon -- the enumerated powers of the federal government, and to infer that the "rights retained by the people" are the opposite of enumerated powers). And because that statement is false, it makes the rest of the sentence infuriatingly hypocritical, because when Supreme Court Justices strike down state and local laws with an unenumerated right, "mandating [thei]r own moral code" is precisely what they are doing.
Another LIE in Lawrence is that, in the Romer opinion, there lay a precedent for why the Court would invalidate an anti-sodomy law. But in Romer, the Court invalidated an "anti-gay" law on the basis of the Rational Basis Test (supposedly, according to what Kennedy wrote). If that's a precedent for what to do with an anti-sodomy law, then Kennedy and his colleagues should have still applied the Rational Basis Test, an extremely lenient, deferential legal standard which requires courts to UPHOLD any laws that do pass the Test. But Justice Kennedy DID NOT EXPLAIN AT ALL whether he was applying the RB Test to the Texas sodomy law, (or any other Test that has ever been articulated before) and DID NOT EXPLAIN why the Texas law would fail the RB Test. A lie by omission is still a lie. (A state law that banned gay sodomy while allowing straight solody could be plausibly be defended on the ground that the state wants to prevent the spread of AIDS. That should have been sufficient under a true application of the standards articulated (by Kennedy himself) under the RB Test.) Furthermore, Kennedy even argued that Equal Protection jurisprudence would show why Bowers v. Hardwick was wrongly decided, but that means that Kennedy was flat-out ignoring what the Bowers opinion literally said about that issue: "Respondent [i.e., Mr. Hardwick] does not defend the judgment below [the 11th CCA ruled in Hardwick's favor] based on the Ninth Amendment, the Equal Protection Clause, or the Eighth Amendment." How could the Bowers decision be wrong about a possible violation of the EPC when that Court had not addressed that issue at all?

[MarkD]

Federal courts must not do that to the states because it is not plausible that the ratifiers of the Fourteenth Amendment would have accepted they must respect not only enumerated rights (in the first eight amendments) but also unenumerated rights (which leaves the states with no clue as to what laws they cannot make and no forewarning whether their laws will be struck down).

But we know that they did! There is ample evidence, both pre-and post-ratification, that the framers and ratifiers of the Fourteenth Amendment understood the Amendment to encompass unenumerated rights. The most obvious point is that the primary purpose of the Amendment was to constitutionalize the Civil Rights Act of 1866, which guaranteed the rights to “to make and enforce contracts, to sue, be parties, and give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property.” None of those rights are in the Bill of Rights, and yet the entire purpose of the Fourteenth Amendment was to give Congress the power to enforce these rights by legislation (indeed, Congress reenacted the law in 1870 pursuant to the Fourteenth Amendment to ensure it was constitutional).

By contrast, there is no evidence of any ratifier ever articulating an enumerated-rights-only theory. Which is striking, because doing so would have been an easy rebuttal to the kinds of charges that were levied against Republican proponents of the Amendment — that it would require equality in voting, jury service, marriage, and so on. If it only protected enumerated rights, you would think someone would defend it by pointing that out. And yet none of them ever did.

This thread is about the power of judicial review. This thread is about the power of the SCOTUS to declare dis, dat, and anudder ting, that state and local governments do, to be violations of the US Constitution. I was talking about THAT when I answered a couple of questions Ferguson97 asked me; F97 asked me what I thought was legally wrong with certain opinions handed down by the SCOTUS.
And how do you think you have refuted me? By showing all of us historical evidence that the proposers and ratifiers of the Fourteenth Amendment intended to empower CONGRESS to pass laws that protect unenumerated rights.
This thread is not about the powers of Congress; I did not ever mention anything in any of my posts about what powers the Fourteenth Amendment gave to Congress.
Do you think you have refuted me because the powers given to Congress in Section 5 of the Fourteenth are also identical powers that the SCOTUS can exercise to "enforce" the Fourteenth (Section 1, second sentence)?
Do you think the proposers and ratifiers of the Fourteenth were perfectly willing to accept that the SCOTUS -- in addition to Congress -- can make laws defining unenumerated rights and then ensuring that those rights will not be violated by the states?

If you think they believed that, then you are saying that the proposers and ratifiers of the Fourteenth Amendment did not contemplate that there is any difference between the power of the legislature and the power of the judiciary. And you think they believed that it is completely legitimate for the judiciary to make laws to contradict laws made by state and local legislative bodies -- to strike them down. They did not understand or respect the constitutional principle of the separation of powers. Were they that stupid?

My position, in this thread and in several other places throughout this forum, has been that Skinner, Griswold, Lawrence, and in Section 2 of the Court's opinion in Loving (which lead to Zablocki v. Redhail and Obegefell) were all wrongly explained legal opinions; that it is ILLEGITIMATE for the SCOTUS to invent "rights" rather than logically expounding on the rights that are in the Constitution; that the Ninth Amendment (like the entire Bill of Rights) was only intended to control the federal government and it has no pertinence in determining the constitutionality of state and local laws. If you are going to refute any of that, you need to come up with historical arguments that:
1) The proposers and ratifiers of both the Fifth and Fourteenth Amendments intended for the Due Process Clauses to have substantive meaning, not just procedural meaning.
2) In spite of Barron v. Baltimore, which was wrongly decided and wrongly explained, the Bill of Rights was intended to control the states as well as the federal governmment (the entire Bill of Rights, including the Ninth).
3) The proposers and ratifiers of the Fourteenth intended for the power of the federal judiciary to be the same as the power they were explicitly delegating to Congress. (Congress, the SCOTUS; what's the difference? As long as SOMEONE in the federal government is making the laws about what Section 1, the second sentence, covers, then we have no complaint who is doing it!)

And don't change the subject again!

[MarkD]

But unenumerated rights have to be DEFINED before they can be ENFORCED, and according to the system you claim the proposers and ratifiers all understood (implicitly), the federal judiciary can BOTH DEFINE as well as ENFORCE unenumerated rights. I say that is a USURPATION of the power to legislate, a violation of the principle of the separation of powers. At the Constitutional Convention of 1787, our Founding Fathers did not want the judges to legislate. Are you saying that both the proposers and the ratifiers wanted to stop distinguishing between legislative power and judicial power and disregard the principle of the separation of powers? The state legislatures that ratified the Fourteenth did not care which branch of the federal government was defining what they -- the legislatures -- cannot do, and superimposing a judicial oligarchy on a system of government that was supposed to be a democratic-republic?

This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power to invalidate laws on the ground that they exceed the constitutional power of Congress or violate some specific prohibition of the Constitution. See also Fletcher v. Peck, 6 Cranch 87. But the Constitutional Convention did, on at least two occasions, reject proposals which would have given the federal judiciary a part in recommending laws or in vetoing as bad or unwise the legislation passed by the Congress. Edmund Randolph of Virginia proposed that the President  ". . . and a convenient number of the National Judiciary ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final, and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ___ [original wording illegible] of the members of each branch."
1 The Records of the Federal Convention of 1787 (Farrand ed.1911) 21.
In support of a plan of this kind, James Wilson of Pennsylvania argued that:  ". . . It had been said that the Judges, as expositors of the Laws, would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature."
2 id. at 73.
Nathaniel Gorham of Massachusetts  "did not see the advantage of employing the Judges in this way. As Judges, they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures."
Ibid. Elbridge Gerry of Massachusetts likewise opposed the proposal for a council of revision:  ". . . He relied, for his part, on the Representatives of the people as the guardians of their Rights & interests. It [the proposal] was making the Expositors of the Laws the Legislators, which ought never to be done."
Id. at 75. And, at another point: "Mr. Gerry doubts whether the Judiciary ought to form a part of it [the proposed council of revision], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. . . . It was quite foreign from the nature of ye. office to make them judges of the policy of public measures."
1 Id. at 97-98. Madison supported the proposal on the ground that "a Check [on the legislature] is necessary." Id. at 108. John Dickinson of Delaware opposed it on the ground that "the Judges must interpret the Laws; they ought not to be legislators." Ibid. The proposal for a council of revision was defeated. The following proposal was also advanced:
"To assist the President in conducting the Public affairs, there shall be a Council of State composed of the following officers -- 1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union. . . ."
2 id. at 342. This proposal too was rejected.
(Dissenting opinion in Griswold v. Conn. by Justice Hugo Black, Footnote #6.)

Did the ratifying states understand they were surrendering their power to make laws to unelected federal judges? Can you prove to us that they intended to surrender that power?

I'll take Justice Black's interpretation of the second sentence of the Fourteenth Amendment over your interpretation any day.

[MarkD]

I was already aware of the fact that there are virtually no records left of the ratification debates in the state legislatures when the 14A was ratified, as well as the fact that Sen. Jacob Howard (R-MI) quoted from Corfield v. Coryell when he explained, on the floor of the Senate, what are all of the "privileges and immunities" which are protected by Section 1 of 14A. Indeed, Sen. Howard said, after he quoted that Court opinion, "To these privileges and immunities, whatever they may be -- for they are not and cannot be fully defined in their entire extent and precise nature -- ..."
I was aware of those facts because Prof. John Hart Ely discussed them in Chapter 2 of his famous book "Democracy and Distrust," published 1980. Ely's interpretation of 14A, about whether the SCOTUS should legislate from the bench in order to first define and then protect unenumerated rights, however, is very different from you.

I suppose that if I read what you suggest I read, I will see abundant proof of your argument that the members of Congress, and the public at large (and hence, the state legislators too), that there was widespread agreement in the bod politic in the Civil War Era that the time had come to obliterate federalism -- the precept that the federal government was supposed to have only a limited set of delegated powers, that the states were supposed to have only a limited set of powers they were prohibited from exercising, and that all remaining powers that did not meet either of those criteria were still possible to be exercised by the states -- as well as obliterate the separation of powers between the legislative branch and the judicial branch of the federal government? Even though you admitted, "There is an open question as to whether [the people who wrote the Fourteenth Amendment] believed future courts could add to this set [of unenumerated rights]," I'm supposed to get prepared for the fact that when I read 2 The Reconstruction Amendments: The Essential Documents (Kurt T. Lash ed., 2021) I will get blown away at how clear it is that the public at large, and state legislators, along with members of Congress, during 1866 to 1868, were making it clear that they wanted the SCOTUS to have the power to legislate from their bench what unenumerated (and uncertain and possibly unlimited) rights the citizens "have" (and possibly no one even said so)?

If it IS an "open question" about how powerful they intended for the federal courts to become, and you just said so, then There is no delegated judicial power to legislate on the topic of unenumerated rights!

[MarkD]

You keep talking about "safeguarding," and "protecting" unenumerated rights, including the fact that the proposers and ratifiers of 14A intended for the federal courts do "safeguard" and "protect" those rights. You make it sound as if the federal courts have only one step to perform -- safeguard/protect. You are avoiding discussing the fact that there has to be one crucial step before the courts can safeguard/protect. Rights have to be DEFINED first, before anyone in the executive or judicial branch of government can safeguard/protect. They have to find out, first, WHAT to safeguard/protect.

In both Planned Parenthood v. Casey and Lawrence v. Texas, the SCOTUS Justices (Anthony Kennedy in particular) said, "Our obligation is to define the liberty of all, not to mandate our own moral code." Given everything you have said so far, I have no doubt that you agree with the first part of the statement -- that Justices have an obligation to DEFINE the rights of the people. My argument is absolutely no, they do not have that obligation. Nothing anywhere in the US Constitution obligates the judicial branch of the federal gov't to DEFINE the rights of the people. (What 9A obligates the Justices to do is to expound on the powers of Congress.) Defining the rights of the people is a legislative function, not a judicial function. It's legislative because it's inherently subjective; legislatures are certainly allowed to make subjective choices. Judges are not supposed to do the same thing. One reason I HATE that quotation is not only do the judges not have that obligation, because of the fact that they don't, the rest of that sentence is infuriatingly hypocritical. "Mandat(ing) [their] own moral code" is exactly what they are doing.

Do you agree with the statement, from the pen of Anthony Kennedy (first when he was writing a plurality opinion, then later when he was writing a majority opinion), that Supreme Court Justices have an OBLIGATION to DEFINE the unenumerated rights of the people ("the liberty of all") that states cannot violate? You complain that I keep on harping on judicial legislation, but when you reply to me, you keep avoiding any discussion of that word "DEFINE," just going to the last step, the safeguarding/protecting part of the judicial function.

[MarkD]

I predict that this is going to be my last post on the subject Donerail and I have been debating for the last two weeks. I am through debating with someone whose views about judicial power are diametrically the opposite of my own.

Of course courts define the parameters of constitutional rights? Courts apply law to particular situations to resolve disputes; in doing so, they must necessarily define the extent and nature of the rights at issue, and interpret how they ought to apply to the given situation. ...

There is certainly no reason to think the Fourteenth Amendment is somehow worse than any other provision of the Constitution in its susceptibility to judicial definition. The First Amendment has spawned reams of case law producing all manner of multi-factor tests out of the phrase "the freedom of speech."

There are some provisions of the Constitution,  describing with some specificity the rights of the people, that are worded in absolute terms, but the courts recognize that, for utterly practical reasons, that those rights cannot really be absolute, that there have to be, in terms of how far freedom of speech and so on, extend, so judges make some exceptions to enumerated rights. But when judges make subjective decisions such as those, they are not usurping legislative power, they are exercising a power that Benjamin Cardozo called "interstitial legislating," a.k.a. "legislating between the gaps."

If you ask how [the judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge as a legislator gets it, from experience and study and reflection; in brief, from life itself. Here indeed is the point of work contact between the legislator's work and his. ... Each is indeed legislating within the limits of his competence. No doubt the limits of the judge are narrower. He legislates only between the gaps. [Cardozo, The Nature of the Judicial Process, published 1921, page 113.]

But according to you, it is just as legitimate for the Justices to define the parameters of enumerated rights as it is for them to define any and all of the unenuerated rights that were supposed to be "protected" from legislative (or executive or judicial) abridgment by the state governments. In the first case, judges are only legislating between the gaps; in the second case they are not legislating between any gaps, not within the  parameters enacted by any legislatures; they're just plain legislating -- outside of any legislatively created parameters.

I was not aware that anyone had a problem with this.

and

Again, you keep trying to make this about "judicial power to legislate." No one frames their arguments in these terms.

and

All that "judicial oligarchy" stuff is just, like, your opinion man.

Don't think you can speak on behalf of everyone who has any knowledge about the purpose of the Fourteenth Amendment, or that my views are lonely, individualistic, and idiosyncratic. Don't you dare speak that way. I have been studying this topic from numerous sources, not just from Justice Hugo Black. It also seems as if Oliver Wendell Holmes felt the same way as Black (he was just saying it decades before Black did). I have been influenced on this topic by Judge Robert Bork, and Professors John Hart Ely and David P. Currie. I have found reinforcement about this from Judge Learned Hand (especially from his essay, "How Far Is A Judge Free In Rendering A Decision").

It sounds like you have a problem with Marbury, ... rather than any problem with the Fourteenth Amendment specifically.

I actually don't know much about Marbury; what the case was about, or how the Court came to its conclusion. I haven't studied that case or opinion closely, or even barely at all.

It sounds like you have a problem ... with the concept of the common law, ...

Now here I DO have a BIG problem, especially if you are suggesting that courts exercising the power of judicial review -- supposedly "enforcing" the Constitution -- is in any way at all similar to the methods of legal reasoning used by courts of common law. I discussed the differences between common law, statutory law, and constitutional law in another thread on this board that I created:
https://talkelections.org/FORUM/index.php?topic=538230.msg8969183#msg8969183
I hope, for Pete's sake, that you don't think that the methods of legal reasoning in all kinds of law are the same. As Hugo Black said (in his dissent in Griswold), "I do not understand [this court] to have power to sit as a court of common law."

The Constitution is written in abstractions; ...

Wrong.
The vast majority of the Constitution is written in very concrete terms. As Prof. Ely wisely noted:

Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured. At one extreme ... the language is so clear that a conscious reference to purpose seems unnecessary. Other provisions .. may need reference to historical usage ... but once that "dictionary function" is served, the provision becomes relatively easy to apply. Other provisions, such as the First Amendment's prohibition of congressional laws "abridging the freedom of speech," seem to need more ... we somehow sense that a line of growth was intended, that the language was not intended to be restricted to its 1791 meaning. This realization would not faze Justice Black or most other interpretivists: the job of the person interpreting they provision ... is to identify the sorts of evils against which the provision was directed and to move against their contemporary counterparts. Obviously this will be difficult, but it remains interpretivism. ...
Still other provisions, such as the Eighth Amendment's prohibition of "cruel and unusual punishments," seem even more insistently to call for a reference beyond the document itself and a "framer's dictionary." ... The Cruel and Unusual Punishment Clause does invite the person interpreting it freelance to a degree, but the freelancing is bounded. The subject is punishments, not the entire range of government action, and ... only those punishments that are in some way serious ("cruel") and susceptible to sporadic imposition ("unusual") are to be disallowed.
The Eighth Amendment does not mark the end of the spectrum, however. The Fourteenth Amendment -- and ... the Ninth Amendment is similar -- contains provisions that are difficult to read responsibly as anything other than quite broad invitations to import into the constitutional decision process considerations that will not be found in the language of the amendment or the debates that led up to it. (From Ely's Democracy and Distrust, published 1980, pp 13-14. On pages 22-32 and page 41 he discusses the Privileges  or Immunities Clause and the Equal Protection Clause -- including a lengthy quotation from Sen. Jacob Howard -- and on pages 34-40 he discusses the Ninth Amendment. Ely placed the P or I clause, the EP clause, and 9A, at the FAR END OF THE SPECTRUM, in terms of how clearly worded they were; those three were "extremely open-textured," hence, to use your word, "abstract.")
I strongly recommend Ely's famous book, especially Chapter 3 ("Discovering Fundamental Values"), because that chapter demonstrates strong disagreement with you about whether the federal courts should accept those three "invitations" -- of potentially very broad interpretation -- to legislate from the bench. For judges to accept those invitations to legislate from the bench -- in terms of defining unenumerated rights -- presented an "immense and obvious problem [of this form of judicial review] with the basic democratic theory of our government."

Incidentally, this is another difference between your political views and the original understanding of the Fourteenth Amendment; Jacob Howard explained that the "privileges and immunities" that are explicitly protected in the Fourteenth Amendment "are not and cannot be fully defined in their extent and precise nature." Seeking precise definitions and parameters, he recognized, was not Congress's role.

Proof, please? What did Sen. Howard say about the role of either the legislative branch and/or the judicial branch?

You are advocating for a very different system, a civil law system where the legislature is solely responsible for specifying in detail the rights and responsibilities of citizens.

YES!!! When it comes to substantive rights -- like those "protected" (and defined) by the SCOTUS in cases such as Allgeyer v. Louisiana, Lochner v. New York, Coppage v. Kansas, Adkins v. Children's Hospital, Ribnik v. McBride, Skinner v. Oklahoma, Griswold v. Connecticut, Roe v. Wade, (yes, I know it's been overturned, but the doctrine that the judiciary can continue to define and then protect unenumerated substantive rights has still not been eliminated from 14A jurisprudence) Moore v. East Cleveland, Zablocki v. Redhail, Planned Parenthood v. Casey, (ditto) Lawrence v. Texas, and Obergefell v. Hodges I am definitely working to end "Government by Judiciary" (the title of a book by Raoul Berger (who argued for a much narrower interpretation of 14A than even Black, Bork, and I)).