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

[Donerail]

Is it possible Kavanaugh won’t vote to overturn them? He didn’t join Thomas and Alito in the Kim Davis case.

kavanaugh is not going to vote to overturn either of these cases

[Donerail]

lol

[Donerail]

(Continuing)
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)?

"Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." is the original, as published in the U.S. reports (383 U.S. at 669). Shame on those who reproduced it without Justice Douglas's original typography, and thank you for providing yet another example of how he rocked so hard.

[Donerail]

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?

Yes, I do believe he meant that. Douglas had a broad conception of what the Equal Protection Clause required, but I don't see any reason to think his beliefs were not sincere. It's plausible that Douglas even saw himself as returning to the original meaning of the Equal Protection Clause before it was neutered by a reactionary Supreme Court.

[Donerail]

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.

[Donerail]

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?

Yes, that is the reason the Fourteenth Amendment is in the Constitution. It is not something they were "willing to accept" — it is something that they actively wanted to happen. The clause empowers both Congress and the federal courts to safeguard the rights it guarantees, so that the federal judiciary would be empowered to "assert those rights by solemn judgment," in Bingham's words.

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?

The individuals who drafted the Fourteenth Amendment were well aware of the different powers of the branches, and sought to bring both to bear to enforce the Amendment. That the federal courts would strike down the unconstitutional laws of states like South Carolina was a feature for them, not a bug.

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.

Nobody seriously thinks the Due Process clauses should have substantive meaning; that is an unfortunate work-around that the Supreme Court has embarked upon after its erroneous decision in the Slaughter-House Cases. Erasing the Privileges or Immunities Clause has unfortunately led to an expansive interpretation of the Due Process Clause. Fortunately, these interpretations tend to be consistent with the original meaning of Section 1, because the Privileges or Immunities Clause does have substantive meaning, and was always intended to do so.

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).

No, I don't have to explain anything about what the Bill of Rights was intended to do or whether Barron was wrongly decided at the time (it probably wasn't). This conversation is about the Fourteenth Amendment and what it was intended to do. Part of the reason the Fourteenth Amendment was necessary was, as Bingham explained, "the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied" by Barron. Section 1 abrogated Barron.

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!)

Yes, that is how the Constitution works — it may be enforced in the federal courts when someone violates it (this is Marbury). When the Constitution says something like "The Congress shall have Power To lay and collect Taxes," that is a grant of power to Congress alone. When it says something like "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," that is a command to the states that may be enforced by the federal courts.

[Donerail]

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?

The people who wrote the Fourteenth Amendment very clearly believed that people possessed a set of rights that are not spelled out explicitly in the Constitution — these are, at a minimum, the fundamental rights protected by the Civil Rights Act of 1866 and those defined in Corfield v. Coryell, with the possible exception of suffrage. There is an open question as to whether they believed future courts could add to this set or if it was fixed at the time of ratification, but they certainly believed that the purpose of the Fourteenth Amendment was to make it unconstitutional for states to abridge those rights.

All that "judicial oligarchy" stuff is just, like, your opinion man. States are forbidden from abridging the privileges or immunities of citizens. We know that "privileges or immunities of citizens" is a category that includes some unenumerated rights. Of course courts are free to safeguard citizens who seek to exercise their rights as citizens.

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?

No one can prove or disprove anything about what "the ratifying states" understood; apart from Pennsylvania, there are no records of state debates on the ratification of the Fourteenth Amendment. To the extent we can glean what the state debates were about (from contemporary newspaper accounts, etc), they were much more concerned with Sections 2 and 3. None of them seem to have raised your particular concern about judges.

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

Again, there is simply too much pre- and post-ratification evidence that unenumerated rights were meant to be included for Justice Black's view to be viable today. Since it seems you are not super familiar with the history here, a good starting point is 2 The Reconstruction Amendments: The Essential Documents (Kurt T. Lash ed., 2021). Some familiarity with the primary source texts would be helpful.

[Donerail]

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 -- ..."

Good, so you are already aware that the 14th Amendment protects a set of unenumerated rights. Glad we cleared that up.

[run-on sentence about federalism] 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)?

Yes, it is very obvious when you actually read the historical documents, and not just Hugo Black's thoughts about it, that everyone wanted the federal courts to have the power to protect the unenumerated rights of citizens — as you are already aware, this included the Corfield rights, as well as the rights protected by the 1866 CRA. There is really no debate about this; this was the purpose of the amendment and people said this all the time.

The open question is whether the set of unenumerated rights should be fixed, as equal to the unenumerated rights that people enjoyed at the time of ratification, or whether new rights might emerge that were not understood at the time of ratification to belong to the existing set of unenumerated rights. Whether the 14th actually protects some set of unenumerated rights is not an open question — it clearly does.

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 judicial power to legislate on the topic of unenumerated rights!

Again, you keep trying to make this about "judicial power to legislate." No one frames their arguments in these terms. The judiciary has the power to safeguard the constitutional rights of citizens, some of which are unenumerated.

[Donerail]

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.

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

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.

It sounds like you have a problem with Marbury, or perhaps with the concept of the common law, rather than any problem with the Fourteenth Amendment specifically. 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." The Constitution is written in abstractions; it is the responsibility of the judiciary to give those abstractions meaning, to "say what the law is."

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.

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.

Yes, that is how courts work in our country. 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. That is not the system we have.

[Donerail]

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."

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.

That is a distinction without a difference — in both cases judges are making what you admit are subjective decisions about the extent of fundamental rights. When judges develop the complex, nuanced and context-dependent legal regime governing free speech, they are doing the exact same sort of legislating you are critical of in the context of unenumerated rights.

And the legislature has, in fact, enacted the Fourteenth Amendment, which protects the "privileges or immunities of citizens of the United States." Courts are "legislating between the gaps" when they make subjective decisions about how those privileges should be protected.

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").

I am telling you your views are idiosyncratic because they are — that is a descriptive claim, not a normative one. The things you believe to be true do not line up with what contemporary academic historians know about the Fourteenth Amendment.

All of those authors wrote about separation of powers, but I am not sure why Oliver Wendell Holmes would be any help in studying the original meaning of the Fourteenth Amendment. Ditto Currie and Ely. Bork is at least interesting as one of the proto-originalists, but advancements in historical scholarship have made most of his objections to the Fourteenth Amendment irrelevant.

If you are interested in studying the actual history of the Fourteenth Amendment, well-researched and detailed historical articles by scholars like Randy Barnett and Christopher Green are readily available for free on the internet. But don't complain when I say your views are idiosyncratic or outside the mainstream if you haven't read what the mainstream is saying!

Long section that's not about the original meaning of the Fourteenth Amendment omitted; I don't really care what John Hart Ely thought about this. Lot of attempts to make this about generic separation of powers principles — boring! I am interesting in discovering what the Constitution was intended to mean, not reasoning backward from what twentieth-century thinkers thought a proper judicial role was. As one poster previously observed:

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.

If the Fourteenth Amendment was intended, in its true original meaning, to protect unenumerated rights, no amount of Ely or Holmes can change that — we are all just going to have to live with that. Originalism means living with that history instead of trying to force it into your construction of what the ideal balance between the branches is.

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?

That line is from Jacob Howard's speech on the floor of the Senate — Cong. Glob, 39th Cong., 1st Sess. 2765 (1866) — defining the rights protected by the Privileges or Immunities Clause.

Howard stated that the privileges or immunities of U.S. citizens includes two categories of what he called "fundamental guarantees." The first category includes those rights protected by Article IV, Section 2, as defined in part by Corfield v. Coryell; Howard then listed several "fundamental" rights protected by Article IV, Section 2, some of which are enumerated and some of which are not. He then explained: “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—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution.” He listed the enumerated rights, then concluded by stating that the Fourteenth Amendment is meant to protect this "privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution."

The Amendment was necessary, in Howard's words, to "restrain the power of the States and compel them at all times to respect these fundamental guarantees." The function of the amendment, in other words, is to "restrain the power of the States" to abridge the unenumerated rights it protects — to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, to travel between states, and so on.

Howard said little about the power of the legislative and judicial branches, but the fundamental concept of the judicial power is that citizens have the right to invoke the protection of the judicial power against the invasion of the rights. There is no evidence of anyone believing that this language served only to empower Congress, and post-ratification legislation (including the passage of the Civil Rights Act guaranteeing the right to access courts, and establishing courts via the Freedmen's Bureau in which people could seek relief) strongly suggests a belief that these fundamental rights were enforceable in court.