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

[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.

[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?

[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.

[politicallefty]

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.

I hope you read it all, because I read every word you posted. We may not agree on everything, but I do respect your views and your process.

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.

[SNIP]

That's a fair response. As for your choices, I would agree with every case you mentioned except when you listed the so-called "conservative/restrained" cases. I agree with some, but definitely disagree with others. I am curious to know how you reconcile your originalist thought with decisions such as Mapp (although that was based on an earlier decision, Weeks v United States), Gideon, and Miranda. I'm frightened by modern originalism that seeks to undo those decisions. (Personally, I would argue that Sixth Amendment rights are positive rights, ordering the government to act in a specified manner and with respect to the rights of the accused.)

Shapiro v. Thompson has to be one of the strangest breakdowns I've seen of the Warren Court. Warren and Black in a dissent together against a six Justice majority?

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.

This probably doesn't surprise you, but I find a lot to like in that quote you shared about the Warren Court. I feel like one of the most important things the Warren Court did was give meaning to the words. If the government can wantonly violate rights with limited remedies for criminal defendants, the words basically become suggested guidelines without meaning or effect.

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.

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.

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[/i]
Cruel and Unusual Punishment case: Robinson v. California
Establishment of Religion cases: Engel v. Vitale, Abington School District v. Schempp, Epperson v. Arkansas[/i]
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.

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.

[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.

[politicallefty]

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.

Those are all good points and I can't say I disagree. I never said textualism was my sole philosophy. On the other hand, I certainly don't think the Constitution intended for logical absurdities. In terms of the decision as to current jurisprudence, I think it is entrenched among the so-called "super-precedents". In a sense, your thinking is similar to the supposition that a sitting President cannot pardon himself/herself, correct?

I'm actually rather disturbed that Justice Thomas wrote a concurring opinion this past week essentially calling for Bolling to be overturned.

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.

I think Justice Black's opinion speaks for itself. A case like that denies some of the most basic and fundamental aspects of Due Process and by extension, Equal Protection.

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.

I do believe we'll have to agree to disagree as to Texas v. Johnson. I consider myself an absolutist as to the First Amendment. I would strike down libel and obscenity laws in a heartbeat. I will admit that conduct is a bit different, but I do believe it is still protected under the First Amendment. While I strongly disagree with the idea that freedom of speech covers only political speech, I do believe that political speech is the most important right under its protection. But, as I said I agreed to disagree, I digress.

I will get back to you about Wesberry and the other voting rights cases in our private chat.

Engel and its progeny is probably at the top of my list in terms of decisions where I am an absolute hardliner. There is probably no opinion I've ever read in which I more wholeheartedly agree than Justice Black's majority opinion in Engel v. Vitale.

As for Trop, I only asked about that to get an idea of your views on the Eighth Amendment.

[I’m not Stu]

These decisions will be overturned in future cases.

[SnowLabrador]

No.

[Senator-elect Spark]

Very unlikely that they do in fact be overturned.

[Person Man]

Probably not but if Jackson, Sotomayor, or Kagan get replaced with a Republican before Thomas, Roberts, Alito, Barret, Kavanaugh, or Gorsuch gets replaced by a Democrat, I would say "probably".

[Aurelius]

Chances that in 2030 these cases still stand:
Obergefell: 85%
Lawrence: 95%
Griswold: 65%?
Brown, Loving, etc: 1000%, lmao

[Kahane's Grave Is A Gender-Neutral Bathroom]

I think pretty much every Supreme Court decision up to and including Dred Scott v. Sandford is in theoretical danger of being overturned by this court, however, I find any chance that is not 100% to overturn to be a decent chance, so I voted yes in the poll.

lol

[I’m not Stu]

Chances that in 2030 these cases still stand:
Obergefell: 85%
Lawrence: 95%
Griswold: 65%?
Brown, Loving, etc: 1000%, lmao

Really?

[Aurelius2]

Chances that in 2030 these cases still stand:
Obergefell: 85%
Lawrence: 95%
Griswold: 65%?
Brown, Loving, etc: 1000%, lmao

Really?

Yeah, I still stand by these estimates.

[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?

[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.

[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!

[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.

[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.

[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.

[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!

[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.

[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.

[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.

[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)).