Do you support MarkD's proposed amendment?

[Sol]

The famous question he asks in all his AMAs.

I have drafted a proposal for a constitutional amendment and would like your reaction, as you've probably seen me ask several others. Would you support or oppose this?

Below is a summary of the proposal, not the full draft. My proposal has a Preamble and four sections. The Preamble begins with a two-paragraph-long quotation from Justice James Iredell in the 1798 case of Calder v. Bull, then the Preamble concludes: "The purpose of this article of the US Constitution is to give three previous amendments greater clarity and precision. The United States government and the respective states should have clear and precise guidelines about their legislative powers. This article will clarify two amendments that are binding on the United States, and it replaces a part of the Fourteenth Amendment, which is binding on the states."
Section 1: The Due Process Clause of the Fifth Amendment shall henceforth be understood to only mean procedural due process, not substantive due process. In other words, government must not punish anyone without affording that person fair procedures, but the courts are not to second-guess the merits of the laws being enforced. But the federal government does have to treat everyone equally, the same way the states have to according to Section 3(b) of my proposal
Section 2: The Ninth Amendment is only binding on the federal government, not on the states. The purpose of the Ninth was and is parallel to the Tenth Amendment.
Section 3: The second sentence of Section 1 of the Fourteenth Amendment is hereby repealed and that sentence will be replaced with a new set of rules designed to be narrower and clearer.
3(a) The states have to obey enumerated rights in the first eight amendments, but the only unenumerated right that states have to obey is the right to interstate travel. The Supreme Court has twice said "Our obligation is to define the liberty of all, ..." but my proposal tells the Court, and the rest of the country, that statement was completely incorrect. The federal judiciary has neither an obligation nor a prerogative to define liberty. The judiciary's obligation is to expound on the rights that are in the Constitution, not to expand them. The federal judiciary is instructed to stop declaring that states have to obey "fundamental rights" and "basic civil rights" that are not in the Constitution (again, with the one exception being the right to interstate travel). Therefore the Court's decisions about contraceptives, sodomy, and any other libertarian ideas not enumerated in the Bill of Rights, no matter how controversial or uncontroversial, will all be overturned.
3(b) The states are not allowed to discriminate against anyone on the basis of race, national origin, sex, gender identity, sexual orientation, or disability status (and because of Section 1 above, the same will go for the federal government). Other than those six kinds of discrimination, all other kinds of discrimination are allowed. The rulings made by federal courts in 2013-2015 about same-sex marriage will be preserved. There will be no such thing as a "fundamental right to marry," but bans on interracial marriage and same-sex marriage will still be unconstitutional.
3(c) The states still have to respect voting rights as established in nearly all precedents the Supreme Court has laid down on that subject so far. In order to prevent gerrymandering of congressional or state legislative districts, redistricting must be done by independent redistricting commissions.
Section 4: Bush v. Gore was the worst decision the Supreme Court has ever rendered, and nothing like it must ever occur again.

(Thanks to an intriguing conversation I had a while ago with user Big Abraham, I thought of another way to accomplish the same goal with a different kind of structure. I could say, in Section 3, that only the Equal Protection Clause of Section 1 of the 14th is repealed; I could leave the Privileges or Immunities Clause and the Due Process Clause as they are. I would insert the DP Clause of the 14th into Section 1 where I discussed giving the first DP Clause a meaning that is more limited than the way the Court actually interprets the two clauses. I could say, in Section 3(a), that the Privileges or Immunities Clause has always been interpreted by the Court correctly thus far, but that the meaning of P/I should never be expanded. The net result of those changes would still give me the exact same goal as I was aiming for in my first draft. Going with either draft for this proposal is, for me, six of one, half dozen of another.)

Here is a way I have thought of explaining the potential political appeal of my proposal. I carefully designed my proposal to be a compromise between liberal and conservative points of view. Some specific elements will be appealing to conservatives but very much unappealing to liberals, while other elements will be appealing to liberals but very much unappealing to conservatives. Both sides will be giving up something important that they don't want to give up, but will get something else important in return.

Specific elements appealing to conservatives but repulsive to liberals.
  – Keep the McDonald v. City of Chicago precedent
  – Prevent Roe v. Wade and/or Planned Parenthood v. Casey from being reinstated
  – Overturn Plyler v. Doe
 – Prevent the federal courts from expanding the meaning of the Equal Protection Clause in any way other than what is enumerated in this proposal

Specific elements appealing to liberals but repulsive to conservatives.
  - Disallow government to discriminate on the basis on sex, in other words, the same principle as the ERA (this shall not mean, however, any effective revival of the right to abortion)
  – Disallow government to discriminate on the basis of sexual orientation, and with this rule, preserve Obergefell v. Hodges
  – Disallow government to discriminate on the basis of gender identity (applying the Intermediate Scrutiny standard, which will also be applied for sex and sexual orientation, above)
  – Condemn the Bush v. Gore decision

Agreeable to both conservatives and liberals.
  – Continue imposing the Bill of Rights on the states
  – Continue protecting the equal right of all citizens to vote
  – Continue prohibiting government discrimination based on race and national origin
  – Start prohibiting government discrimination based on disability status (using J. P. Stevens' balancing test as the guiding method of legal analysis)
 – Require redistricting to be done by independent commissions

If you have any questions about the details in my proposal, I'd be happy to answer them.
So, are you interested in supporting this?

[SteveRogers]

The famous question he asks in all his AMAs.

I have drafted a proposal for a constitutional amendment and would like your reaction, as you've probably seen me ask several others. Would you support or oppose this?

Below is a summary of the proposal, not the full draft. My proposal has a Preamble and four sections. The Preamble begins with a two-paragraph-long quotation from Justice James Iredell in the 1798 case of Calder v. Bull, then the Preamble concludes: "The purpose of this article of the US Constitution is to give three previous amendments greater clarity and precision. The United States government and the respective states should have clear and precise guidelines about their legislative powers. This article will clarify two amendments that are binding on the United States, and it replaces a part of the Fourteenth Amendment, which is binding on the states."
Section 1: The Due Process Clause of the Fifth Amendment shall henceforth be understood to only mean procedural due process, not substantive due process. In other words, government must not punish anyone without affording that person fair procedures, but the courts are not to second-guess the merits of the laws being enforced. But the federal government does have to treat everyone equally, the same way the states have to according to Section 3(b) of my proposal
Section 2: The Ninth Amendment is only binding on the federal government, not on the states. The purpose of the Ninth was and is parallel to the Tenth Amendment.
Section 3: The second sentence of Section 1 of the Fourteenth Amendment is hereby repealed and that sentence will be replaced with a new set of rules designed to be narrower and clearer.
3(a) The states have to obey enumerated rights in the first eight amendments, but the only unenumerated right that states have to obey is the right to interstate travel. The Supreme Court has twice said "Our obligation is to define the liberty of all, ..." but my proposal tells the Court, and the rest of the country, that statement was completely incorrect. The federal judiciary has neither an obligation nor a prerogative to define liberty. The judiciary's obligation is to expound on the rights that are in the Constitution, not to expand them. The federal judiciary is instructed to stop declaring that states have to obey "fundamental rights" and "basic civil rights" that are not in the Constitution (again, with the one exception being the right to interstate travel). Therefore the Court's decisions about contraceptives, sodomy, and any other libertarian ideas not enumerated in the Bill of Rights, no matter how controversial or uncontroversial, will all be overturned.
3(b) The states are not allowed to discriminate against anyone on the basis of race, national origin, sex, gender identity, sexual orientation, or disability status (and because of Section 1 above, the same will go for the federal government). Other than those six kinds of discrimination, all other kinds of discrimination are allowed. The rulings made by federal courts in 2013-2015 about same-sex marriage will be preserved. There will be no such thing as a "fundamental right to marry," but bans on interracial marriage and same-sex marriage will still be unconstitutional.
3(c) The states still have to respect voting rights as established in nearly all precedents the Supreme Court has laid down on that subject so far. In order to prevent gerrymandering of congressional or state legislative districts, redistricting must be done by independent redistricting commissions.
Section 4: Bush v. Gore was the worst decision the Supreme Court has ever rendered, and nothing like it must ever occur again.

(Thanks to an intriguing conversation I had a while ago with user Big Abraham, I thought of another way to accomplish the same goal with a different kind of structure. I could say, in Section 3, that only the Equal Protection Clause of Section 1 of the 14th is repealed; I could leave the Privileges or Immunities Clause and the Due Process Clause as they are. I would insert the DP Clause of the 14th into Section 1 where I discussed giving the first DP Clause a meaning that is more limited than the way the Court actually interprets the two clauses. I could say, in Section 3(a), that the Privileges or Immunities Clause has always been interpreted by the Court correctly thus far, but that the meaning of P/I should never be expanded. The net result of those changes would still give me the exact same goal as I was aiming for in my first draft. Going with either draft for this proposal is, for me, six of one, half dozen of another.)

Here is a way I have thought of explaining the potential political appeal of my proposal. I carefully designed my proposal to be a compromise between liberal and conservative points of view. Some specific elements will be appealing to conservatives but very much unappealing to liberals, while other elements will be appealing to liberals but very much unappealing to conservatives. Both sides will be giving up something important that they don't want to give up, but will get something else important in return.

Specific elements appealing to conservatives but repulsive to liberals.
  – Keep the McDonald v. City of Chicago precedent
  – Prevent Roe v. Wade and/or Planned Parenthood v. Casey from being reinstated
  – Overturn Plyler v. Doe
 – Prevent the federal courts from expanding the meaning of the Equal Protection Clause in any way other than what is enumerated in this proposal

Specific elements appealing to liberals but repulsive to conservatives.
  - Disallow government to discriminate on the basis on sex, in other words, the same principle as the ERA (this shall not mean, however, any effective revival of the right to abortion)
  – Disallow government to discriminate on the basis of sexual orientation, and with this rule, preserve Obergefell v. Hodges
  – Disallow government to discriminate on the basis of gender identity (applying the Intermediate Scrutiny standard, which will also be applied for sex and sexual orientation, above)
  – Condemn the Bush v. Gore decision

Agreeable to both conservatives and liberals.
  – Continue imposing the Bill of Rights on the states
  – Continue protecting the equal right of all citizens to vote
  – Continue prohibiting government discrimination based on race and national origin
  – Start prohibiting government discrimination based on disability status (using J. P. Stevens' balancing test as the guiding method of legal analysis)
 – Require redistricting to be done by independent commissions

If you have any questions about the details in my proposal, I'd be happy to answer them.
So, are you interested in supporting this?

I do not support permanently enshrining a two paragraph screed from the author’s personal favorite Supreme Court justice into the Constitution, no.

[Donerail]

I think it would be very funny to have the Constitution say "nothing like Bush v Gore will ever happen again"

[H.E. VOLODYMYR ZELENKSYY]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

[MarkD]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)

[politicallefty]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)

There are not many that will say it (in part because it's just a thought experiment at this point), but I absolutely think Barron v. Baltimore was wrongly decided. The First Amendment clearly only involved the federal government with its reference to the power of Congress. The Seventh may also be considered as only applying to the federal government. That is all though.

[Donerail]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)

There are not many that will say it (in part because it's just a thought experiment at this point), but I absolutely think Barron v. Baltimore was wrongly decided. The First Amendment clearly only involved the federal government with its reference to the power of Congress. The Seventh may also be considered as only applying to the federal government. That is all though.

You're certainly not the only one to make that argument — many Reconstruction-era Republicans (even before the passage of the Fourteenth Amendment) believed that much of the Bill of Rights applied to the states as well as the federal government, Barron v. Baltimore notwithstanding.

For example, in New York's ratification debates on the Thirteenth Amendment, Alexander Bailey (a Republican state senator, and an attorney) made the following remarks:

But it is scarcely possible to add an amendment to the Constitution without interfering with the rights, or restraining the powers theretofore exercised by the States, or by taking directly from the States some of their privileges and powers and transferring them to the general government. This may be illustrated by examining the amendment proposed and adopted in 1789.

Article two of these amendments declares that the right to keep and bear arms shall not be infringed. Prior to this, the States had the entire control of this matter, and here that control is taken away. And it may be well to inquire why, if the people may amend the Constitution so as to secure to all the right to use the arms furnished by the gunsmith, they may not so amend it as to secure to all the right to use the arms given to them by the Almighty?

Again, articles four, five and six prescribe the limits within which search warrants may issue—require the presentment of a Grand Jury in order to hold a person to answer a capital or otherwise infamous crime—protect criminals from being witnesses against themselves, prevent private property from being taken for public use, without just compensation—require that criminals shall have the assistance of counsel—make a trial by jury necessary in all cases at common law, and preventing any fact tried by jury from being re-examined in any Court than according to the rules of the common-law.

These are broad sweeping provisions retaining the powers of the States in many important particulars, and over all of which, they had entire jurisdiction and control prior to the adoption of these amendments. Here then are many important instances in which an amendment of the Constitution has taken away from the States powers they previously possessed, and otherwise interfere with what are here called their “reserved rights.” And if it be true that there is no power to take away or interfere with their “rights”—then the amendments of 1789 are void.

Notably, Bingham himself believed for a time that the Bill of Rights was binding on the states. It was only after he read Barron v. Baltimore in February of 1866 that he changed his mind and began advocating for an amendment to clarify the law, and many others persisted in rejecting the idea that the Bill of Rights only applied to the federal government. Robert Hale of New York, for instance, raised some opposition to a draft of the Fourteenth Amendment because he believed the federal government already had the power to enforce the Bill of Rights against the states and saw the proposal as unnecessary.

[MarkD]

I think it’d be a little crazy for the constitution to say “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and then later on “oh actually it shall”.

Was it "a little crazy" that the SCOTUS said that the entire Bill of Rights was only binding on the federal government ; that all federal courts were indifferent to whether or not state and local governments were violating freedom of speech, conducting unreasonable searches and seizures, imposing cruel and unusual punishments, etc ? (Keep in mind that every state constitution had a Bill of Rights too, and the way to rectify violations of rights by state and local governments was to address those issues in state courts.)

And Mr. Jones still has no answer to the question I posed to him.
It's important to discuss this because if you understand the interpretation that the SCOTUS gave to the Bill of Rights in Barron v. Baltimore, you'll understand as well that the Ninth Amendment was not imposed on the states. And all I am proposing with the amendment I drafted is to keep the Ninth Amendment's original interpretation as the status quo. If you can't understand that, then you're the one who's crazy.

There are not many that will say it (in part because it's just a thought experiment at this point), but I absolutely think Barron v. Baltimore was wrongly decided. The First Amendment clearly only involved the federal government with its reference to the power of Congress. The Seventh may also be considered as only applying to the federal government. That is all though.

The First Amendment does indeed begin with the word "Congress," and the Tenth Amendment is a clear expression of the idea that the federal government has limited powers. The First and the Tenth are the bookends, and all of the rest of the Bill of Rights is sandwiched in between the bookends. Why is so hard to understand that all of the Bill of Rights were only intended to limit the federal government as well? Just because the words don't literally say so? Look at the first ten amendments as if they are a row of books on a shelf. The first book makes one point about the federal government's limited powers, as does the tenth book. There's nothing wrong with assuming that all eight of the other books were also intended to have the same limited meaning. And the historical context of WHY the Bill of Rights was proposed also supports that interpretation.

Notably, Bingham himself believed for a time that the Bill of Rights was binding on the states. It was only after he read Barron v. Baltimore in February of 1866 that he changed his mind and began advocating for an amendment to clarify the law, and many others persisted in rejecting the idea that the Bill of Rights only applied to the federal government. Robert Hale of New York, for instance, raised some opposition to a draft of the Fourteenth Amendment because he believed the federal government already had the power to enforce the Bill of Rights against the states and saw the proposal as unnecessary.

Hurray for Rep. John Bingham!! He changed his mind once he saw a persuasive legal argument that contradicted his original theory about the meaning of the Bill of Rights. He realized that he had erred, and that the original meaning of the Bill of Rights was precisely as Chief Justice John Marshall had explained it in the Barron opinion. He respected the original understanding of a crucial part of the Constitution once he saw it correctly explained, and that's remarkable! He was, in a sense, an Originalist. It's just too bad that he did not do a good job of writing an Equal Protection Clause that was particularly clear (instead of overbroad and impossible-to-take-literally).

[politicallefty]

The First Amendment does indeed begin with the word "Congress," and the Tenth Amendment is a clear expression of the idea that the federal government has limited powers. The First and the Tenth are the bookends, and all of the rest of the Bill of Rights is sandwiched in between the bookends. Why is so hard to understand that all of the Bill of Rights were only intended to limit the federal government as well? Just because the words don't literally say so? Look at the first ten amendments as if they are a row of books on a shelf. The first book makes one point about the federal government's limited powers, as does the tenth book. There's nothing wrong with assuming that all eight of the other books were also intended to have the same limited meaning. And the historical context of WHY the Bill of Rights was proposed also supports that interpretation.

I see no reason to presume that to be the case. Each amendment of the Bill of Rights was adopted individually. Two of them were not part of the Bill of Rights at all in the end. It took over 200 years for one of them to be ratified. Another remains pending before the states, very likely never to be adopted. If you read the Bill of Rights as one volume, I'd say you have to read the Reconstruction Amendments similarly. I don't see many originalists willing to do that as it would grant Congress immense powers over issues regarding race.

[MarkD]

Egads, you're proving my point! Sorry, but I can't stay and chat this morning for very long. Gotta go to work. But yes, two, three, or more amendments adopted at virtually the same time should indeed be looked upon as if there is a common theme running through them: the Bill of Rights was, collectively, adopted to ensure that the federal government would not have the power to violate the rights of the people, and the Civil War Amendments were, collectively, adopted to ensure that the slaves would be freed and would be guaranteed equal citizenship.

[Adam_Trask]

This makes me think a lot about an exercise a professor of mine told me about that allegedly, Karl Llewlleyn, did with his law students. The purpose of the exercise was to try to get students to think about the differences between common law and civil law systems. He'd send one group out to write a statute to cover some crime. And then, he'd run through a dozen or so hypothetical cases with the other group about the same kind of problematic social behavior. He'd then, pull the groups together and pose each group a bunch of "edge cases" and ask how their statute or hypothetical "case-law" would deal with the case. The statute writers almost always found themselves with a more difficult task. They were prone to bigger disagreements because they didn't have any flexibility in their statute and found that they didn't always get the results they'd imagined if they were faithful to the letter of the law. Whereas the "common law" system was much more adept to handling the edge cases. It was easier for their group to find consensus through compromise.

There's a lot wrong with this, imo. But the biggest thing is thinking that we can solve our constitutional ills by doing away with the most pregnant and meaningful parts of our Constitution. The truth is, any new standard will eventually, produce new ambiguities and nuances. The court cannot avoid the "political thicket" (to borrow a phrase from Justice Frankfurter). It's been in that thicket from the day it was constituted. We may not like how it's used it's political power, but it's pointless (and frankly ill-advised) to try trim the brush. It will grow back, and it will grow back thicker and more mangled.

The doctrines of substantive due process and equal protection aren't perfect. But they remain important because they're flexible and open to change. For example, the kinds of discrimination MarkD wants to explicitly ban (with the notable open-season rule for any other kind of discrimination) aren't going to be the only kinds of relevant, harmful, and malicious forms of discrimination forever. And, there are certainly a number of ways to circumvent the bans (and move into open season land) by just changing the mechanism of discrimination. This should be troubling because it effectively gives the constitution a shelf-life and significantly reduces it's ability to adapt to new social problems and changed circumstances.

I think there's very little worth in this kind of utopian thinking. There is much more value in a common law approach because of it's ability to change and adapt to changing times. This value would be effectively destroyed by a monomaniacal obsession with clarity and consistency. In the end, the law will never be as clear as anyone would like because there are always unimagined ambiguities waiting in the wings, ready to surprise even the deafest drafter.

We have to remember that with something like a constitution, we must always keep our feet on the ground. We have to be realists. Courts are deciding real cases and controversies, and they need flexibility to do that well. A perfect system for today will be a broken, unusable system tomorrow. But a imperfect, functional system today may be a still imperfect – but better – system tomorrow.

[Adam_Trask]

And Mr. Jones still has no answer to the question I posed to him.
It's important to discuss this because if you understand the interpretation that the SCOTUS gave to the Bill of Rights in Barron v. Baltimore, you'll understand as well that the Ninth Amendment was not imposed on the states. And all I am proposing with the amendment I drafted is to keep the Ninth Amendment's original interpretation as the status quo. If you can't understand that, then you're the one who's crazy.


The First Amendment does indeed begin with the word "Congress," and the Tenth Amendment is a clear expression of the idea that the federal government has limited powers. The First and the Tenth are the bookends, and all of the rest of the Bill of Rights is sandwiched in between the bookends. Why is so hard to understand that all of the Bill of Rights were only intended to limit the federal government as well? Just because the words don't literally say so? Look at the first ten amendments as if they are a row of books on a shelf. The first book makes one point about the federal government's limited powers, as does the tenth book. There's nothing wrong with assuming that all eight of the other books were also intended to have the same limited meaning. And the historical context of WHY the Bill of Rights was proposed also supports that interpretation.


Hurray for Rep. John Bingham!! He changed his mind once he saw a persuasive legal argument that contradicted his original theory about the meaning of the Bill of Rights. He realized that he had erred, and that the original meaning of the Bill of Rights was precisely as Chief Justice John Marshall had explained it in the Barron opinion. He respected the original understanding of a crucial part of the Constitution once he saw it correctly explained, and that's remarkable! He was, in a sense, an Originalist. It's just too bad that he did not do a good job of writing an Equal Protection Clause that was particularly clear (instead of overbroad and impossible-to-take-literally).

I'd also like to point out something very interesting about your reasoning here. In paragraph two, you advocate (what I think is) an esoteric reading of the Bill of Rights. You invent the metaphor of a "book" with 10 volumes. Using that metaphor, you note that  the 1st and 10th seem to be concerned with the Federal Governments powers. From that observation, you conclude that the only interpretation of the rest of the Bill of Rights (2-9) that can stand is an interpretation that they are only binding on the Federal Government (citing Barron v. Baltimore).

But then, in the next paragraph, you denigrate the EPC because it's "impossible-to-take-literally." If we were to take amendments 2-9 literally, your interpretation above could not stand!

I'm not trying to disagree with your theory against the incorporation of the bill of rights (I do disagree, but that's another issue altogether). But, I do want to point out that your own interpretation, above, of amendments 2-9 is also not literal. You need an interpretive gloss. And it seems ultimately to me that you're reaching for the "rule of mischief" (i.e., you're looking to the intent of the founders by asking the question: what mischief were these provisions trying to remedy?)

That's all to say that all legal reasoning requires us to take a step away from the literal text. We use all kinds of arguments (historical arguments and arguments about legislative intent, i.e., originalism, structural arguments, textual arguments, arguments based on "natural law", etc.). Even in a utopia, you need these kinds of argument.

I typically look to a different kind of hermeneutic than you do. I like background common-law doctrines liked the doctrine of changed circumstances or the "golden-rule" (i.e., void b/c contrary to public policy). Even noted originalists like Justice Scalia made arguments about "constitutional culture" to get results he wanted that we're aligned with the literal text of the Constitution (See Lucas v. South Carolina Costal Council: "In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the "implied limitation" that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture.")

[MarkD]

Adam, I am not trying to achieve perfection or Utopianism. I am merely trying to narrow the power of judicial review and to push federal courts towards exercising more judicial restraint. This has nothing to do with assuming that legislatures are perfect. It has everything to do with passionately believing that the SCOTUS is every bit as IMperfect as are the legislatures in this country. I think my proposal will make constitutional law BETTER, and I certainly am not stupid enough to think it will end up being perfect. I drafted this proposal because I have high anxiety about how the SCOTUS is using the due process and equal protection clauses of the Fourteenth Amendment. (And apparently some Justices think the Ninth Amendment justifies interpreting the Fourteenth the way they do.) Here's some high anxiety I read about a long time ago:

"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. ... [W]e ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe ... the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass." [Justice Oliver Wendell Holmes, dissenting opinion, Baldwin v. Missouri (1930).]

(I learned about that quote the first time I read Justice Black's dissenting opinion in Griswold v. Conn. (1965). I learned a hell of lot about the importance of judicial restraint when I read Black's whole opinion. I highly recommend that opinion for important insights about how to interpret the Constitution. And, BTW, states have powers, not rights.)

And, FYI, the explanation of my proposal that you see in the OP on this thread is just a summary of my proposal. I explicitly say so every time I post it. You haven't seen all of the details in my full draft. I explicitly included in my proposal a way of addressing concerns such as you had:

For example, the kinds of discrimination MarkD wants to explicitly ban (with the notable open-season rule for any other kind of discrimination) aren't going to be the only kinds of relevant, harmful, and malicious forms of discrimination forever. And, there are certainly a number of ways to circumvent the bans (and move into open season land) by just changing the mechanism of discrimination. This should be troubling because it effectively gives the constitution a shelf-life and significantly reduces it's ability to adapt to new social problems and changed circumstances.

My draft proposal says that there should be no use of the rational basis test except when it would be necessary to discover that a legislature is trying to pursue a constitutionally unacceptable goal. I explicitly refer to the precedent of Guinn v. United States as an example of the SCOTUS doing that well.

And here's an AHA:

The doctrines of substantive due process and equal protection aren't perfect.

BroTHER, can you say that again!!
1) "Substantive due process" is a big, fat, stinking, corrupt LIE about the meaning of the DPC. It's a cancer on constitutional law, and it needs to be lopped off and preserved in a formaldehyde jar, so future generations can still see it, be aware that it existed, but so that no judges will ever use it ever again. As Holmes said in that Baldwin dissent, substantive due process is an "extended and artificial signification" of the words of the DPC.
2) The EPC has been a major source of sloppy work by the SCOTUS, as I have said before in this board: (In the post below, scroll down the first six of my paragraphs, and start with the paragraph that begins, "I have multiple reasons ....."
https://talkelections.org/FORUM/index.php?topic=546021.msg9066265#msg9066265

Lastly (for now), I refuse to accept a theory that common law methods of legal reasoning should be emulated to determine the constitutional permissibility of laws passed by legislatures or voters. I discussed the difference between common law and constitutional law in a thread I created earlier this year for this board:
https://talkelections.org/FORUM/index.php?topic=538230.msg8969183#msg8969183

[Aurelius2]

I refuse to read that wall of text. I'm happy for you. Or sorry that happened. Oppose.

[Adam_Trask]

I am merely trying to narrow the power of judicial review and to push federal courts towards exercising more judicial restraint. ...  I think my proposal will make constitutional law BETTER, and I certainly am not stupid enough to think it will end up being perfect. I drafted this proposal because I have high anxiety about how the SCOTUS is using the due process and equal protection clauses of the Fourteenth Amendment. (And apparently some Justices think the Ninth Amendment justifies interpreting the Fourteenth the way they do.) Here's some high anxiety I read about a long time ago:

If you treated my argument fairly, you'd see that I'm mostly skeptical that attempting to narrow and clarify the 14th amendment will actually limit the power of the federal judiciary. The truth is, the justices will find any excuse whatsoever to achieve the ends they want. Take for example a recent case that does not involve substantive due process or the equal protection clause – 303 Creative. There is nothing about the text of the 1st amendment that should invalidate non-discrimination laws as applied to market actors. But the S.C. can do tons of mental gymnastics to reach the result, namely by finding that website creation is "expressive." This is very, very far from anything intended by the text of the first amendment (which I'd argue, has very little to do with commercial activity of this kind – see background common law principles on common carriers and places of business open to the public generally – and see more specifically Blackstone on Inns and Taverns).

I don't like the 303 Creative decision. I think it's wrong. But, that never going to stop the justices from making their decision, in this case, effectively limiting the power of many state's non-discrimination laws. Thus, I don't think "narrowing and clarify" the language of the 1st amendment will stop them from doing any of this non-sense. The problem isn't with the language of the constitution, it's the Justice's utter lack of regard for principle in seeking a desired end.

In truth, I think your proposal will do one thing – help conservative justices further decimate the advances of the Warren Court. I do think it's telling that you're inspiration is the dissent in Griswold. But, taking a step back into history, I'm going to argue that various uses of substantive due process are different and principled in a way the current court is not.

First, let's start with the fact that our founding documents demonstrate a reverence for the rights of individuals – with particular references for rights relating to self-definition and individual autonomy (as opposed to rights as market place actors). What is line from the Deceleration of Independence that every school child knows: that we possess unalienable rights to "life, liberty, and the pursuit of happiness" (notice that the Continental Congress actually replaced Locke's right to property with a "right to happiness). From there, the Constitution through the 9th amendment establishes a zone of certain unalienable personal rights (I'd argue that could be summarized with the Deceleration's words above).

Moving from here to Griswold :It's hard to argue against the fact that Griswold was a major step-forward for women's rights in this country. Furthermore, Griswold is consistent with this country's "constitutional culture" (see above) that values individual freedom and autonomy – especially over major life decisions. Yes, legislatures – like Connecticut's – passed laws to ban contraception and that is part of the democratic process. But, the Court exists precisely because democratic majorities sometimes infringe the rights of individuals. In this arena, the Court does check the other branches of government against majoritarian abuses.

Moving back to the economic substantive due process which Mr. Holmes was so worried about :Yes, I'll readily admit that substantive due process was used to invalidate quite a lot of New Deal proposals – and while I think they were wrong, I do think their methodology wasn't totally flawed. Up to that point, Americans had a tradition of free trade and New Deal proposals were a bit alien to Americans understanding of the proper role of the Federal Government in regulating the economy. But the truth is, ultimately, this economically libertarian part of American political culture was throughly transformed by the Great Depression and the New Deal. Ultimately, it's telling that as Roosevelt continued to win elections, the Courts views on these matters changed as well – reflecting the major change in American political/social values wrought by that period in our history.

Moving to the present day : Ultimately, it's only the most radical in our country that want to be rid of substantive due process entirely. Note that the Dobbs opinion expressly did not intend to upset other areas of substantive due process: such as the right to direct your child's education, the right to make certain medical decisions (albeit, abortion not included because, in the opinion of the court, regulating abortion requires balancing the child's right to life and the mother's right to liberty – however fraught I think that reasoning is, it doesn't totally dismiss the value of our "right to liberty."). And I think this makes sense because literally all (but the most radical) Americans would be very, very upset if the other rights protected by substantive due process were thrown in the trash.

P.S. on Constitutional interpretation :Furthermore, man, the fact that you want to abandon common-law methods of constitutional interpretation and invent – idk what – other methods for constitutional interpretation shows demonstrates a lack of understanding of how our constitutional system works (both historically and currently). First of all, almost all of the drafters of the U.S. Constitution were common law lawyers who imagined – and declared – that the constitution would be interpreted by background common law principles (see The Original Understanding of Original Intent, H. Jefferson Powell, Harvard Law Review, V. 98, N.5). Second, originalism, a judicial philosophy you seem to subscribe to is quite literally the same as the rule of mischief.

[It’s so Joever]

“Do you support MarkD’s pr-“

Me: “No”

[MarkD]

Adam, let's just agree to disagree and stop talking about this. Your judicial philosophy is so drastically different from mine and is so completely unacceptable to me just like mine is unacceptable to you that there is no room for trying to find any common ground. I know you won't support my proposal.
Out of all of the times that I have asked TE users whether they would support my proposal, I have gotten a lot more positive responses than the number of people who have said "yes" in the poll on this thread.