Conservative "Originalist"/"Literalist" views of the Constistution'sAmendments eleven and above.

RE: Conservative “Originalist”/“Literalist” views of the Constistution’sAmendments eleven and above.
What is the "Originalist "/“Literalist” view of Amendments eleven and above?
Is it:
The Constitution provides an Amendment process for changes and all amendments must be adhered to and followed just as much as the original body of the Constitution.
We adhere to and follow only the very original Constitution (including the first ten Amendments) but are free to ignore any of the Amendments Eleven and above we don’t like.

I know of no one who believes that the later amendments to the Constitution have any different legal effect from the original Constitution or the Bill of Rights.

No mainstream scholar, lawyer, or judge, of any political persuasion, thinks that the later amendments can be ignored. There are a few cranks who do, but nobody takes them seriously.

An originalist would interpret, say, the 14th amendment in terms of what the framers of the 14th amendment intended (or at least, what they think they intended), and a textualist would interpret it according to the plain text of the amendment (or at least, what they think the plain text is).

Nitpick: people who subscribe to original intent would interpret the 14th amendment in terms of what they believe the framers of the 14th amendment intended it to mean. People who subscribe to original meaning would interpret the 14th amendment in terms of what they believe the voters who enacted the 14th amendment understood it to mean (or, in other words, what a reasonable person living at the time would have understood it to mean). I believe the latter view is the more common form of originalism.

When the plain text is ambiguous, do textualists follow through honestly and demand that all rulings must be ambiguous?

A textualist will look at the plain text and apply the plain meaning of the text. If that reading does not solve the problem and an ambiguity remains, even a textualist will then look at the history and traditions of how the founding generation treated the text to attempt to discern a meaning.

The phrases “due process of law” and “equal protection” are perfect examples of ambiguous text. If I get a parking ticket, can I insist on a trial by jury with appointed counsel? The text doesn’t answer that question. Do ten year olds have the right to purchase alcohol? “Equal protection” doesn’t answer that question.

So, no, textualists are not textualists, they are originalists who apply originalism only as it suits them, and come up with their own readings the rest of the time.

Because the plain meaning is of course ten-year-olds have the right to purchase alcohol, and the plain meaning is that not only can you request a jury for your parking ticket, you need one. Unless you go for the TRUE and real plain meaning, namely that parking tickets do not exist in law and there is nothing to discuss.

I’ve read this three times now and still don’t understand it. Are you saying that the 14th Amendment gives ten year olds the right to purchase alcohol? Please help me understand.

I read David to be asserting that honest textualists must be strict constructionists, and criticizing an apparent inconsistency in that most of them are not. But it seems unfair to suggest that textualists must adhere to principles which we have fabricated for them. Textualism, on my understanding of the term, does not require looking at the text devoid of context, nor should it.

The trouble with the assertion that DavidwithanR is making is that “equal protection under the law” has no unambiguous meaning. That is, you cannot point to those words and say, “ten-year-olds must be allowed to do what 21-year-olds are allowed to do because that’s the only way they are getting equal protection.” Equal protection is not the same as “equal treatment.”

What, exactly, “equal protection under the law” means MUST in some way be discussed in relation to the intent of the amendment. But, as the Slaughterhouse Cases showed, that gets real tricky, real fast (or at least, it did with regard to the privileges and immunities clause).

Right. I thought everyone agreed that “equal protection” did not mean complete and absolute equal treatment before the law no matter what. It clearly cannot mean that. Are DUI laws unconstitutional because they affect alcoholics as a class more than they do teetotalers?

Further, where is a trial by jury for parking tickets demanded by the phrase “due process of law.” The phrase, whether you are a textualist, originalist, or living constitution subscriber, requires further analysis to determine what “process” is “due” in a given situation.

Also, I’m not sure that even on an absolutist level one would say that a ten year old not being able to purchase alcohol is unequal treatment.

Take two people: Jack age 21, and Jim age 10.

As of today, Jack can purchase alcohol and Jim cannot. However, when Jack was ten, he was unable to purchase alcohol. An in eleven years, when Jim is twenty-one, he will be able to legally purchase alcohol.

So we have two individuals, Jack and Jim, who are both prohibited from purchasing alcohol prior to age twenty-one, but permitted once they reach that age. Where is the denial of equal protection?

Not a good road to go down, because that means the age can never be changed, without creating an “unequal” treatment. Say we lower it to 18. That means anyone who is enabled to buy it at 18 (say Jim in 8 years) is being treated better than Jack, who had to wait to 21.

Sort of like how I was able to legally drink before my older sister, because I happened to be visiting Canada at a time when I was 18 and she was still only 20.

But if we get that pedantic about it no law can ever be changed. Say we raise the speed limit from 70 to 75 tomorrow. A driver that just turned 16 will be able to drive for a longer period of time at a higher speed limit than a 40 year old.

My point is that “equal protection” is ambiguous, it cannot be absolute, and that requires some form of interpretation, even from a textualist. That’s why when some say that SSM is “clearly” in the Constitution because equal protection, I say that it is not at all that clear. The words must be analyzed.

Further, these arguments are not even internally consistent. When pressed on it, they generally say something like “If you are allowed to marry the person you love, then a gay person should be allowed to marry the person he or she loves.” That’s fine as a policy argument, but there are so many permutations of that. Why do I have to marry a person? Why do I have to love them? Why do I have to marry only one person?

You may say that the latter three questions are fanciful, but if we are really saying that absolutely, everyone has “equal protection” of the laws, then it shouldn’t matter how outlandish my preferences are. The point is nobody goes that far with the equal protection argument and it needs a principled limitation.

I don’t see how that follows. Jack isn’t being treated any differently, nor denied the equal protection of any law, that anyone else who used to be 18 and couldn’t drink.

I don’t think it is ambiguous to say that equal protection of the law means the law now, not what it used to be. That would imply that no law could ever be changed, including the Constitution, which is the supreme law of the land. And, since a process is defined by which the Constitution can be amended, under the textualist theory of looking at what the Constitution says to determine what it means, it cannot mean that no law can ever be changed, because it is quite clear that the Constitution can be changed.


Is a black person who can’t go to the school near their house not being denied equal protection of the law, because they’re getting the same rights as any other black person?

If equal protection applies to when someone was born, then it’s the same argument as equal protection based on race. If equal protection doesn’t apply to when someone was born, then why not? It doesn’t say that it doesn’t, in the plain text.

Yes, of course he is. When he is granted equal protection, then he has equal protection. Which is what the Constitution says. IOW, textualism.

I already covered this. If this were true, then the law could never be changed. The Constitution is the supreme law of the land, and the Constitution lays out the procedure by which the Constitution can be changed. Therefore, by reading the plain text of the Constitution, we can see that your conclusion is invalid. QED.