It’s not nitpicking. Statements like “the legislature alone should make law” are just refusing to recognize that throughout Anglo-American legal history the role of judges in making law has been extremely important.
Minor v. Happersatt (1875), unless I’m misunderstanding your question. That’s the court case that said the 14th amendment doesn’t give women the right to vote. From the summary of the case in the decision:
The court decided:
I’m just asking that you take what I say in context.
edit: I just re-read. I was not decrying judicial review or trying to spout some right-wing ‘legislate from the bench’ BS, but it’s possible I misunderstood what you originally said.
I don’t know. Whether or not they did doesn’t really have any bearing on my argument, which has nothing to do with the actual content or application of the 14th.
Well, then, seems the question WAS raised, and answered definitively in the negative. The Fourteenth Amendment did NOT confer the right to vote upon women.
Oh.
Then would you mind restating your argument? If it has nothing to do with any actual content or application of the 14th, then I am afraid I have misunderstood it.
Obviously, hence the 19th. But the state of 14th amendment jurisprudence has changed pretty substantially since 1875, and I think it’s quite probable that, were this a case of first impression now rather than 1875, the court would have come to a different result.
True. But it’s my contention that since 1875 we have surrendered to the courts substantial law-making authority, and that this is a perfect example. We now rely on the courts to fix general problems with the law; we want the Constitution to serve as a general moral guide. “Unconstitutional” has become synonymous in the public mind with “wrong,” “unwise,” and “unjust,” and we seem to want our federal judges to be the ones to correct wrong, unwise, and unjust laws instead of our legislators.
That’s a perfectly workable system, but it’s not as consistent with our notions of self-government as it could or should be.
A follow-on thought about how this thinking evolves to truly change the original meanings… In 1964’s Reynolds v Sims, the Warren Court famously found that “…legislators represent people, not trees or acres…” so the Equal Protection Clause requires that seats in both houses of a state’s legislature have to be apportioned on a population basis.
That would have been a real surprise to the proponents of the Fourteenth Amendment, some of whom were US Senators, a house decidely NOT apportioned on a population basis.
We can always hope Scalia chokes to death on a cannoli before the end of Obama’s second term.
And another one:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
What does that mean?
How do you ignore the then-understood meaning of “suits at common law?”
Or if you don’t, how do you justify any new spin on what this amendment requires?
I think that clause is actually very important for constitutional interpretation. It shows that the framers, when they chose to be specific, knew how to be specific. Which leads me to the belief that where they chose to use more general language, they intended it to be applied in a different fashion.
So if we look at the Fourteenth in light of the Fifteenth (which was very close in time, though not exactly the same), the fact that the Fifteenth specifically states on grounds of race, while equal protection in the Fourteenth isn’t, suggests to me that the drafters did not intend the protections of the Fourteenth to be applied only on racial grounds.
Except that the framers of the Seventh Amendment were not the same people as the framers of the Fourteenth.
The framers of all the amendments are different, unless any were adopted unanimously.
I wasn’t making the argument that they were. My argument is that given that there are very specific elements of the Bill of Rights, we can presume that where the Bill of Rights is less specific, it is so for a reason.
And when we look at the 14th and 15th in conjunction, we can see that those framers were capable of being specific when they chose to be - as in the 15th, and less specific when they chose to be, as in the Equal Protection clause.
I think you mean “simultaneously”, not “unanimously”. And it’s my understanding that the first ten amendments were indeed adopted at more or less the same time.
Did you use that same analysis with the Second Amendment, by chance?
I don’t need to. The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further.
I think he means unanimously. Given that otherwise they are the product of compromises.
My argument is that the existence of the 19th amendment, by itself, doesn’t prove anything, one way or the other, about the 14th amendment. There seems to be plenty of evidence that the 14th was never intended to give equal rights to women. But the existence of the 19th is not, in and of itself, part of that evidence.