Federal bankruptcy court blasts Defense of Marriage Act

[Really_Not_All_That_Bright]

@psychonaut

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.

@villa

I think he means unanimously. Given that otherwise they are the product of compromises.

Yup. If delegate X didn’t vote for a particular amendment, he can hardly be called a “framer” of it. So every constitutional amendment has a different set of framers, though obviously there’s some overlap.

The point is that if we can’t construe one in light of the others, we can’t construe any in light of the others.

[Bricker]

@Miller

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.

I don’t agree. We can infer that it’s much easier to obtain the right to vote (or any right) via court decision rather than by constitutional amendment. The courts have discovered hundreds of rights and byproducts of rights lurking about in the Constitution, but it’s only been amended 27 times.

[ElvisL1ves]

@villa

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.

@villa

The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further.

One of these things is not like the other …

[villa]

@ElvisL1ves

One of these things is not like the other …

No really they aren’t. They both come from the bedrock principle of statutory construction. If the meaning of the words are plain, one does not look beyond the meaning of the words. In places the meaning of the constitution is absolutely plain. Just because one does not like the result mandated by that plain language does not mean one should deliberately seek to create an ambiguity in the language that isn’t there.

[Strassia]

@Bricker

I hear ya.

But… the thing is that we might consider this on a sliding scale. There is no way to write a bright-line rule for judges to follow, I grant, without eviscerating Marbury. But we can select judges that have fidelity to the general concept of judicial intervention. A judge who sees his role as assisting social change through the law will not, as a general rule, respect the idea that the legislature alone should make law.

I remember during Sotomayor’s confirmation hearing a speech of hers came out in which she said something about the courts making new law, and then hastily modified it, adding a very conscious wink-wink to her words along the lines of “of course judges don’t make law…”

I always felt she got a bum rap for that comment. What she said was that policy was made at the appellate level. She was saying that it was the duty of the appellate to define the limits of how the lower courts should apply laws. When the legislature leaves ambiguity in the law, or when laws conflict, the appellate has to decide, with the SCOTUS being the final decider.

[ElvisL1ves]

@villa

No really they aren’t. They both come from the bedrock principle of statutory construction. If the meaning of the words are plain, one does not look beyond the meaning of the words. In places the meaning of the constitution is absolutely plain. Just because one does not like the result mandated by that plain language does not mean one should deliberately seek to create an ambiguity in the language that isn’t there.

Absolutely. But to reach the second conclusion of yours I quoted, you have to find a way to pretend the “plain language” of the first half of the Second Amendment isn’t actually there. As you say yourself, the framers were specific when they thought they had to be, and in that single sentence, they were pretty damn specific about its reason.

Not to mention that the principle you claim in that first sentence is hardly “bedrock”.

[Punoqllads]

@ElvisL1ves

Absolutely. But to reach the second conclusion of yours I quoted, you have to find a way to pretend the “plain language” of the first half of the Second Amendment isn’t actually there. As you say yourself, the framers were specific when they thought they had to be, and in that single sentence, they were pretty damn specific about its reason.

The “well-regulated” in “well-regulated militia” means “in good working order”. The first half of the second amendment can be reasonably construed to be clarifying what is considered “arms”, namely, the type of weaponry that would be used by a citizens’ militia.

[ElvisL1ves]

Exactly. But “The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further” is thereby not a reasonable construction (construal? Whatevs).

[Strassia]

@ElvisL1ves

Exactly. But “The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further” is thereby not a reasonable construction (construal? Whatevs).

Sure it is: Because reason A exists, B must not be infringed.

A (the need for a well regulated militia) is a justification, but it has no effect on the actual requirement. Now you could argue that if A is no longer true we should repeal, but that doesn’t change the plain language reading of the amendment.

[ElvisL1ves]

The framers stated a specific, finite reason for the amendment. Per villa’s analysis, that they had a reason for doing so and that that reason must be taken into account in an honest reading, that results in a specific, finite range of that right in alignment with that reason.

How he reaches the opposite conclusion, and so emphatically that he even uses it as an example, is for him to explain.