# House passes "repeal and replace" **URL:** \ **Category:** Great Debates\ **Created:** [May 4, 2017, 8:53pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871 "2017-05-04T20:53:38Z")\ **Posts on this page:** 20\ **Page:** 45
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 12, 2017, 5:43pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/881 "2017-05-12T17:43:40Z")
> [@Chisquirrel](#): > > Can you explain that for me? I saw that come up in my minimal research, but I don’t really understand the significance of it. > Also, as the the originalist reading of the 14th, I can’t give a damn what the intent was. The words are there. Use the words. Everything else is subjective. The 14th was originally intended to incorporate all of the Bill of Rights against the states, IMO. Privileges or immunities as described would be all of the rights of citizenship, specifically the bill of rights, among others. Shortly after the 14th was effective, slaughterhouse ruled that the PorI clause was limited only to the rights that stemmed from federal citizenship, not state citizenship. Those federal rights were limited to the right to travel between states and to use navigable rivers, essentially meaningless. As a result, incorporating the bill of rights against the states has taken a very long path over many many decades. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 12, 2017, 8:52pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/882 "2017-05-12T20:52:24Z")
> [@Bone](#): > > I mourn the privileges or immunities clause of the 14th amendment. I hold out hope that Slaughterhouse can one day be overturned, but I don’t see a realistic avenue for that. I tend to agree that the PorI clause is a much cleaner way of doing than by substantive due process. In your view, how would the result of recent decisions have changed? Roe, Obergefell, Lawrence? What would judicial analysis look like under the PorI clause as you interpret it? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 12, 2017, 9:09pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/883 "2017-05-12T21:09:52Z")
> [@UltraVires](#): > > I tend to agree that the PorI clause is a much cleaner way of doing than by substantive due process. In your view, how would the result of recent decisions have changed? Roe, Obergefell, Lawrence? What would judicial analysis look like under the PorI clause as you interpret it? Hard to say with such a long history between then and now. I would say that I think Roe, Obergfell, and Lawrence all reached my favored result, but with over 100 years of case law built up I think the path to get there may have been different. If I wore a black robe for a living, I would say that the right to do with your body what you want, the right to marry who you want, and the right to fornicate with whomever you want is more fundamental than the right to vote, to worship, and maybe even to speak. Being forbidden to vote is a small burden compared to being forbidden to marry my wife. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 18, 2017, 7:33pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/884 "2017-06-18T19:33:35Z")
> [@Bone](#): > > Hard to say with such a long history between then and now. I would say that I think Roe, Obergfell, and Lawrence all reached my favored result, but with over 100 years of case law built up I think the path to get there may have been different. > > If I wore a black robe for a living, I would say that the right to do with your body what you want, the right to marry who you want, and the right to fornicate with whomever you want is more fundamental than the right to vote, to worship, and maybe even to speak. Being forbidden to vote is a small burden compared to being forbidden to marry my wife. I know it’s been a month, but I have taken a hiatus. My response would be to ask you why you believe that a “right to fornicate” for example, is such a basic privilege or immunity of citizenship that it should be removed from majority rule. The argument has undeniable appeal, and I personally agree with it. However, the traditions and history of our country show that fornication is unquestionably not a right retained by people under substantive due process, the 9th amendment, or elsewhere. As such, it can be permitted or restricted by a state legislature. I believe the same way with regards to same sex marriage. As it has never been something that was a fundamental right in our history and traditions, but indeed a new right or freedom that many say we _should_ have, it is therefore per se not protected by the Constitution. It is easy to see where we can find a right to free speech or gun possession: it is right there in the plain text. When we talk about things like the right of parents to care, custody and control of minor children, its harder to see, but we see it in the history and traditions of our country. When we get to things like abortion, same sex marriage, or sodomy, it is much harder to see. Yes, I agree that sodomy laws are ridiculous given society’s attitude towards it. But where does a judge get some right to such conduct? Like Scalia and Roberts, I don’t fear the result of Lawrence and Obergefell, but I fear the slippery slope when we are simply and baldly allowing judges to insert their own policy preferences. Or am I wrong? You have said that you believe these rights are fundamental, more so than free speech. Upon what do you base that belief? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [June 19, 2017, 12:29am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/885 "2017-06-19T00:29:53Z")
> [@UltraVires](#): > > . . . I believe the same way with regards to same sex marriage. As it has never been something that was a fundamental right in our history and traditions, but indeed a new right or freedom that many say we _should_ have, it is therefore per se not protected by the Constitution. . . . Equal treatment is a right protected by the constitution. A law that says, “You can get married, but that guy over there cannot” violates equal protection, and runs afoul of the highest law of the land. There is no argument that can be made against “gay marriage” that does not equally apply to interracial marriage. It isn’t a “new right,” it’s equal access to a right that some people had and other people didn’t. Now it’s equal, the way the constitution promises. ---
**Author:** ![Ambivalid](https://avatars.discourse-cdn.com/v4/letter/a/a5b964/32.png) [@Ambivalid](https://boards.straightdope.com/u/Ambivalid)\ **Post date:** [June 19, 2017, 12:42am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/886 "2017-06-19T00:42:55Z")
> [@Trinopus](#): > > Equal treatment is a right protected by the constitution. A law that says, “You can get married, but that guy over there cannot” violates equal protection, and runs afoul of the highest law of the land. > > There is no argument that can be made against “gay marriage” that does not equally apply to interracial marriage. It isn’t a “new right,” it’s equal access to a right that some people had and other people didn’t. Now it’s equal, the way the constitution promises. Exactly. It’s not a “new right”, it’s a better, more modern understanding of what constitutes pre-existing rights. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 3:12am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/887 "2017-06-19T03:12:51Z")
> [@Trinopus](#): > > Equal treatment is a right protected by the constitution. A law that says, “You can get married, but that guy over there cannot” violates equal protection, and runs afoul of the highest law of the land. > > There is no argument that can be made against “gay marriage” that does not equally apply to interracial marriage. It isn’t a “new right,” it’s equal access to a right that some people had and other people didn’t. Now it’s equal, the way the constitution promises. You cannot simply repeat “equal treatment,” as the animating principle, because you don’t favor it. Or do you? May six year olds marry? No? Then there has to be some further principle beyond simply “equal treatment.” ---
**Author:** ![Chimera](https://avatars.discourse-cdn.com/v4/letter/c/8e8cbc/32.png) [@Chimera](https://boards.straightdope.com/u/Chimera)\ **Post date:** [June 19, 2017, 3:22am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/888 "2017-06-19T03:22:17Z")
That seems a little disingenuous when few people would support child marriages. Only consenting adults can marry, and every adult should have that right regardless of someone else’s religious objections. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 3:55am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/889 "2017-06-19T03:55:16Z")
> [@Chimera](#): > > That seems a little disingenuous when few people would support child marriages. > > Only consenting adults can marry, and every adult should have that right regardless of someone else’s religious objections. No, it’s not disingenuous. He laid out what he claimed the rule was: > [@](#): > > Equal treatment is a right protected by the constitution. A law that says, “You can get married, but that guy over there cannot” violates equal protection, and runs afoul of the highest law of the land. I pointed out that you’re perfectly willing to do that when “that guy over there” was a six-year-old. Now you offer up another rule. “Only consenting adults.” Not sure where that appears in the Constitution. But OK. “That guy over there,” is a father who wishes to marry his adult daughter. Is there another unwritten rule I’m about to learn? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [June 19, 2017, 4:39am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/890 "2017-06-19T04:39:23Z")
> [@Bricker](#): > > You cannot simply repeat “equal treatment,” as the animating principle, because you don’t favor it. > > Or do you? May six year olds marry? > > No? Then there has to be some further principle beyond simply “equal treatment.” How does equal treatment not apply when discussing same sex marriage? What principle within that is violated by allowing people of the same sex to marry? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 4:44am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/891 "2017-06-19T04:44:55Z")
> [@Snowboarder\_Bo](#): > > How does equal treatment not apply when discussing same sex marriage? What principle within that is violated by allowing people of the same sex to marry? I’m pointing out that “equal treatment” cannot possibly be the entirety of the rule. I’m proving that by showing other situations where it doesn;'t work. I’ll echo your own words back at you: _How does equal treatment not apply when discussing child marriage? What principle within that is violated by allowing people under 16 to marry?_ So you tell me: is “equal treatment” really the only operative principle? ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [June 19, 2017, 4:54am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/892 "2017-06-19T04:54:01Z")
> [@Bricker](#): > > You cannot simply repeat “equal treatment,” as the animating principle, because you don’t favor it. > > Or do you? May six year olds marry? > > No? Then there has to be some further principle beyond simply “equal treatment.” This strikes me as a bit like saying, “Washing machines can’t use the same water fountains as people, so therefore there’s nothing in violation of equal treatment about having separate water fountains for blacks and whites.” It’s a patently ridiculous argument that ignores significant and meaningful differences. And yes, _obviously_ there are other relevant differences. There just aren’t any that matter worth a damn for homosexuality. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 5:05am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/893 "2017-06-19T05:05:20Z")
> [@Budget\_Player\_Cadet](#): > > This strikes me as a bit like saying, “Washing machines can’t use the same water fountains as people, so therefore there’s nothing in violation of equal treatment about having separate water fountains for blacks and whites.” It’s a patently ridiculous argument that ignores significant and meaningful differences. And yes, _obviously_ there are other relevant differences. There just aren’t any that matter worth a damn for homosexuality. I advise you to re-read the question I asked, rather than substituting your own views of what you think I’m hinting at. Mine is a very simple question: _what are the rules?_ The rule is not simply “equal treatment,” right? You yourself say that “significant and meaningful differences” are in play, and agree that “_obviously_ there are other relevant differences.” So I’m asking what the actual rules are, the ones that allow us to properly sort out the “significant and meaningful differences,” you mention and arrive at the correct conclusion. If they are obvious, then supply them. What are they, and how shall I know them to be correct? ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 19, 2017, 5:16am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/894 "2017-06-19T05:16:19Z")
> [@Bricker](#): > > No, it’s not disingenuous. Yes, it is. You already know the exceptions for equal treatment. We’ve already laid out exactly what we mean by this many, many times on this board. It is disingenuous to narrowly focus on this single statement, and not take into account what the person has said before on the subject. (You can’t even do that with textualism.) And, FYI, I doubt most of us give a shit about incest, as long as its among consenting adults. There’s an issue with having children, but we’r already having fewer of them, thanks to birth control and abortion. And the issues mostly only come up over multiple generations of inbreeding, which is unlikely in a free society. And then we have early detection. It may still be socially taboo, but there’s really no reason for the government to get involved. We just need to make sure there’s no abuse involved–as that would negate consent. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 5:20am UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/895 "2017-06-19T05:20:22Z")
> [@BigT](#): > > Yes, it is. You already know the exceptions for equal treatment. I’m afraid I don’t, unless it’s “Whatever the courts decide it is.” If that’s what you mean, then yes. I do. > [@](#): > > We’ve already laid out exactly what we mean by this many, many times on this board. It is disingenuous to narrowly focus on this single statement, and not take into account what the person has said before on the subject. (You can’t even do that with textualism.) “We?” You endorse each and every comment made by everyone else? Or you have a sentient intestinal parasite? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [June 19, 2017, 1:15pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/896 "2017-06-19T13:15:23Z")
> [@Bricker](#): > > I’m pointing out that “equal treatment” cannot possibly be the entirety of the rule. > > I’m proving that by showing other situations where it doesn;'t work. I’ll echo your own words back at you: > > _How does equal treatment not apply when discussing child marriage? What principle within that is violated by allowing people under 16 to marry?_ > > So you tell me: is “equal treatment” really the only operative principle? That is a lame try at deflection, **Bricker**. I’ve made no claim of support for any position; I’ve merely asked you to defend your position. And so far, you’ve done a crappy job of it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 19, 2017, 1:25pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/897 "2017-06-19T13:25:06Z")
He’s not taking a position. He’s pointing out that someone else’s position has a hole in it. Which it does. We don’t treat six-year-olds equally to adults. He’s not saying that this means we shouldn’t have legal same-sex intercourse. He’s saying that there is something that distinguishes a six-year-old couple from a same-sex couple (among other things, that neither six-year-old is capable of giving informed consent). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 1:28pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/898 "2017-06-19T13:28:48Z")
> [@Snowboarder\_Bo](#): > > That is a lame try at deflection, **Bricker**. I’ve made no claim of support for any position; I’ve merely asked you to defend your position. And so far, you’ve done a crappy job of it. Hilarious. Because I have taken no position, myself. I’m pointing out that someone else’s position (apparently) rests on a rule that’s obviously untenable. What do you think my position is? In what post did you find it? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 19, 2017, 1:30pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/899 "2017-06-19T13:30:00Z")
> [@Really\_Not\_All\_That\_Bright](#): > > He’s not taking a position. He’s pointing out that someone else’s position has a hole in it. Which it does. We don’t treat six-year-olds equally to adults. He’s not saying that this means we shouldn’t have legal same-sex intercourse. He’s saying that there is something that distinguishes a six-year-old couple from a same-sex couple (among other things, that neither six-year-old is capable of giving informed consent). Ninja’d discussing myself, no less! ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [June 19, 2017, 1:36pm UTC](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871/900 "2017-06-19T13:36:15Z")
Speaking of positions: hey **Bricker** , what do you think about McConnell trying to push the bill without letting the opposition or the general public see it? [Previous page](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871.md?page=44) [Next page](https://boards.straightdope.com/t/house-passes-repeal-and-replace/785871.md?page=46)