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.
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.
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?
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.
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?
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?
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.
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.
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).
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?
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?