P.S. And limiting it to attractive people doesn’t pass the “equal protection” test.
And when the law is challenged, if the courts decide it goes against the rights of the people to have only necessary and proper laws, then it should get stricken down. And in times previous, the courts have decided against popular opinion. Anti-gay marriage laws have been struck down somewhere for being unconstitutional, if I recall correctly. But not all judges are willing to decide things based on the law and instead decide based on their own interpretation opinion, justifying it with highly stretched laws, or (like in the instance of saying “God” in the pledge of allegiance) “because it’s traditional”–so entirely ignoring the law which forbids such. A textualist cannot do this (if he was actually one.)
And so it goes.
Dammit dammit dammit 
I’m with you, and the majority of law enforment people, the damned Constitution is so inconvenient at times.
What I said was meant as a joke, but it is a good illustration of how people think. Congress is great, but only when it does what I want. The SC is great, but only when it rules the way I want. Be conservative or textualist when it benefits me, be a liberal or “intentist” or activist when it suits me. That’s how people think. I can be just as guilty of this as anyone else.
Of course there is. Just define a fetus as a person, and the 5th amendment applies. The 14th amendment does not negate the 5th. Besides, the “born or naturalized” is clearly a reference to citizenship, not actual birth. A strict constructionist might interpert that phrase as you have, but not a textualist.
As an example of the difference between strict construction and textualism, consider the ruling in Smith vs US, where the defendent was given a heavier sentence due the “use of a gun” in his drug crime. The statute called for a heavier sentence if “during and in relation to… [a] drug trafficking crime [the defendent] uses … a firearm”. In this particular case, the defendent bought some drugs and gave the other party a gun as payment for the drugs. The court held that the defendent was guilty of using a firearm and therefore eligible for the heavier sentence. But a textualist would not interpret it that way, as the clear meaning of “using a firearm” is that it would be used for what guns are normally used for-- ie, as a weapon, not as barter. Per Scalia, if I ask you “do you use a cane”, I’m not asking you if you have an antique cane hanging in your hallway as a decoration, nor should that question be interpreted that way.
… or no standing to forbid the states from regulating abortion.
As **Bricker **noted, and as I said earlier, do you think he favors flag burning? We can play hypothetical all day long, but lets not. Lets stick to rulings for which we have evidence.
Ah, but there is a “slight” difference between a democratically elected legislature and a king. However, there isn’t much difference between a king and a SC justice who can rule however he feels he should rule.
True, and hence the 9th and 10th amendments. But there has not been one SC court case that used the 9th amendment as a source of any right. As for the 10th, well, that one was thrown out by the living constitution crowd quite awhile ago (not that I agree with throwing it out, just stating that it routinely gets overriden).
Scalia unquestionable protects rights that are specified in the Constitution. But I think he has a cramped view of freedom. If a right isn’t specified he doesn’t think it merits protection. I think the words of Amendment IX, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” means a lot more than just “feel free to ad more to the constitution.” It plainly says that you are not to deny other rights just because they aren’t enumerated. I don’t see how a textualist can read it any other way.
And who in hell defended Ginsberg’s vote on the eminent domain thing? How did that get dragged in?
John, you’re reaching. A fetus is neither born nor naturalized. If you are going to be a textualist the plain text applies only to those born. To argue that “the ‘born or naturalized’ is clearly a reference to citizenship, not actual birth.” sounds suspiciously like dragging in intent rather than text.
But there is standing to protect a persons basic right to determine their own private actions unless those actions affect the general welfare.
Actually, you don’t need to even use my reasoning to come to the conclusion I came to about the 14th.
The 14th amendment “born or naturalized…” phrase is used to describe who is a citizen, but the due process phrase is worded just as it is in the 5th amendment, using only the word “person”:
Well that’s just the thing. Many people consider abortion to adversely affect the general welfare. n.b.: I don’t, but a case can be made for it if one is allowed to interpret broadly.
If abortion was not protected as a right, abortion could be regulated as a matter of interstate commerce. Or at the very least Congress could pass a law preventing the use of any object that has travelled in interstate commerce from being used in an abortion. That law would effectively end legal abortion.
Yeah, and a textualist (or originalist) SC justice would strike down such a law as unconstitutional. It’s only the “let’s interpret the constituion as broadly as possible” school of thought that expanded the interstate commerce clause into what it is today.
Although the two sitting textualists (Scalia and Thomas) differed on the recent interestate commerce issue regarding medicinal marijuana (Scalia ruled in favor of the feds, Thomas in favor of the states), if you read Scalia’s concurring opinion in the case, it seems clear to me that he would not rule in favor of the feds in the case of a federal law banning abortion.
Not necessarily true. A textualist may feel that the jurisprudence of the court on the commerce clause is wrong, but at the same time uphold the regulation of any object that travels in interstate commerce. It would depend on the particular Justice’s view of stare decis. You can see an example of this in regard to the negative commerce clause which Justice Scalia feels is wrong, but still upholds. So we could easily see an originalist court (or Justice) uphold a law banning the use of any object that travels in interstate for abortions.
And considering the make-up of the Court it is possible that the right to abortion will be overturned, but it is extremely unlikely that we will see a major revision of commerce clause legislation. Morrison and Lopez only put minor limits on the power of Congress and still completely allow for regulation of objects that travel in interstate commerce. In the case that the right to abortion is overturned but there is not a major revision of commerce clause jurisprudence, do you think the Court will carve out an exception for abortion in commerce clause jurispurdence?
I guess I don’t understand your point. You seem to saying that Scalia-type textualism is bad because it won’t remedy past judicial activism by the court, therefore once judicial activism cat is out of the bag, there’s no turning back. Sounds like rather circular reasoning to me. If those poor decisions hadn’t been made in the first place there would be no *decisis *to stare.
This just seems like a further indictment of judicial activism, or if you don’t like that term, than call it the “let’s interpret the constitution as broadly as possible” school of thought.
My point is only that if the right to abortion is overturned it is possible that abortion could be regulated at the federal level. I am not saying this is a bad thing or a good thing.
And I don’t see how the Court’s jurisprudence on commerce (except for Morrison and Lopez and older decisions) can be seen as activist. The decisions are example of judicial deference to Congress.
I also think it is possible for a originalist to take the position that Congress has broad discretion in interpreting the commerce clause and the constitutional protection the framers envisioned protecting the federal government from abusing this power was through the Senate, but that a Constitutional decision was made to take corporate representation away from the states through the 17th Amendment but that Congress is still the appropriate decision maker in determining what falls under the commerce clause. An orginalist taking this position could overturn the right to abortion and then uphold federal regulation of abortion through the commerce clause.
If you say so, but if all that is meant is “citizen” wouldn’t the writers have just said that?
I don’t see much point to this thread any more. The same arguments are being repeated by all sides as in the many previous threads on the same subject.
I guess that’s why we have courts. At least courts reach an end point.
The above is totally silly. The Founding Farthers knew damn well what homosexuality was. Likely they didn’t talk about it much in they thought it was either totally perverse, or perhaps at best thought it is something if that someone did it, they should do it in private and keep quiet about it. There were laws against homosexuality back in the 18th century. If they thought laws allowing gay marriage were wrong, and that it was a right, they’d have put this in the Constitution.
Your argument only makes sense in cases where the FF could not have had an opinion either way, because of changes in technology, etc. For example living wills that say pull the plug if the person who wrote the will became incurably sick and unable to state their wishes. Back then, medical technology was so primitive these people couldn’t have been kept alive period.
The logic of originalism is that if we could raise the FF from the dead, what would they think based on what is known today? Nothing has changed WRT homosexuality. It is just something some people are inclined to do.
IANA Constitutional scholar. It seems by plain reading the FF did mean “cruel and/or unusual”. My understanding of “unusual” was it didn’t mean by typical prison condition standards, but instead unusual for the crime. For example, if I was sentenced to life in prison for jaywalking, when usually a jaywalker just got a small fine, THAT is unusual punishment. Strict penalties are OK, so long as they are uniformly applied.
But in fact they DIDN’T say that. Let’s go back to what you originally posted:
The due process clause in the 14th amendment applies to “person[s]”, not just to those “born or naturalized in the US”. And for good reason-- otherwise the gov’t could deprive non-citizens of life, etc w/o due process. Line up them furiner and shoot 'em!!
Here’s the 14th again, with emphasis added this time:
This means that the 5th amendment due process clause now applies to the states.
I guess so!
Right, they said something different from just plain “citizenship” so my dumb guess is that they meant something different.
I still don’t understand your point. The part about “born or naturalized” does not refer to the due process clause. It simply defines who is a citizen. Are you saying that only citizens have a right to due process? I don’t think so…