I think it entirely possible that they intended as much. Their home states either did not have such laws, or were in the throes of removing them from the books. After all, the Civil War amendments were by and large the product of the Northern states.
Fair enough.
But play along with me, just a little. Let us suppose that in fact they did not. Perhaps they bought the suggestion that anti-miscegenation laws did not in fact discriminate on the basis of race, since they impose parallel restrictions on the members of all races. If that were the case, would you then hold the equal protection elements of Loving to be wrongly decided?
Depends on if you approach this from a Scalia-textualist or a Bork-originalist POV. I see problems and strengths with both approaches.
I think, though, if you had crystal clear evidence of such, that would be a legitimate position to take, yes.
In 1965, when the Civil Rights Act was being debated, numerous opposition representatives claimed that Act would demand forced busing. The bill’s sponsers vehemently denied on the floor of the House and Senate that such a thing would ever come from their simply antidiscrimination legislation. They stridently argued that its text could never, ever be interpreted to require that result.
Within four years of its passage, we had court-ordered busing based on the 1965 Civil Rights Act.
I think on that sort of clear evidence of intent, you betcha the originalists ought to hold sway.
Charmed, Mr. Kettle, charmed. Have I the honor of addressing the famous “Pa” Kettle?
Right after you frame the question in a calm and even-handed manner, to wit:
Here you are, dear reader, choose carefully between the manic ravings of red-eyed and frothing elucidator, or these simple homespun plausibilities, as ordinary and common-sensed as a Methodist social.
But one part eludes me. I stand accused of fashioning “perfectly acceptable” discriminations into “exceptions”, which “exceptions” are “nowhere to be found in anything more concrete than the interpreter’s whim…”
Huh?
I am surrounded and bewildered, they are too many for me. I’m probably guilty, I usually am, but generally I have some idea what it is that I’ve probably done. There is every chance I will confess my guilt and beseech your pardon once you explain just what that is supposed to mean.
But of course! We agree entirely, the issue is perfectly simple, and no sensible person would disagree. We both agree that this is so, we are both smart, therefore we must both be wrong.
The parenthetical should have clarified exactly what I was referring to.
I have but a second, and do not take this personally, but it is this kind of arrogant posturing that is so incredibly annoying about many originalists (and some people in this thread.) Your idea that I somehow advocate justice over the duty to uphold the constitution is, frankly, bullshit. The belief that textualism is the only way to interpret the Constitution is arrogance. The belief that judges are bound by the intent of people dead 200+ years, people who never actually had a single intent, is folly. The belief that advocating for a method of Constitutional interpretation that looks beyond an inflexible approach somehow shows less respect for the Consitution is bollocks. Simply put, just because I believe the Constitution should be interpreted more broadly does not mean I would not uphold it, or that I’m replacing the “will of the people” with some kind of elitist jihad.
But don’t take that personally.
Off to dinner. Perhaps Monday.
See, the problem I have with all this intent stuff is that the further back you go, the more the intent is likely to have been informed by out-and-out falsehoods. I quote myself from my initial post in this thread back on page 2:
I should have thought it perfectly obvious that if those who passed the 14th hadn’t thought it applicable to anti-miscegenation laws based on the view that such laws didn’t racially discriminate, the proper conclusion to draw would simply be that they were mistaken in their belief that anti-miscegenation laws didn’t racially discriminate, and not that they had intended to exempt that form of racial discrimination from constitutional prohibition.
I am a non lawyer. <---- Sounds like an AA thing. Without using the fancy terms, wouldn’t a “full house” of either one be bad? Too extreme one way or the other? We have the literalists. We have the POVers. Both have their place. Literalists keep POVers from going too far one way. POVers keep the literalists from going too far the other way. Whenever a president is able to get someone appointed, he has shifted the balance. Each following president appoints different people, based on who he wants and who he can get, changing it again. In the long run, that should work out to a balance. In the long run. The judges are appointed for life. It gives stability. Good if you agree with them, bad if you don’t, I won’t quibble about which curent ones are “good” or “evil”. That depends who you ask. It’s all about stability and balance.
As far as constitution vs. justice, I thought the constitution was the general guideline, the “top” policy document. What is left out can be as telling sometimes as what is included. If it says ALL, that doesn’t mean us but not them. It does not mean separate but (un)equal, it means ALL.
There have been some pretty torturous interpretations, which sound like gobbedygook to me. Does it make sense that sometimes The Simplest Answer Is The Right Answer?
Hell, Steve, the simplest answer is the right answer! Happily, it is my answer. I note this with all humility, as a plain recognition of fact. That friend Dewey remains adamant against the blazingly obvious bewilders us.
I fear he is too much influenced by one variety of Founding Father, the sort of scoundrels who hung about with that little bitch Al Hamilton, who was no better than he should be. They conspired against the more dedicated and radical of the patriots, and stunted the Republic and hindered the progress of human rights.
No Paine, no gain.
And yet, just one page earlier in this thread, you asked me:
I don’t think it a terrific leap from those loaded questions that you find the toleration of injustice in the name of process to be unthinkable, the caveat in the last clause of your last query notwithstanding.
I ask you again, would you find that the constitution forbade slavery prior to the passage of the 13th amendment?
No, it is the opposite of arrogance. It is the belief that the authors of a law should determine what it means, rather than the person interpreting it. What is arrogance is activism: it takes a tremendous ego to set aside the people’s will in favor of one’s own conception of justice in the abssence of a clear textual basis for doing so.
Folly? No, respect for democracy – the constitution did not spring forth fully formed from the ether; it is a product of democratic processes and thus its interpretation should honor those processes.
However, I note there is significant debate on how best to honor that process. Your critique is what a Scaliaite textualist would level at a Borkian originalist. Neither method is flawless, although both are superior to the rudderless methodology of living constitutionalism.
I love how living constitutionalists chant the refrain of “inflexibility” at strict constructionists, when in fact it’s quite the opposite. Legislative solutions are flexible and are easily changed; judicial solutions necessarily apply broadly and are hard to change.
Take the instant case: a judicial finding for gay marriage will make that the rule everywhere, while a judicial silience will allow a variety of options among the various states, from full–blown gay marriage to civil unions to complete disallowal. Which is more flexible and which is more rigid?
The Federalists, who favored a strong central governement and prized central federal control over everything else? Those guys? 
When I read something along these lines:
In the case of DeweyCheatham vs StevG1 as interpreted by Luc in paragraph 257393.a.a.1.3 of revision 453 of the fourth printing of blah blah blah we find that <unintelligible terms only a PhD can read, less much make sense of> except in the following 5 billion and 400 thousand unique and mutually exclusive but also inclusive exceptions but only on Tuesdays…
My eyes glaze over. If the constitution says for example “the rights of the people shall not be infringed”
Then that is what it means. Period. It does not mean “the rights of the people shall not be infringed except when politically expedient”. It does not mean “the rights of the people shall be infringed to buy votes”.
It means what it says.
Simple question, 'luce: can you articulate any concrete limits upon the judiciary based upon your theory of interpretation? Where can’t they go?
Interesting that you should choose that formulation. It appears in substantially that form in only one place in the Constitution, a place my opponents would rather forget I suspect.
There was just such a finding in Massachussetts, yes? So far as I can tell, nothing much has changed here in Woebegonia. Folks around here are a bit tardy on trend lines, but I would have thought everyone might have heard about it, by now.
Calm down. I thought we were having a respectful debate (even though this is the Pit) and asked you to clarify your statement (the one **Dewey **quoted from the previous page). How that could be interpreted as arogant posturing, I can’t imagine.
OK, let’s back up. I was asking the question in a general way, not with a particular reference to the SSM issue. And I’m not talking about whether or not judges DO put their concept of justive above the constution, but whether you think they SHOULD.
As **Dewey **pointed out, somthing can be constitutional, but unjust. The constitution, being the prduct of men, has flaws of course. And the example he gave was a very good one-- ie, was slavery (which we can all agree on as being unjust) unconstitutional prior to the enactment of the 13th amendment?
Why in the world would I embrace an interpretation of the Constitution that permits the oppression of a harmless minority if another interpretation, with equal intellectual legitimacy, is at hand?
“Loyalty to petrified opinion never yet broke a chain or freed a human soul in this world–and never will.”
- Mark Twain
But then you run into the issue of why are same sex couples subjected to a 5 year waiting period, and everyone else is not. If the state wanted to subject everyone to the same 5 year waiting period, then it wouldn’t be discrimination.
I thought it clear from context I was speaking of a federal ruling, which I understand you as being in favor of.
Still, precedent being what it is, my point about the relative flexibility of both appraoches remains.
And you still haven’t answered my question.
I picked that one because it is the most direct statement I could remember - I hope nobody uses it to springboard into a hijack. I understand that “legalistic” language has a purpose (an attorney friend educated me as to the need for it). A big problem is, as I see it, the Supreme Court will rule on something. They are referring to that case, not always making a “blanket statement”. They are reading The Law as written and drawing an inferrence as to what it says, and how it was intended - you can’t separate the two completely. If they find a disconnect, if they find it does not meet the intended purpose, they say so. If they find it violates other already existing laws, they say so. When for instance, slavery or Jim Crow or Separate But Equal was struck down, they did not do so because it was evil (it pretty stupid), they did so because it was unconstitutional - it violated the “sense” and the "words “All… equal”. No judge (I hope) is allowed to run rampant, imposing his / her own pesonal ethics or religious values. They are expected to interpret and uphold law.
You said in effect, that we should not be subject to the whims of the judges. I agree. I would hate to see a country “ruled” by Roy Bean - erratic and unaccountable, making the rules as he goes. That’s why we have a president and congress. If they foul up, they get fired (elections). Congress makes the laws. They blow it, they’re fired (lose the next election).
The constitution was written over 200 years ago. Many things we scream about simply did not exist then. Wiretaps? Air travel? Glocks? It’s a whole different world. So, we have some choices to make. We can look at the words themselves. We can look at the overall intent (based on those words), given the conditions, technologies and dominant philosophies back then. We can even look at the characters of the people who drafted it. Then we can make a balanced decision. Make an amendment, strike down a law, etc. It isn’t pure literalism, it isn’t pure intentism(?). It’s a mix.
What worries me most, is when someone says it’s not allowed because it wasn’t included (Scalia saying people have more rights than the constitution gives them). It’s a dangerous view. That is saying nothing is allowed unless it is expressly permitted. Some things were omitted because 1) they didn’t exist 2) they were considered unimportant 3) the culture was different.
The constitution was mainly written to define and limit what government is allowed to do, as a reaction against the blanket powers of kings. It was not meant to define and list what “the people” are allowed to do. It was not cast in stone - if it was, no amendments would be allowed.
Sorry about all the verbage, it’s hard to capture everything I want to. That’s a problem too. No language is accurate or precise enough to always say what we want. That has to be considered too.