I hope my legal analysis is not too technical and obtuse. It probably isn’t even dispositive. (I have promised to send Bricker a nickle every time I use that word which he taught me, but I’m waiting until it gets to at least 25 cents…)
Fat Tony is just being a prick. He does that, he delights in rattling liberal cages with shit like this, which is defensible if you take your zircon-encrusted parsing tweezers, but has no practical effect. It has no practical effect because he, like us, has incarnations of the Goddess to answer to. And even though we who are testosterone impaired tend to be a mite stupid, we’re not that stupid.
That’s certainly true. I can see the concurrences now “Of course the 14th Amendment doesn’t really apply to women, but stare decisis compels me to find with the majority.”
Is there a clear, strict, definition of what makes a change ‘substantive’?
If there isn’t, then isn’t it up to the interpretation of the judges, and not up to the plain text in the Constitution, whether something (e.g. message board speech) is covered by a particular amendment?
What is the reasoning that EP seems to exempt women and blacks from having a voting right in Section 2 of the amendment? Wouldn’t a law saying that only white males can vote (disregarding the 15th and 19th amendments) seem to violate section 1 and EP on its face? Not so, according to section 2 of the 14th amendment.
It seems that the equal protection talked about in section 1 does not mean what we think it means today.
If tomorrow they pass an amendment stating that Martians get the vote, there will be people debating on whether or not it counts for people born on Mars, the Martian race, naturalized Martians, or people who were once Martians but changed citizenship
We wouldn’t need the Civil Rights Act if everyone had just stopped being all racist pricks after the Civil War. The natural progression seems to be that you pass a law extending rights, then you need to pass more laws clarifying it and codifying the less bigoted view into everyone’s brains so that we get to the point where racism is a bad thing instead of a wink-wink kind of backroom deal
The courts have jurisdiction to interpret the laws. Sometimes they do so narrowly, sometimes broadly. It is neither a contradiction to deny that one Amendment was necessary to do what a previous one had done, or to pass another Amendment doing what you wanted a previous one to do
The arguments about the 15th and 19th amendments are a red herring. The undisputed history of the 14th amendment is that Republican leaders repeatedly stressed that the amendment did not apply to suffrage. There is oodles of historical evidence that the amendment would not have passed if people had thought it applied to suffrage, and that’s why no contemporary thought it did.
The question of whether “person” in Section 1 was intended to apply to women is entirely different. Indeed, the fact of the debate over whether the amendment extended to suffrage actually support the idea that people thought that Section 1 applied to women. If they didn’t, they wouldn’t have been so concerned about women’s suffrage resulting from it.
This is another in a long line of examples of where Scalia conveniently gets his history wrong in a way that aligns with his ideology. The fact is that there were significant disagreement about the effect of Section 1 at the time, and his assertion that “no one” thought it applied to women is demonstrably false.
A better example might be a state (the equal protection clause does not apply to the federal government) establishing public math and science schools that are only open to males. Scalia would surely find this okay, just like he had no problem with a state military academy that only admitted males.
So, if we find, by appropriate legal procedures, that Tom DeLay is a criminal douchebag…could we then find, by due process of law, that Texas Republicans, as a class, are outlawed?
Let’s not be too hasty here, L’il Nemo. Keep an open mind. The boy may be on to something.
Due process would prohibit you from outlawing Texas Republicans as a group. It would be theoretically possible to enact a law making it illegal to be a resident of Texas and member of the Republican Party but it would only apply from the point of its enactment. And then you’d have to charge and convict violators of the law as individuals with their normal due process rights.
If you were to just legislatively declare Texas Republicans to be criminals without trials or anything it would be a Bill of Attainder, which is prohibited by the Constitution (the original text - it predates even the Bill of Rights).
My understanding (perhaps flawed) is that the 15th Amendment was required because the 14th Amendment explicitly allowed the states an out by saying “You can prohibit groups from voting but then they don’t count towards your population re: representation”.
Unfortunately Scalia can and does do real harm with his inconsistent judicial philosophy (which is apparently really just him imposing his ultra-conservative ideology and twisting the law to fit).
In Heller Scalia discarded the key precedent of US v. Miller. So much for stare decisis. Scalia’s self-ascribed Originalism goes out the window in Heller. Scalia also magicked up a new right not mentioned…the right to self defense. Certainly other rights have been deemed to “emanate” from the constitution but I thought Scalia abhorred that sort of thing. Apparently he doesn’t if it suits him.
Then in Citizen’s United Scalia extended personhood to corporations. For all the hand wringing over whether the 14th includes women I personally have never seen the word “corporation” in the constitution yet it seems they deserve constitutional protection.
Maybe women should incorporate themselves. They’ll have more protection that way.
Exactly. Scalia is as activist as Earl Warren. He’s making up legal ideas as he goes.
The difference is that Scalia denies it. He pretends that his ideas were there in the “original meaning” of the Constitution. Only somehow, nobody for two hundred years knew that the original meaning of the text gave people a right to self-defense or gave corporations rights as people. But Scalia knows.
As I wrote recently, I’d define his legal theory as revelationism.
Okay, compare and contrast District of Columbia v. Heller and Roe v. Wade.
Justice Blackmun bases his decision in Roe on the right to privacy. There is no right to privacy explicitly enumerated in the Constitution. Blackmun says it’s implied in the text.
Justice Scalia bases his decision in Heller on the right to self-defense. There is no right to self-defense explicitly enumerated in the Constitution. Scalia says it’s implied in the text.
Now here’s the funny part. Scalia has condemned Blackmun for making up the basis of his decision. He says that there’s no enumerated right to privacy in the constitution and Blackmun shouldn’t have claimed it as a right and based a decision on it.
Miller isn’t really a good case, though. It had no defense. That’s why you get odd things like statements that sawed-off-shotguns aren’t weapons used by soldiers, while soldiers were using sawed off shotguns in Vietnam.
I’m not saying it’s bad law, I’m saying that I always viewed it as slightly screwed up because of that, and really requiring something like Heller to complete it.
Would it have passed if people thought it meant integrated schools? No anti-miscegenation laws? Gay marriage? Women in state military academies?
I still contend that there is no way to square the modern interpretation of section 1 with the clear text of section 2. You can’t pass a law saying that only white males can vote and still not deny blacks and women “equal protection under the law” as we understand and apply the term today.
For those issues that existed at the time, the answer is yes. It did in fact pass despite the fact that some supporters thought the amendment would lead to integrated schools. So far as I know, no one anticipated the other questions. Unlike suffrage, which was at the core of the debate and explicitly disavowed by supporters who altered the language to achieve that result, there was no reason to ask whether the text would affect the other issues you named either way.
And let’s be clear: I’m not arguing in favor of this kind of naive originalism. I’m just saying Scalia has his history wrong.
I think you’re misinterpreting section 2. Section 2 nixed the 3/5ths clause and was the compromise over suffrage that permitted passage of Section 1 (i.e. if you give blacks the vote, you get more congressional representation, but we’re not forcing you to do so).