“When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted.”
McDonald v. City of Chicago, 561 U.S. 742, 828 (2010) (bolding added)
This is man known to cite 18th century dictionary definitions of words (for example, I’ve seen him argue that liberty is limited to “not being in jail”, because that’s what people thought of as “liberty” in the 1700s) I respectfully disagree with your dismissal of my claim.
Yes. But literally nobody believes that the words refer to things invented then and to no future inventions. They wouldn’t believe that a carriage could not be searched, but if a motorized version was invented in the future, that it could be searched at will.
I think you are trying to prove too much here. Nobody today or then would interpret words in a fashion to exclude future technologies.
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g. , Reno v. American Civil Liberties Union , 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g. , Kyllo v. United States , 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
And the enforcement of that prohibition was the federal Civil Rights Act, which was (in my opinion) a constitutional law pursuant to Section 5. You seem to be saying that the 14th amendment gave congress the power to, I guess, negate a discriminatory state law. Instead, congress affirmatively passed a federal law which overrode state sovereignty on this issue.
The question, as I see it, is what did the civil rights act cover? Only then can we address whether it was constitutional pursuant to the 14th amendment. I don’t believe that it sought to restrict private homes. And I see a distinction between such an attempted restrict and one applied to a business opened to the public.
If you look at the text of the 14th Amendment, it is prohibitory on what States may do, not on what private individuals or private business owners may do. If Howard Johnson motels excludes blacks in the south, that is not a State doing the discrimination and thus clearly does not fall within the prohibitions of the 14th Amendment or becomes part of Congress’ power to cure. That is why the Court resorted to the commerce clause in upholding the 64 Civil Rights Act.
Respectfully, I think it is you that doesn’t get the purpose of a Court. It is not there to strike down “bad” laws, only unconstitutional ones. And the debate here WRT Bork is that just because a result is good (strike down anti-contraception laws) doesn’t mean that the law was unconstitutional.
No. Nobody has argued that originalism meant that the people would be blind to the future to similarly situated things. I think that is true now and then. A law passed in the 1980s against possessing child pornography would equally apply to digital images and literally nobody, not even Clarence Thomas, would think otherwise. If you asked an average person on the street in 1982 “What if we had phones with displays on them that could show child pornography? Do you think that the recently passed law would apply?” You would get 100% yes.
This is just straining to try to take a jab at originalism that doesn’t exist.
I’m reminded of the guy who walks up to a woman and asks her to sleep with him for a billion dollars. When her eyes light up, he says “or $10.”
She gasps. “I’m not some whore!”
He replies, “We’ve already established what you are. Now we’re just haggling over price.”
…
You’re conceding that, in order for the law to be functional, it must be applied to analogous concepts that were not originally conceived by the drafters.
But then you scoff at people who claim that there are things covered by the constitutional rights enshrined in the constitution even though they were not in the minds of those who wrote those laws.
See, you’ve already established that you agree with reasoning by analogy to similarly situated things that were developed after the law was drafted. Now, we’re just haggling over scope.
At the risk of walking into a trap, I agree with you. If things developed after the drafting of the Constitution or any amendment, then that thing is covered if it is sufficiently similar to something analogous that was covered at the time of the framing.
ETA: I await to see how we get from there to contraception being a fundamental right.
I respect the fact that you might be a strict textualist, and aren’t going to agree with the contraception decision, but that’s still more intellectually honest than when people talk about limiting laws to their “original intent”, except when it’s convenient (cough Heller cough) not to.
And, for what it’s worth, I don’t like this “fundamental right” business. I think Obergefell was poorly decided, for example, and I would have written a concurrence. I don’t agree in resting the decision on a fundamental right to marriage. Rather, I believe it was an equal protection issue, in that men and women weren’t equally allowed to marry a man, and there is no rational basis for that exclusion.
But, if that had been the law, it might have recognized gay people as a protected class (I think intermediate scrutiny should apply, same as sex discrimination), which means they’d have lots more recognized rights under the constitution.
(And my suspicion was that the decision focused on marriage, rather than the class that is gay people, and that none of the justices deviated with my suggested concurrence, due to the internal negotiations necessary to get Kennedy to join the majority)
[As to the contraception issue? I found this part of Justice White’s concurrence compelling
I think it’s fair for the court to take a circumspect look at invasions of personal liberty and require the state to proffer a sufficient compelling justification and carefully tailored application.
The obvious negative repercussions of those hypothetical actions would seem to overcome the judicial skepticism I just mentioned - a state can pretty clearly offer up reasons why it should be able to interfere with a privacy interest when it results in a child’s injuries (drug use, in my opinion, is a bigger leap, but that’s another discussion altogether). Just because there is a right to privacy - or a due process right against arbitrary intrusions of liberty - doesn’t mean it’s inviolable.
Would you be okay if guns were illegal to own in New York as long as they were legal in Texas?
You shouldn’t be. If gun ownership is protected by the Constitution then it’s protected throughout the entire country, not just in the states where it’s popular. And the same is true about abortions, which are Constitutionally protected even if some people don’t like the fact that the Supreme Court said so.
I don’t believe you’re doing an analogy, when applying the word “effects”, if you’re saying that your car and your phone are your effects. That’s, y’know, the thing that they wrote: they could’ve added, but didn’t add, words limiting that right to devices that had already been invented; they instead wrote the right as applying to — effects.
It seems like one could (a) do that and (b) still consistently scoff at something else entirely.
This is the debate we are having. Did the Supreme Court get Roe right? I know we have been talking about Griswold, but that led to Roe, and the house was built on sandy ground. IF it is a constitutional right, then it does not depend on NY v. TX. If it is not, which is what this debate is about and what Bork was saying, then it should.
I think that the argument is that an originalist needs to be able to think like an 18th century misogynistic racist. And the best originalists are the ones to whom that mindset comes easily.
How do you define an “invasion of personal liberty”? All laws tell you that you can’t do what you would like to do. What about contraception makes it a protected liberty? The rational basis test that Justice White used can only be boiled down to the idea that he disagrees with the law. The rational basis test is never used except when it is used as a subjective judgment.
That’s an … odd? … take on Bork’s position. Bork was pretty clearly on the record saying that public accommodations laws to stop racial discrimination violated an individual’s constitutional right to associate with whom he wants. "It is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them…. The trouble with freedom is that it will be used in ways we abhor.” Clearly, he would, as a justice, have found the public accommodation laws of the Civil Right’s Act to be unconstitutional. To think otherwise is simply a very poor attempt at post hoc rehabilitation of Bork.
And the fact that other people held the same opinion (I gotta ask, do you agree with him?) is meaningless in the determination of whether Bork should have been on the Supreme Court.
First, he disclaimed that position as early as the 1970s. And disagreeing with a law does not mean that the law is unconstitutional. I feel the need to keep repeating that. A bad law is not necessarily unconstutitonal.
And second, why does my personal opinion matter? We are talking about Bork? I fear that you only ask that as a gotcha to try to make a personal attack. No, I disagree with opposition to the 64 Civil Rights Act on the merits. There are good constitutional arguments against it on the national level.