Okay, that’s scary. What requirements and to whom would that be demonstrated. How would something like that be possibly worded to be constitutional?
Is this something that would only be permitted by an ideological court, or are you really saying that having a tax system that is bracketed by race could pass constitutional muster?
I would say the former. The right to marriage existed when marriage was created. When the 14th amendment was passed, that conferred that right to all american citizens.
The fact that it took 150 years for courts to recognize that right does not mean that it doesn’t exist.
I’ll ask you, when did the 14th mean that mixed race couples could not be denied marriage rights? The instant it passed or in 1967?
I know that I’m politically the opposite of Gorsuch but he strikes me as someone who’s fair and tries to put aside his ideology in pursuit of an accurate rendering of the law. That’s about all we can ask for, I think. When I think of Gorsuch, he reminds me of Justices John Roberts and Anthony Kennedy.
I know this is sidebar discussion, but on the issue of his nomination, I frankly think it would be a mistake for the Democrats to go all out in opposition against him. They still have the filibuster (at least in theory) and they ought to save it for later, as there is a very high likelihood of Trump appointing a second justice to the bench. They have some momentum right now, particularly as it relates to the Devos nomination and perhaps others. Dems would be wise to focus their energies there instead. But Gorsuch seems like one of Trump’s better new appointments, along the lines of Pompeo and Mattis.
I laid out the test that applies to any law that creates a classification that is race-based. It’s the most exactly of the levels of scrutiny the courts can apply to a law: it’s called strict scrutiny and is very difficult to pass. In practice, I cannot imagine what compelling interest the government could offer up that such a tax break would further, and for any interest they did offer, I can’t imagine how a tax break would be the narrowest way of fulfilling that interest.
But I hope you see the difference: the court cannot be asking itself, “Is this a good law?” That’s not a question for courts. The court can ask whether the law meets the appropriate standard of scrutiny.
My problem with that view is: when would the aggrieved citizen be able to “self-govern” and revoke that right?
In other words, if we truly are a nation of self-governance, if We The People truly exercise ultimate authority, when did citizens get notified that their representatives had passed a Constitutional amendment that permitted same-sex marriage?
If Congress passes a tax hike, the citizens can go to the polls and vote in new Representatives within two years. They also replace a third of the Senate. Two years later, another third of the Senate and the Presidency can be replaced.
But when Congress passed the same-sex marriage amendment in 1867, no one knew it! You say that the Fourteenth, from its inception, permitted same-sex marriage, but I hope you agree that if the courts had realized it at the time, a clarifying amendment would have swiftly followed.
So – when does our self-governance kick in?
I think the historical background of the Fourteenth Amendment was fairly clearly focused on eliminating invidious racial distinctions. So in my view, people were on notice in 1867 that the Amendment could mean that mixed race couples could look to its protections.
Consider the women’s vote issue. Although the Fourteenth Amendment speaks of equal protection for all persons, no one at the time thought it meant that women could vote. That simply wasn’t part of the view about what the Amendment was about. And when women sought the guaranteed federal vote, they correctly realized that a new amendment was necessary.
If your view is correct, why did Carrie Chapman Catt push for the adoption of the Nineteenth Amendment? Why did she not simply point to the Fourteenth Amendment and demand her rights, and the rights of all women, secured there?
In 2019, Justice Cruz and Justice Carson, having been appointed to fill Ginsburg’s and Breyer’s seats by President Trump, announce the 5-4 ruling in an abortion case: the Fifth Amendment’s guarantee that no life may be taken without due process of law applies both to the born and the unborn. No state can permit an abortion without a trial henceforth, to safeguard the right an unborn child has to life.
It wasn’t the 14th amendment that permitted same sex marriage, it was the laws that governed marriage itself. The laws that allow people to marry and confer on them benefits gave no limitations to people who wanted to join in matrimony. If these laws were narrowly tailored to limit the benefits to procreation and the birth of children and exclude those who are too old to have children, don’t desire to have children, or are otherwise physically capable of having children (i.e. two men), then I would think that the marriage laws would pass constitutional muster and same sex marriage could be denied*. But that is not how the marriage laws were formed; they allow two individuals to marry regardless of age or desire to have children. Given this, it would be unconstitutional to deny the protection and benefit of these laws to arbitrary individuals based on their sex, race, religion, or what have you.
*Note: If the marriage laws were tailored to create a stable household for the raising of children (distinct from procreation), then again you could not constitutionally deny the benefits of the marriage laws to same sex couples with children as it would conflict with the 14th Amendment’s guarantee to equal protection.
It seems to me the disconnect here is you believe the constitution is a sharply worded law that draws bright lines on what is and is not allowed.
Other see it as a set of principles. When the FFs wanted to draw bright lines they did (e.g. you have to be 35 years old to be president…not just someone of suitable maturity).
When equal protection was written in to the constitution what makes you think it only applied in some situations but not others? It did not mandate same sex marriage. It mandates that if you allow marriage then you apply that law equally, without restriction. It absolutely prohibits the notion that only white people can marry white people. Only black people can marry black people.
Not sure why this is lost on you.
Just because it took society a long time to get around to the obvious conclusion does not mean some right was magicked up. It was always there.
That would be bad. I think it’s very likely that conservative justices like Thomas and Alito would find a way to justify voting to outlaw abortions, even as they claim they are strict Constitutionalists.
I don’t disagree that it’s a set of principles. But those principles were the ones that they understood themselves to be enacting. If we realize that a decent society requires a novel application of those principles, like women getting the vote, fidelity to the notion of self-governance requires we exercise the amendment process.
Your view is certainly a possible one; you give the judiciary a role in discovering new applications of those principles. I’m arguing that such a view weakens the idea of self-governance in favor of a “wise philosopher king” model, where we empower wise elders to act with their own wisdom as a super-legislature and insulate them from democratic consequence when they legislate. There’s nothing objectively unworkable with such a system. It’s just not consistent with what we say we believe as far as self-governance goes.
Yes to the first. Possibly yes to the second as well, but in a way that, IMO, has been the norm for decades, if not since our founding. But since I can’t read minds, I couldn’t know for sure if they were honestly trying to interpret the law objectively or if they let their biases infiltrate their ruling.
I am not sure what you mean by “self-governance”. That is a pretty big target and the FFs certainly put limits on it.
In the end they did create a system of checks and balances and the judiciary is a part of that. It is literally their job to be a check on the other two branches. This is by design.
If you want to argue this is a bad model go for it. I bet that would be an interesting debate.
With respect to who can own or be licensed to drive a car, absolutely. Same for most traffic laws and parking laws, etc…
The only things which probably ought to be different would be the ones that explicitly pertain to the relative performance between the cars and modern developments pertaining to that; i.e. any 1919 speed limits could be adjusted upward in places where the more modern cars outperform the older ones. But in cases where the speed limits were within the capabilities of the older car, the development of a faster car is immaterial.
For example, if a city had a 20 mph downtown speed limit in 1920, there’s no reason to change that just because cars have become faster in the interim. It would make sense on a highway though to extend the speed limit, as the Model T could only go 45 mph.
But what most anti-gun types are suggesting is more like restricting ownership/licensing based on car features. How do you think it would go over if someone suggested that nobody has a “need” for anything other than a cheap-shit econo-box, so we should prohibit pickup trucks, sports cars, luxury cars, etc… for everyone except those who can show a specific need? Or if it was suggested that nobody can have wide tires, turbochargers, tuner chips, fuel injection or ground effects because they’re dangerous or look like they might go too fast, or someone might get in a wreck?
But the court does ask itself, “Does this law conflict with the constitution, or with other laws that are pertinent?”
If a law conflicts with the constitution, or if two laws contradict each other, the court needs to make an interpretation on how those laws should be implemented.
Depends, if they were enlightened enough, they may have realized that.
Taxes aren’t rights.
Well, you have said it on many occasions, if you don’t like the amendment, change it.
But that took 100 years to be recognized. Some notice.
It wasn’t even another 50 years for SSM to be recognized.
I don’t think it should have been. It should have been protected under the 14th, except that the 14th explicitly says “male” in it with regards to voting. The 19th amendment could have been a modification to the 14th to remove the word “male” from it, and it would have had the same effect. If the 14th hadn’t said male, it may have still taken some years for women’s right to vote to be recognized under it, but that right would have existed at the time the amendment was adopted.
It depends on circumstances. I assume you aren’t saying that the SC just up and makes that declaration, and that instead, it was a legal challenge to a federal law that already says that abortion is illegal, plaintiff being someone seeking an abortion, and the defendant being the federal govt? In which case, they are not creating law, they are just upholding the law that exists. You have the same remedies as you have to any other law that you may not like.
Now, if you point is, is that the law they ruled on did not have the “guarantee that no life may be taken without due process of law applies both to the born and the unborn. No state can permit an abortion without a trial henceforth, to safeguard the right an unborn child has to life.” wording in it, and they simply added, then yes, that would be a form of legislating from the bench, but I disagree that the examples that you cited where the “language added” was clarifying a conflict of differing laws is in any way similar to creating a new right for a new class of people who prior to that, didn’t even exist.
Do you agree with the courts ability to rewrite contracts? If I make a non-compete clause with one of my groomers, and it says “You can never work as a groomer for anyone else, ever again.” the courts are not going to look favorably upon that, as it does not conform to the laws that govern what you can do in a contract. Assuming the court doesn’t just throw it out, they will re-write it to comply with the law. You could consider this to be writing a new contract, but it is really just getting a current contract to comply with the law. The same as if there are laws that conflict with the constitution or each other, and the court needs to re-write them a bit (or more) to make them comply.
And yet its drafters chose not to include any reference to that great historical event or its effects in the text of the amendment - unlike in the 13th Amendment.
There is plenty of ambiguity in that law since “reasonable and prudent” was not explicitly defined - I think one could easily make the argument that the legislature left it vague on purpose, to adjust as the general perception of “reasonable and prudent” changed over time.
Counter example: The Model T Amendment instead states: “Automobiles, being dangerous to pedestrian safety, shall be governed to a maximum of 30mph”
Can the courts argue that this no longer applies to cars of 2016, as cars (with softer bumpers and hoods designed to reduce injury to pedestrians during impact) are much safer today than they were 100 years ago when the amendment was drafted? Or that just because a Tesla looks nothing like a model T, and uses electric motors for propulsion, that it simply doesn’t apply to what the drafters defined as an “automobile”? Or that even the concept of a mile was different in 1916, when interstate road travel was in it’s infancy, and that transatlantic passenger flight didn’t exist ?
No. Regardless of whether it’s in society’s best interest to scrap the amendment, it’s the job of the legislature to fix it. Not the judiciary. In this example, cars are stuck at 30mph until congress gets off its ass and does something about it. Can’t get 2/3 of congress and 3/4 of the states to agree about it? Sucks to be us, but then maybe the “right to travel more than 30mph” wasn’t that important to everyone anyway.
I’m a little confused by your stance here, I thought you strict constructionists (I believe you have claimed this is your legal philosophy) didn’t believe in using the intent of the founders or legislators when interpreting a law, but instead use the words that are in the law. Yet here you are saying it was obvious the 14th amendment was all about race as that what was intended when the law says nothing of the sort:
[QUOTE=The Fourteenth Amendment to the Constitution of the United States]
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[/QUOTE]
I see nothing about race in here, why are you trying to imply that this is an amendment about racial equality when it says nothing of the sort. If the legislators of that time wanted to make the equal protection of laws apply to all races, but not to those of different religion or different sexes, wouldn’t they have put that text into the amendment?
Regarding Carrie Chapman Catt, all of the text of the Constitution until that time codifies a mans right to vote, not a woman’s. This was why the nineteenth was needed.