Not always. If a state’s prisons are overcrowded, that might violate the eighth amendment. A good judge would start by telling that state, “You need to fix this.”
But after enough time goes by, and the state has not fixed the problem, it isn’t really “activism” for the judge to say, “Okay, I tried letting you solve it; now you’re under orders to release prisoners until the crowding is relieved.”
That might seem like “legislating,” but it’s really enforcing the constitutional provision by a court order.
You are making some very good points in the thread k9bfriender; I am saddened the Bricker seems to be unwilling to address them. I think his ideology is getting tangled up in his judicial philosophy. For instance:
It seems pretty clear to me that Bricker is arguing here that what is important for a judge to consider is the intent of the founders or legislators that pass a bill, not the actual words in the bill. I guess textualism is only valid when it supports your ideology.
[QUOTE=Antonin Scalia]
[it] is the law that governs, not the intent of the lawgiver.
[/QUOTE]
Except if gay people are involved I guess, then our representative system can remove equal protection of the laws. Is that right Bricker?
One of the difficulties in comparing interracial and same sex marriage is when talking about intent of the framers:
Interracial marriage was something everyone knew about. There was never a time in all the country’s history when it was illegal in every state. That is, there were always a few states where interracial marriage was legal. It may have been frowned upon, but it was something everyone knew about.
SSM is something that was inconceivable 150 years ago. Homosexuality was considered at best a disease, and at worst a depraved activity that would damn the person to Hell. It would, literally, be like people today condoning peadophi
I wouldn’t go that far. Pedophilia is a predatory behavior, much closer to rape than homosexuality. Maybe incest (between consenting adults) or bigamy would be better analogies. Either is considered anathema in our culture but may be acceptable in other parts of the world and/or time periods.
I like where this thread is going! I would give a qualified yes. There are things that cannot be legislated away even by the majority; those are what we call rights. So if their will would wrongly and evily (?) take away a right of even one person, their will would be illegal/immoral/corrosive to society/whatever you want to call it. Other than that, though, the fate of a democracy, for better and for worse, is theoretically in the hands of the people. If the people choose to be stupid and uninvolved, then they will lose the republic the founders gave us.
I guess the point is, to play a bit of devil’s advocate, is that because interracial marriage was certainly known at the time, and that even after the passage of the 14th amendment, nobody at the time seriously thought that this would mandate that any State legalize interracial marriage (See Pace v. Alabama), that an originalist or a textualist must believe that the 14th amendment does not prevent laws barring interracial marriage.
The intent of the legislators is not the key at all. The key question is what the body politic believed they were getting. And for that, words matter – but as they were understood, not as we may have assigned them new meanings or contexts now.
I hear you, but it is frustrating when you completely ignore the main point being raised. You only want to play on your terms, and only seem to respond to the parts of the debate where you can make points. Seriously, I have been on this board as long as you have and have always respected your opinion and learned a lot from you, but it is maddening when you let stuff like this go by:
**k9bfriender **was responding directly to your arguments and raised, to my mind, a very good argument; the parallel between the history of interracial marriage and same sex marriage is obvious and begs the question how the intent (or original meaning of the words, if you will) in the first case is different from the second. The text of the 14th amendment says “nor deny to any person within its jurisdiction”; how can this mean that a denial of the benefits of a law to a certain group is constitutional whether or not the body politic finds the group and their beliefs distateful? Did you not respond to this direct response to you because you have k9bfriender on your ignore list? Because you don’t have an answer? Because you you think they are missing the point? Regardless, GD is supposed to be a forum for healthy debate on a board with the goal of fighting ignorance and you should respond when people take up your debate points.
You also don’t address my questions to you on why intent should be used at all (this after years of you getting me to take textualism and strict constructionism more seriously as valid philosophies). You ignored the first time I raised this and it was only after I started getting snarky that you responded with this:
This is a distinction without a difference. What the body politic believed they were getting is by definition their intention when they pass the law. And the question remains: there is no way that the legislators who passed the 14th amendment believed it would be used to allow interracial marriage. In 1868 anti-miscegenation laws existed in almost every state and territory of the union. So what is the difference in this case? Are you going to argue that the Loving v. Virginia ruling was activist?
I have lots of posts to respond to. If I appear to be missing one, please just ask about it.
Because I missed it.
But my answer is: what people thought was happening when the 14th amendment was passed was an elimination of the ability of states to codify racial discrimination.
You argue that we should simply accept the words “any person” to mean that, but of course that’s obviously not what you mean, because (I assume) you don’t believe that it requires six year olds be given the vote. In fact, if it literally means “any person,” then no person can be jailed. They are, after all, persons, and putting them in prison is treating them unequally from those not imprisoned. You might argue that they’ve been convicted of crimes, but there appears no such exception in the words.
No. The legislators may have had many different intentions. Senator A may vote for a law because he took a bribe; Senator B because he reached a compromise with Senator C over another bill; Senator D because he believes his constituents will elect him if he votes the way he does. But the words that they pass have a meaning, a fairly deducible intent based on their text as it is understood at the time it is passed.
That’s the text part of textualism: what did the words mean then? What did people think they were getting?
Fair enough, but I thought I had. I will make sure I am clearer next time.
No, the right to vote is codified and defined elsewhere and it was never given to six year old children as far as I know so it is hard for them to get equal treatment under this law. I do assume that the equal protection of the laws does apply to children when appropriate, so that if the right to vote was given to children that some six year olds could not be excluded due to their race, gender, religion, sexual orientation, or political affiliation. Furthermore, I could see how somebody could argue equal protection applies unborn children, but I would not agree. It would come down to what the definition of person is and I think viability might be an appropriate metric in this argument.
Be all that as it may, we are now getting to the root of the argument…
So, your are saying that textualism is not actually reading the text, but trying to interpret what the text meant to the people who wrote it. I would think this makes you an originalist and not a textualist; is this the legal philosophy you espouse? I only ask because it means that I have misunderstood your legal philosophy for years if true.
When I read the phrase “nor deny to any person within its jurisdiction the equal protection of the laws” and apply it to marriage laws, I assume that any person who is entitled under the law to marry (i.e. above the statutory age of consent, not already married, etc…), that they cannot be denied the benefits of marriage conferred by the state. Since the anti-miscegenation laws remained in force until the 1940s for the majority of the country, I cannot believe that the people who crafted the 14th amendment intended it to apply to interracial marriage any more than same sex marriage. I mean, as k9bfriender pointed out earlier, it took about 100 years for the right to interracial marriage to be discovered in the text or interpreted into the original intent (or original meaning of the text). Why? Was interracial marriage legal in 1868 and nobody by the legislators knew it? Or was the ruling in Loving vs. Virginia an activist decision using your original meaning/intent philosophy? If interracial couples are persons under the 14th amendment, why do you think that homosexuals are not? Is there something in the text of the marriage laws or the 14th amendment that excludes them?
I am about done with this debate, but I would appreciate the answer to these questions as I feel like your legal philosophy (as observed by me over the years) is a bit squishy in this case. This is not what I have come to expect.
Wow, I totally missed that John; thanks for addressing it.
I don’t know how anybody, using any judicial philosphy, could interpret the 14th amendment, and more specifically the equal protection clause (“nor deny to any person within its jurisdiction the equal protection of the laws”), to mean that people cannot be jailed. If anything it says that nobody is above the law.
Sure. But you’re telling me that we should apply those words to one set of circumstances absolutely literally. I’m pointing out the flaw in that approach. I’m saying it disproves the truth of your claim.