I don’t dispute that it reaches the “right” result. If anything, this is a slam on my own judicial philosophy. A “living constitutionalist” could look at this and say that we have “evolved.”
For a Justice like Scalia to support Loving and anti-Affirmative Action programs on 14th Amendment grounds seems to be against the text of the Constitution which directly permits discrimination based upon race and gender.
The substance is that your approach and attitude are incorrect, and your reason for asking is not a valid one. You’re (figuratively) bringing a frivolous case. Nothing about racism or sexism required.
Just to clarify this point, the Seventh Amendment means what it says: as long as federal jurisdiction otherwise exists, any suit at law for damages in federal court can be tried to a jury, as long as the amount in controversy is over the now-minimal $20 threshold. Certainly, the parties can waive a jury and accept trial before a judge if they wish.
This is one of the reasons the Bill of Rights has not been completely incorporated against the states. Incorporating the Seventh Amendment could potentially impose an expensive obligation on state courts’ civil-case systems.
Nonsense. The judiciary do not rule by fiat or decree or anything else. They have no power to enact a single law.
Their only power is to interpret the laws that are enacted by the legislature. You may not like or agree with their interpretations. But that doesn’t mean they’re making things up out of nothing.
You keep making that bald declaration in different ways. Again, please address the substance of my argument.
A number of people have addressed the substance of your argument by telling you that it’s wrong. The fact that it’s possible for you to break a law doesn’t mean that you’re allowed to break a law.
Then nobody has addressed the question because until the 15th amendment was ratified, it was perfectly legal for a state to deny the right to vote to male persons based upon race and many did so. The 14th Amendment failed to provide that protection.
No state was “breaking the law” by denying the right to vote to blacks or else the 15th Amendment would not have been necessary, just two short years later.
Proving strict necessity is not a part of amending the Constitution, so the fact that it happened does not mean it was necessary. There were plenty of people who believed that the 24th Amendment was unnecessary, but nevertheless supported its ratification. (And indeed, the Supreme Court did take their side and strike down the remaining poll taxes just two years later.)
Cite that this is in any way analogous? Again, we had Congressman, even those supporting universal male suffrage, lamenting on the floor that this was all they could hope to get out of the 14th Amendment. Dangit, we just cannot get these states to sign on if it means blacks vote, but we can get this limitation of representation provision. The rights of women to vote were not discussed and assumed to be proper, even after enactment of the 14th Amendment.
Two years later nobody said, “Well, we think this is just a bunch of surplusage, but, hey, nothing else to do, so let’s just pass the 15th Amendment to make sure.”
Given that, clearly the drafters had something else in mind for equal protection and due process. You have to admit that if we were not talking about something to modern sensibilities that seems so basic and decent, my argument would be bulletproof and yours would be silly.
Is “construment” a typo, or a word that you law-talking guys tend to be familiar with?
If the former, please provide the word you intended that we read.
If the latter, please do a better job of elucidating wtf you’re talking about in that sentence.
TIA.
Sorry “construed.”