California's gay marriage ban struck down as unconstitutional

[DaShi]

Original intent.

[Darius871]

And as for clerks vs. judges. It really doesn't matter.

Who said it mattered?

[Lonestar]

How could this possibly be justified under original intent of a passle of slaveholders in an era where societal mores were much different than those of today?

Fixed it for you(I assume you were talking about the Constitution in general, as opposed to the 14th Amendment which was passed post Civil War).

And you're seriously claiming that you go to a Magnet school?


If we married ourselves to "original intent" then we wouldn't see federal funding for education, science, intelligence services, or a large peacetime army. As it is the drafters of the Constitution were smart enough to create a framework that had a lot of wiggle room. They even passed an Amendment in the Bill of Rights explicitly stating that just becase a right isn't explicitly stated doesn't mean it doesn't exist.

As it was the Judge ruled based on the 14th Amendment which pretty explicitly grants equal protection under the law to everyone. If you start magically saying that "equal protection" and "shall not deprive of life, liberty, or property" doesn't mean what it means, then you should get along with the "the right to bear arms shall not be infringed" doesn't mean what it says crowd.

That you're fighting the idea of gays being allowed to be married is kinda indicating to me you don't hang around with the "raarr ban all guns" crowd. But that's just a wild leap on my part.

[Zevico]

"If we married ourselves to "original intent" then we wouldn't see federal funding for education, science, intelligence services, or a large peacetime army. As it is the drafters of the Constitution were smart enough to create a framework that had a lot of wiggle room. They even passed an Amendment in the Bill of Rights explicitly stating that just becase a right isn't explicitly stated doesn't mean it doesn't exist."

Heaven forbid that you should amend the constitution to achieve all these things. Why have a constitution at all? Just leave the big decisions to the judiciary.

[Lonestar]

Heaven forbid that you should amend the constitution to achieve all these things. Why have a constitution at all? Just leave the big decisions to the judiciary.

Constitutional Amendments happen once in, well, 2 decades or thereabouts. The argument has been successfully made in court that the wording of the Constitution DOES allow for those things, since so much can be shoveled in under the certain clauses(the interstate commerce clause, or that if we don't make our kids smart the Soviets will bomb us from orbit so it's a defense issue).

If we want to REALLY hang ourselves on original intent, it gets murkier because Presidents like James Monroe supported stuff that wasn't explicitly a federal power(in fatc he believe a Constitutional amendment allowing federal monies for interstate roads was unneeded because he felt the power already existed...even if it was explicitly mentioned). You have folks like Alexander Hamilton creating central banks, a power that was shoveled in under the "interstate commerce" clause. Or Jefferson buying a ****load of land and framing it as a treaty with France.

Of course, HC's complaint is that "equal protection" doesn't really mean that, since it was written in an era where Women weren't allowed to vote and Senators were appointed by the States.

[Zevico]

The doctrine of original intent does not require that there be conclusive evidence of a particular intended construction of a constitutional provision. It requires that the construction of the constitution be consistent:
(1) with that intent, where it exists; or, if this is not possible;
(2) with the possible intended constructions reasonably attributable to the provision in question; and if this is not possible
(3) contemporary value judgements on how the constitution should be construed.
Progressivists skip straight to (3). In so doing they destroy the premise that the constitution preserves and is founded upon the rule of law.

I do not pretend that every constitutional question can be conclusively answered according to the originalist doctrine. But some can be.

And if you don't like the answer, effect a change in the constitution. Change the amendment process too if you think fit-better yet, let the judiciary change it for you if it's so hard to get the people to agree to it. After all, why not? The contemporary meaning of the words is a matter for the judiciary to decide. They may decide them to mean one thing one day and another the next. Why not change the amendment clause? Or any other clause? Why not just strike down laws the judiciary does not like? Or create new ones? If the words of the Constitution are meaningless, as you contend, then this is permissible. The Constitution becomes a cipher for the political preferences of the judiciary.

[Imran Siddiqui]

Original intent sucks as a mode for interpreting the Constitution and there is really no evidence that the framers of the Constitution were set on having their intent govern the document throughout the ages. The Jeffersonians (Jefferson himself was in France) were very much in favor of reinterpretation of the text based on the age (as Jefferson himself would do when he negotiated to buy the Louisiana Purchase).

I mean, heck, there is no proof that the power to strike down "unconstitutional" laws was supposed to be granted to the judiciary (The Democratic-Republicans, ie the Jeffersonians, weren't all that pleased when Chief Justice Marshall found that power).

[Zevico]

Original intent sucks as a mode for interpreting the Constitution

1. This is not an argument.

there is really no evidence that the framers of the Constitution were set on having their intent govern the document throughout the ages.

I am not an expert in American constitutional law.

However, I would suggest that the framers of any constitution, or any statute for that matter, intend for it to mean something. When a provision for the amendment of that constitution exists, moreover, I would suggest that they intended it to be the proper recourse for any amendment of the constitution.

The Jeffersonians (Jefferson himself was in France) were very much in favor of reinterpretation of the text based on the age (as Jefferson himself would do when he negotiated to buy the Louisiana Purchase).

I am not aware of the originalist arguments for or against this matter.

I mean, heck, there is no proof that the power to strike down "unconstitutional" laws was supposed to be granted to the judiciary (The Democratic-Republicans, ie the Jeffersonians, weren't all that pleased when Chief Justice Marshall found that power).

It is quite possible to argue that a Constitution has little meaning in the absence of the Marbury v Madison principle, as Marshall CJ pointed out. In this sense it may be said that the intentions of the framers are not relevant per se, but what is relevant is what would be understood of the meaning and effect of the document upon its proclamation.

[OneFootInTheGrave]

Clearly, only bisexuals and asexuals should become judges.

a virgin judge should have presided over the case, even if he was a virgin homosexual judge

[Zevico]

Perhaps an adolescent or infant would have done the job better?

[Darius871]

If you start magically saying that "shall not deprive of life, liberty, or property" doesn't mean what it means...

*shudders* You almost had me until this train wreck. You conveniently left out the operative remainder of that clause, which says "without due process of the law," i.e. unless there is due process, meaning the government can freely deprive anyone of any "liberty" it chooses, no matter how "fundamental" the type of liberty, so long as the legal process that effectuates that deprivation is one that is "due" (i.e. there are legislative, administrative, or judicial pronouncements giving adequate notice of proscribed conduct that could result in the deprivation of liberty, sufficient contacts with an area to be subject to its courts' jurisdiction, adequate notice of a pending deprivation of liberty for some alleged violation, opportunity to be heard by a neutral adjudicator with basic procedural safeguards, etc.). It takes some of the most absurd mental gymnastics imaginable to pretend that ["you can't deprive of liberty unless it's done with due process, in which case it's a-ok"] = ["you know what, some kinds of liberty you just can't touch regardless of whether or not you use due process"]. So no, the only one here who's saying the Due Process Clause "doesn't mean what it means" is you, and this is coming from someone who is hardly an originalist. There comes a point where even a progressive can't ignore propositions flatly contrary to plain text.

:headdesk:

[The Mad Monk]

Schwarzenegger declined to defend the law, he's against Prop 8.

Of course he did, bodybuilding is the gayest sport ever.

[Zevico]

I think that even if Marbury is a fiction in the American Constitution, it is a fiction preferable to progressivism which, as you appear to recognise, is also a fiction, in so far as there was disagreement as to whether the constitution was to be interpreted by the courts at all (and hence as to the consequences of the introduction of a written constitution).

The consequences of progressivism are that we look to the social or political preferences of the judiciary in any given generation in asserting the foundation of a constitutional principle. That consequence is an ending to certainty and is, in my view, an indication of distrust towards the citizenry.

The consequence of originalism (as it is called in America) or legalism (as it is called in Australia) is that, where possible, answers to questions of constitutional ambiguity can exist and continue to exist as time goes on with a degree of certainty. That does not occur all the time: sometimes there is no clear answer to a constitutional question. If that is so then justice or policy does come into play. However it is not to the point, in my view, to contend that the meaning of the text is unpalatable and to contend that it must be changed, not by the people, but by the judiciary, as a result.

So I suppose I am a progressivist with respect to Marbury, but only Marbury, because it creates a degree of certainty in constitutional law not found in other methods of constitutional interpretation and its consequences (if I were an American--thankfully we Aussies created a constitution premised on Marbury so this issue does not arise).

[Dinner]

[MrFun]

So people who are fanatical about original intent believe that we should govern ourselves based on eighteenth century understanding of civil rights rather than our modern understanding of civil rights?