Justice Antony Kennedy retiring

[bacchi]

The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.

One quick correction-  There is another option for amending the constitution, though I do not believe it has been successfully used.  It is a state's convention (which can be very limited in scope, only for the approval of one amendment if desired) and that an be forced by a referendum vote at the state level initiated by petition.

It is basically the only way anyone is going to get term limits for congress amended into the constitution, since congress won't fire themselves.

There are several states calling for a states convention on a variety of issues.  I think it is about time that happened...  :/

You are correct.

The Constitution has never been amended via an Article V Convention of States.

It's not decided whether a State's convention can be limited to only one issue.

https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution

While there have been calls for an "Article V Convention" based on a single issue such as the balanced budget amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue

[Jrr85]

14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.

But you just argued against applying that general principle with respect to section 8.  So somebody has to decide on when it applies and when it doesn't.  You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.

No, I didn't.  I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life.  Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here.  Because even if it is equal treatment it doesn't feel equal.

But you are making up a distinction.  A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers.  Same with single sex bathrooms?  Why are governments not violating the equal protection law when they have single sex bathrooms? 

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

I'm pretty sure that's going to happen whether I want it to or not.  Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences.  I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.

Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives.  But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that. 

ETA:  Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right.  You only have to worry about judges stopping leftist legislation.  But there's no reason that has to be the case if the left keeps trying to make judges superlegislators.  If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution.  I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy.  Even if that would be a few decades down the line, it's worth not going down that path.

You're still not getting it.  I'm not arguing that justices shouldn't adhere to the constitution.  I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so.  Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.

They are not interpreting it in a way that binds them in any meaningful manner.  If you have somebody who is an originalist or textualist, you can ask them in 2000, 2008, or 2016 whether the equal protection clause mandates that same sex marriages be recognized, and they would give you the same answer.  For other approaches, that's not the case.  They are either answering based on their personal preferences (in which case, do we really want 5 people exercising such enormous, unchecked power?), or maybe they are answering based on what they think people would vote for (in which case, do they really have this data, and even if they did, why not just let the elected representatives do it?), or they are maybe adopting some general philosophy that may or may not match their personal preferences but that they think is a good standard for whatever reason (in which case, again that is putting a lot of power into the hands of a few; do you want justices deciding that Ayn Rand is who we should look to for determining what a good result is?).

Certainly there are cases where it's so close a call that you are going to have judge's bias's come into it.  But if you don't at least have a standard that judges can be judged against, then it's inevitable that you end up with a completely politicized court and even before then, you have people claiming that just applying the constitution or statute in straightforward cases is a political act. 

[GuitarStv]

An originalist wouldn't recognize any marriage, straight or gay.  It's not in the constitution, the government has no place being involved in it.

[Jrr85]

An originalist wouldn't recognize any marriage, straight or gay.  It's not in the constitution, the government has no place being involved in it.

More or less correct that the federal government doesn't have much of a role w/r/t marriage, but it's still a contract, so it could come up with respect to the contracts clause (unlikely, but if a connected person tried to get his/her specific marriage dissolved through a state legislature the U.S. constitution would prohibit it) and there would be full faith and credit questions and congress would of course have to make choices as to what constitutes a marriage and what impacts that has within areas of its actual jurisdiction.

[shenlong55]

14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.

But you just argued against applying that general principle with respect to section 8.  So somebody has to decide on when it applies and when it doesn't.  You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.

No, I didn't.  I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life.  Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here.  Because even if it is equal treatment it doesn't feel equal.

But you are making up a distinction.  A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers.  Same with single sex bathrooms?  Why are governments not violating the equal protection law when they have single sex bathrooms? 

I'm not making a distinction between citizens, I'm making a distinction between their situations.  Ideally, we'd do neither but I think a distinction in situations survives the equal protection clause because it could still potentially apply to all citizens at some point in their life.  Every citizen can be eligible for section 8 if their income drops low enough, but gay men cannot ever be eligible for a marriage license if the state only recognizes marriage contracts between opposite sex citizens.

I already tried to explain the restroom thing above.  I really don't understand how the government providing a restroom to all citizens is somehow unequal to you. How about you explain how governments are violating the equal protection clause when they provide single sex bathrooms?

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

I'm pretty sure that's going to happen whether I want it to or not.  Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences.  I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.

Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives.  But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that. 

ETA:  Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right.  You only have to worry about judges stopping leftist legislation.  But there's no reason that has to be the case if the left keeps trying to make judges superlegislators.  If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution.  I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy.  Even if that would be a few decades down the line, it's worth not going down that path.

You're still not getting it.  I'm not arguing that justices shouldn't adhere to the constitution.  I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so.  Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.

They are not interpreting it in a way that binds them in any meaningful manner.  If you have somebody who is an originalist or textualist, you can ask them in 2000, 2008, or 2016 whether the equal protection clause mandates that same sex marriages be recognized, and they would give you the same answer.  For other approaches, that's not the case.  They are either answering based on their personal preferences (in which case, do we really want 5 people exercising such enormous, unchecked power?), or maybe they are answering based on what they think people would vote for (in which case, do they really have this data, and even if they did, why not just let the elected representatives do it?), or they are maybe adopting some general philosophy that may or may not match their personal preferences but that they think is a good standard for whatever reason (in which case, again that is putting a lot of power into the hands of a few; do you want justices deciding that Ayn Rand is who we should look to for determining what a good result is?).

Certainly there are cases where it's so close a call that you are going to have judge's bias's come into it.  But if you don't at least have a standard that judges can be judged against, then it's inevitable that you end up with a completely politicized court and even before then, you have people claiming that just applying the constitution or statute in straightforward cases is a political act.

They are bound by the text of the constitution and the laws passed by the legislature as well as precedent and other similar judicial standards.  The same things that bind your favored justices.  If you had asked me in 2000, 2008 or 2016 whether the equal protection clause mandates that same sex marriages be recognized I would have given you the same answer (yes).  If you had asked me in 1960 or 1860 in fact I would have given you the same answer even then (had I been alive at the time).  It's not that I would have interpreted that clause differently at different times, I just interpret it differently than you period.

[Jrr85]

14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.

But you just argued against applying that general principle with respect to section 8.  So somebody has to decide on when it applies and when it doesn't.  You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.

No, I didn't.  I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life.  Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here.  Because even if it is equal treatment it doesn't feel equal.

But you are making up a distinction.  A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers.  Same with single sex bathrooms?  Why are governments not violating the equal protection law when they have single sex bathrooms? 

I'm not making a distinction between citizens, I'm making a distinction between their situations.  Ideally, we'd do neither but I think a distinction in situations survives the equal protection clause because it could still potentially apply to all citizens at some point in their life.  Every citizen can be eligible for section 8 if their income drops low enough, but gay men cannot ever be eligible for a marriage license if the state only recognizes marriage contracts between opposite sex citizens.

I already tried to explain the restroom thing above.  I really don't understand how the government providing a restroom to all citizens is somehow unequal to you. How about you explain how governments are violating the equal protection clause when they provide single sex bathrooms?

I don't think they are.  Let's try it this way.  Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

I'm pretty sure that's going to happen whether I want it to or not.  Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences.  I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.

Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives.  But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that. 

ETA:  Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right.  You only have to worry about judges stopping leftist legislation.  But there's no reason that has to be the case if the left keeps trying to make judges superlegislators.  If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution.  I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy.  Even if that would be a few decades down the line, it's worth not going down that path.

You're still not getting it.  I'm not arguing that justices shouldn't adhere to the constitution.  I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so.  Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.

They are not interpreting it in a way that binds them in any meaningful manner.  If you have somebody who is an originalist or textualist, you can ask them in 2000, 2008, or 2016 whether the equal protection clause mandates that same sex marriages be recognized, and they would give you the same answer.  For other approaches, that's not the case.  They are either answering based on their personal preferences (in which case, do we really want 5 people exercising such enormous, unchecked power?), or maybe they are answering based on what they think people would vote for (in which case, do they really have this data, and even if they did, why not just let the elected representatives do it?), or they are maybe adopting some general philosophy that may or may not match their personal preferences but that they think is a good standard for whatever reason (in which case, again that is putting a lot of power into the hands of a few; do you want justices deciding that Ayn Rand is who we should look to for determining what a good result is?).

Certainly there are cases where it's so close a call that you are going to have judge's bias's come into it.  But if you don't at least have a standard that judges can be judged against, then it's inevitable that you end up with a completely politicized court and even before then, you have people claiming that just applying the constitution or statute in straightforward cases is a political act.

They are bound by the text of the constitution and the laws passed by the legislature as well as precedent and other similar judicial standards.  The same things that bind your favored justices.  If you had asked me in 2000, 2008 or 2016 whether the equal protection clause mandates that same sex marriages be recognized I would have given you the same answer (yes).  If you had asked me in 1960 or 1860 in fact I would have given you the same answer even then (had I been alive at the time).  It's not that I would have interpreted that clause differently at different times, I just interpret it differently than you period.

  You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation.  It's a pretty reasonable argument based on just the text.  I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.   

[Davnasty]

An originalist wouldn't recognize any marriage, straight or gay.  It's not in the constitution, the government has no place being involved in it.

I've been arguing that the right to same sex marriage is protected by the constitution in that opposite sex marriage receives legal benefits and to deny those benefits to certain people would be unconstitutional. There is no need for a specific type of contract to be discussed in the constitution in order for the constitution to dictate that it must be applied too all citizens equally.

But my idealist feelings are actually more in line with this. I would argue that giving legal benefits to someone for being married is in itself unfair because it gives unequal treatment to those who are not able to become married. On the other hand this is more similar to the section 8 housing subsidies discussed earlier where everyone has the right to the same benefits but their ability to receive those benefits is based on their current state. As in, a person with less than x income can receive benefits/a person who is married can receive benefits. I don't think it's fair that marriage is a required state to receive those benefits but I also don't think there is a constitutional argument against it.

[Chris22]

An originalist wouldn't recognize any marriage, straight or gay.  It's not in the constitution, the government has no place being involved in it.

I've been arguing that the right to same sex marriage is protected by the constitution in that opposite sex marriage receives legal benefits and to deny those benefits to certain people would be unconstitutional. There is no need for a specific type of contract to be discussed in the constitution in order for the constitution to dictate that it must be applied too all citizens equally.

But my idealist feelings are actually more in line with this. I would argue that giving legal benefits to someone for being married is in itself unfair because it gives unequal treatment to those who are not able to become married. On the other hand this is more similar to the section 8 housing subsidies discussed earlier where everyone has the right to the same benefits but their ability to receive those benefits is based on their current state. As in, a person with less than x income can receive benefits/a person who is married can receive benefits. I don't think it's fair that marriage is a required state to receive those benefits but I also don't think there is a constitutional argument against it.

Who is not able to become married?

[Davnasty]

14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.

But you just argued against applying that general principle with respect to section 8.  So somebody has to decide on when it applies and when it doesn't.  You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.

No, I didn't.  I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life.  Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here.  Because even if it is equal treatment it doesn't feel equal.

But you are making up a distinction.  A perfectly reasonable distinction, but if you are not going by some standard, then you are just putting the justices in the position of policy makers.  Same with single sex bathrooms?  Why are governments not violating the equal protection law when they have single sex bathrooms? 

I'm not making a distinction between citizens, I'm making a distinction between their situations.  Ideally, we'd do neither but I think a distinction in situations survives the equal protection clause because it could still potentially apply to all citizens at some point in their life.  Every citizen can be eligible for section 8 if their income drops low enough, but gay men cannot ever be eligible for a marriage license if the state only recognizes marriage contracts between opposite sex citizens.

I already tried to explain the restroom thing above.  I really don't understand how the government providing a restroom to all citizens is somehow unequal to you. How about you explain how governments are violating the equal protection clause when they provide single sex bathrooms?

I don't think they are.  Let's try it this way.  Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?

If there was another legal contract designed specifically for same sex couples that gave all of the same benefits as opposite sex marriage then this would be an appropriate analogy.

[Davnasty]

An originalist wouldn't recognize any marriage, straight or gay.  It's not in the constitution, the government has no place being involved in it.

I've been arguing that the right to same sex marriage is protected by the constitution in that opposite sex marriage receives legal benefits and to deny those benefits to certain people would be unconstitutional. There is no need for a specific type of contract to be discussed in the constitution in order for the constitution to dictate that it must be applied too all citizens equally.

But my idealist feelings are actually more in line with this. I would argue that giving legal benefits to someone for being married is in itself unfair because it gives unequal treatment to those who are not able to become married. On the other hand this is more similar to the section 8 housing subsidies discussed earlier where everyone has the right to the same benefits but their ability to receive those benefits is based on their current state. As in, a person with less than x income can receive benefits/a person who is married can receive benefits. I don't think it's fair that marriage is a required state to receive those benefits but I also don't think there is a constitutional argument against it.

Who is not able to become married?

Idk, assholes? :)

I don't really want to take this off on another tangent but my point was that legal benefits through marriage is unfair. I suppose you could make the argument that incentivizing marriage improves the odds that a child will have two parents rather than one which is a benefit to society.

[shenlong55]

I don't think they are.  Let's try it this way.  Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?

I do not think it is constitutionally permissible for the government to provide only male restrooms.  If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens).  I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses.  I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.

You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation.  It's a pretty reasonable argument based on just the text.  I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.

Again, I would argue that I am recognizing original intent.

[Jrr85]

I don't think they are.  Let's try it this way.  Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?

I do not think it is constitutionally permissible for the government to provide only male restrooms.  If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens).  I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses.  I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.

  You're not answering the question.  Why is it permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?  Or if it's easier, why does equal protection require that women be allowed to marry women just like men, but not that they be allowed access to men's bathrooms?

You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation.  It's a pretty reasonable argument based on just the text.  I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.

Again, I would argue that I am recognizing original intent.

I'm not sure exactly what you are referring to by "original intent", but I do know that you're not using it the same way that people normally use it in the context of discussions of the constitution and its interpretation/application. 

I think, but do not know, that you are making an argument that fits within your morals/policy preferences and then coming up with an argument of how it's not clearly contrary to the text in the constitution.  Which is the same thing I am doing with respect to the progressive taxation argument.  And which is the same thing people could use to make all sorts of arguments. 

[robartsd]

If there was another legal contract designed specifically for same sex couples that gave all of the same benefits as opposite sex marriage then this would be an appropriate analogy.

For a time there was in California.

Around the time of DOMA, California had a voter initiative define marriage as 1 man and 1 woman (Proposition 22). California's legislature later decided to give the rights of marriage to same sex couples under a different name (Registered Domestic Partnership). California courts ruled that having a different name made it unequal kicking off the first gay marriages in California. Opposition to gay marriage got a state constitution amendment on the ballot in an attempt to reverse the decision (Proposition 8). In the same year, the US Supreme Court overturned DOMA (I agree that there is no constitutional basis for the Federal government to fail to recognize a same-sex marriage legally entered into in any of the states) and Proposition 8 (mostly objecting to the right of those who supported Proposition 8 to bring the case - in my opinion a very bad precedent for rule of law - would have been much better to come the the later conclusion that same-sex marriage was a right subject to the equal protection clause). It would have been very interesting legally if the US Supreme Court had found DOMA unconstitutional, but upheld Proposition 8 - would the US government have recognized California's registered domestic partnerships the same way it recognized same-sex marriages from other states? Personally I think it would be better if "marriage" were a religious word (each person being free to use the definition that fit their religious views) and the legal entity having a separate name that applied to everyone ("civil union" seems like the best choice for this).

[shenlong55]

I don't think they are.  Let's try it this way.  Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?

I do not think it is constitutionally permissible for the government to provide only male restrooms.  If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens).  I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses.  I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.

You're not answering the question.  Why is it permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?  Or if it's easier, why does equal protection require that women be allowed to marry women just like men, but not that they be allowed access to men's bathrooms?

Because a male restroom and a female restroom are pretty much functionally equivalent whereas individual a and individual b are not.

You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation.  It's a pretty reasonable argument based on just the text.  I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.

Again, I would argue that I am recognizing original intent.

I'm not sure exactly what you are referring to by "original intent", but I do know that you're not using it the same way that people normally use it in the context of discussions of the constitution and its interpretation/application. 

I think, but do not know, that you are making an argument that fits within your morals/policy preferences and then coming up with an argument of how it's not clearly contrary to the text in the constitution.  Which is the same thing I am doing with respect to the progressive taxation argument.  And which is the same thing people could use to make all sorts of arguments.

I think we're just going to have to agree to disagree on this point.  Although I will say that I am definitely arguing that equal treatment under the law is required by the constitution, not just "not clearly contrary" to it.

[FIPurpose]

And we should also mention that every Scalian Originalist also recognizes that the 2nd amendment was never intended to be used for personal gun ownership rights. That's why Scalia never overstepped the bounds of the Constitution and was a pure Originalist...

[Jrr85]

I don't think they are.  Let's try it this way.  Why don't you explain how you rely on the constitution to determine that it's permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?

I do not think it is constitutionally permissible for the government to provide only male restrooms.  If male and female restrooms are both provided then the government is providing an equal benefit to both males and females (theoretically, this covers all citizens).  I similarly do not think that it is constitutionally permissible for the government to provide only heterosexual marriage licenses.  I do think it would be constitutionally permissible for the government to provide a differently named license for homosexual marriages so long as it provided the same benefits, though I do not think that it should do so.

You're not answering the question.  Why is it permissible to distinguish between males and females when it comes to bathrooms/showers but not when it comes to marriage?  Or if it's easier, why does equal protection require that women be allowed to marry women just like men, but not that they be allowed access to men's bathrooms?

Because a male restroom and a female restroom are pretty much functionally equivalent whereas individual a and individual b are not.

You can make that argument just like I can make the argument that the equal protection clause prohibits progressive taxation.  It's a pretty reasonable argument based on just the text.  I would still say that if you condone those arguments though, you are basicallyh leaving the court unbound by the constitution, because you can make all sorts of arguments based on the text if you are completely unbound to recognize any original intent.

Again, I would argue that I am recognizing original intent.

I'm not sure exactly what you are referring to by "original intent", but I do know that you're not using it the same way that people normally use it in the context of discussions of the constitution and its interpretation/application. 

I think, but do not know, that you are making an argument that fits within your morals/policy preferences and then coming up with an argument of how it's not clearly contrary to the text in the constitution.  Which is the same thing I am doing with respect to the progressive taxation argument.  And which is the same thing people could use to make all sorts of arguments.

I think we're just going to have to agree to disagree on this point.  Although I will say that I am definitely arguing that equal treatment under the law is required by the constitution, not just "not clearly contrary" to it.

This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution.  Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them).  But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective.  If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption,      or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.

[FIPurpose]

This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution.  Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them).  But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective.  If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption,      or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.

I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.

The problem that comes up with originalism is that when you're trying to come up with general protections that will be relevant for centuries to come, you are going to necessarily write something that is generic so as to cover ideas and cases that you have no idea about. How do we apply freedoms of speech and privacy to modern cell phones? The original authors had no idea that these things would exist, but we still use originalist arguments to say that "well, their intention in this matter would be..." and you can more or less make up whatever you want as long as it sounds good enough in your head. And what are you going to argue for? Your natural tendencies and biases.

So you've been arguing that the 14th obviously can't extend to protect other classes because it was written for a specific purpose, and that since we had to ratify the 19th, obviously an idea like the 19th amendment is not covered in the 14th so you can't extend the 14th to include things like homosexual marriages.

Except the 19th was written not because the 14th was deficient, but because our congressmen were deficient. We can obviously see that things such as Japanese Internment are obvious violations of the 14th amendment, but they still happen anyways. The original authors' purpose can and should be bigger than simply the original purpose of their writing.

So when you've arbitrarily decided that only straight people can get married, and thus collect a huge a tax benefit, and gay people can't (and not to mention the sodomy laws still on the books). How can you call that anything but denial of equal protection?

I think you're trying to find a hypothetical situation that would be an obvious overreach of the 14th, but I don't think you're succeeding. If I understand correctly, you're saying that without originalism, you could claim a progressive tax system is unfair treatment. But how much money you earn isn't a part of who you are, and those laws are applied equally across all Americans. You're attempting a slippery slope argument: https://en.wikipedia.org/wiki/Slippery_slope

That is you're saying "well if you give equal protection to x, then by the same logic you have to do this obvious thing no one would agree with" And the reason this works, is because the court is allowed to use common sense. Anyone can see that it wouldn't make sense to extend the 14th to include progressive tax systems (and the court has already decided the constitutionality of progressive taxes.) I'm sure you could make wild claims about certain conclusions you could make from originalism, but no here is going to present them because they would equally be a slippery slope fallacy.

[Jrr85]

This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution.  Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them).  But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective.  If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption,      or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.

I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.

  You think the tax laws are applied fairly and equally to all Americans.  I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair.  But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are). 

The problem that comes up with originalism is that when you're trying to come up with general protections that will be relevant for centuries to come, you are going to necessarily write something that is generic so as to cover ideas and cases that you have no idea about. How do we apply freedoms of speech and privacy to modern cell phones? The original authors had no idea that these things would exist, but we still use originalist arguments to say that "well, their intention in this matter would be..." and you can more or less make up whatever you want as long as it sounds good enough in your head. And what are you going to argue for? Your natural tendencies and biases.

  Again, originalism doesn't provide a clear cut answer to every issue.  It ties the judges to some kind of standard other than "what would I prefer the law to be".  How the right to privacy applies to new technology is an area that people can differ on in good faith while still following some form of what is generally recognized as originalism.  Whether the equal protection clause mandates that same sex marriage be recognized or whether progressive taxation is prohibited is not an area that people can differ in good faith while following some form of what is generally recognized as originalism.  Mandating that same sex marriage be recognized is a legislative act.  The fact that I think it is good policy doesn't change the fact that it's a bad idea for the supreme court to do it.  It's one thing with people's natural tendencies and biases affect close cases; it's another when the court drops even the pretense of not legislating.   

So you've been arguing that the 14th obviously can't extend to protect other classes because it was written for a specific purpose, and that since we had to ratify the 19th, obviously an idea like the 19th amendment is not covered in the 14th so you can't extend the 14th to include things like homosexual marriages.

Except the 19th was written not because the 14th was deficient, but because our congressmen were deficient. We can obviously see that things such as Japanese Internment are obvious violations of the 14th amendment, but they still happen anyways. The original authors' purpose can and should be bigger than simply the original purpose of their writing.

 

That's an argument, and it's an argument explicitly for legislating from the bench.  "I don't like the job our elected representatives are doing and think we'd get a better result by having 9 judges with lifetime appointments and therefore insulation from the political process decide certain policy questions."  I get the appeal, but I think it's a bad idea, and I think people should consider that they migth not always like the way the supreme court legislates before explicitly arguing to break down the norm of being bound by the intent of the constitution.  Again, no matter who you are and where you fall on the political spectrum, there are a lot of things that can be dreamed up that can be facially consistent with the constitution that you won't like.   

So when you've arbitrarily decided that only straight people can get married, and thus collect a huge a tax benefit, and gay people can't (and not to mention the sodomy laws still on the books). How can you call that anything but denial of equal protection?

  First, I haven't arbitrarily decided anything.  Traditionally, marriage has been the fundamental building block of western societies and I do acknowledge that it does not violate the equal protection clause to only recognize traditional marriages.  That's not the same thing as saying the government shouldn't recognize same sex marriages.  I don't think there is a particularly good argument not to.  But that's not the same thing as thinking it's a good idea for supreme court justices to make policy and legislate from the bench. 

I think you're trying to find a hypothetical situation that would be an obvious overreach of the 14th, but I don't think you're succeeding. If I understand correctly, you're saying that without originalism, you could claim a progressive tax system is unfair treatment. But how much money you earn isn't a part of who you are, and those laws are applied equally across all Americans. You're attempting a slippery slope argument: https://en.wikipedia.org/wiki/Slippery_slope

That is you're saying "well if you give equal protection to x, then by the same logic you have to do this obvious thing no one would agree with" And the reason this works, is because the court is allowed to use common sense. Anyone can see that it wouldn't make sense to extend the 14th to include progressive tax systems (and the court has already decided the constitutionality of progressive taxes.) I'm sure you could make wild claims about certain conclusions you could make from originalism, but no here is going to present them because they would equally be a slippery slope fallacy.

 

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.     

[GuitarStv]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

[Jrr85]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be. 

[Davnasty]

This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution.  Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them).  But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective.  If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption,      or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.

I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.

  You think the tax laws are applied fairly and equally to all Americans.  I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair.  But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are). 

Or not allowing legal benefits to someone because they are gay.

Your opinion is still following the assumption that allowing all males to marry females = equality and several analogies have been given that you didn't acknowledge, so I'm going to try again with something more hypothetical.

Let's say we have single payer healthcare and the government decides to pay for some drugs but not others. There are two equivalent diseases that cause the same symptoms but each one only effects people of a specific race. Race A is effected by disease A and cure A is covered by the government. Race B is effected by disease B but cure B is not covered by the government. Would you consider this to be an equal protection regardless of race? After all, everyone can get cure A paid for by the government.

[FIPurpose]

You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.

What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.

Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.

I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.

Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."

The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.

[GuitarStv]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

[BTDretire]

 I couldn't read this whole thread,
but I hope when Ginsberg wakes up,
she decides it's her time to retire also.

[Jrr85]

This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution.  Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them).  But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective.  If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption,      or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.

I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.

  You think the tax laws are applied fairly and equally to all Americans.  I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair.  But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are). 

Or not allowing legal benefits to someone because they are gay.

Your opinion is still following the assumption that allowing all males to marry females = equality and several analogies have been given that you didn't acknowledge, so I'm going to try again with something more hypothetical.

Let's say we have single payer healthcare and the government decides to pay for some drugs but not others. There are two equivalent diseases that cause the same symptoms but each one only effects people of a specific race. Race A is effected by disease A and cure A is covered by the government. Race B is effected by disease B but cure B is not covered by the government. Would you consider this to be an equal protection regardless of race? After all, everyone can get cure A paid for by the government.

I think you are missing that we are generally talking about two different questions.  When you ask about equal protection, you generally seem to be asking the question: "Do I think this is equal protection? Or equality? Or the "right" result"?"  My answer to that one is I'd have to have more information.  How many people are affected by Disease A.  How many are affected by Disease B.  What the the costs of the preferred treatment of Disease A and Disease B.  What are the costs of the second best alternative.  Etc.

The question I am trying to get you to see is a different question:  "Does this violate the equal protection clause of the U.S. Constitution?"  If you're looking at it from an originalist perspective, the answer to that one is no, unless race was used as a deciding factor in determining which treatments to cover. 

[Jrr85]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution. 

[Jrr85]

You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.

What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.

Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.

I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.

Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."

The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.

I am not the one being obtuse.  And I recognize you are not purposefully being obtuse.  But you keep coming at the constitution from a "what do I think is right" perspective.  It's a fish can't see the water problem.  You can't seem to envision any other way of approaching it because 99% of the time when people are talking about the constitution, unless they are of a particular intellectual/philosophical bent, that is the subconscious position they are arguing from.  Pretty much everybody initially is bothered when something obviously bad or stupid is constitutional (which happens a lot) or when something they believe to be good and smart is unconstitutional (which also happens alot, although obviously good or smart ideas are much, much more rarely unconstitutional than obviously bad things being constitutional).  But once everybody openly embraces the idea that the constitution is just there to support their preferred policy positions, you can't have effective separation of powers.   

[GuitarStv]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias.  A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.

[FIPurpose]

You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.

What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.

Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.

I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.

Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."

The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.

I am not the one being obtuse.  And I recognize you are not purposefully being obtuse.  But you keep coming at the constitution from a "what do I think is right" perspective.  It's a fish can't see the water problem.  You can't seem to envision any other way of approaching it because 99% of the time when people are talking about the constitution, unless they are of a particular intellectual/philosophical bent, that is the subconscious position they are arguing from.  Pretty much everybody initially is bothered when something obviously bad or stupid is constitutional (which happens a lot) or when something they believe to be good and smart is unconstitutional (which also happens alot, although obviously good or smart ideas are much, much more rarely unconstitutional than obviously bad things being constitutional).  But once everybody openly embraces the idea that the constitution is just there to support their preferred policy positions, you can't have effective separation of powers.

You say this, but just ended up ignoring what I wrote, and used the exact fallacious argument that I said fundamentalists use.

You are speaking as though your interpretation/ "originalism", is the baseline. The irony being that "originalism" is not a solid foundation of logic or reason that you think it is. In fact, it does the opposite. It is actually preventing you from considering and interpreting our founding principles. It demands that whatever prejudices the authors had must be inherited in our interpretation. It becomes a hypocritical foundation of clamoring at others "you're just doing whatever you think is right!", all the while, writing reasoning from your preconceived conclusion.

I'm not saying that all my interpretations are correct, and I'm sure you can admit the same. But you're presenting yourself on a pedestal of thought and reason that really has no foundation. All justices use a mixture of original intent, modern circumstances, and creativity. Scalia included. Since there's no way to prove original intention, you end up filling in the gaps with your own preconceived ideas. You may even admit this saying that "sure we all do this, but originalism is the ideal, even if perfectly unattainable". But that's just the thing. "Originalism" is all well and good as a piece of an argument, but you can't hide behind it. Once you've preserved your mind behind the wall of "originalism" you've started doing more harm than good, and you'll find that you've really only tricked yourself.

[Davnasty]

This makes me a little more confident that you are starting from your conclusion based on your individual morals/policy preferences and then coming up with the argument that's not clearly inconsistent with the text of the constitution.  Which is understandable and the way most people think it should work (or at least want it to work when the person doing the deciding agrees with them).  But I think people only think that because nobody has approached the constitution that way from a rightist perspective, and only Kennedy has approached it that way from a libertarianish perspective.  If we had four supreme court justices trying to claim that capital gains taxes violate equal protection because they tax future consumption more heavily than current consumption,      or that progressive taxation in general is suspect under the equal protection clause, you'd see a lot more people understand that it's a bad idea to not be bound by any originalism, but free to make whatever arguments are not clearly contradicted by the text of the constitution.

I'm trying to see your perspective here, but your examples aren't helping. The tax laws are applied fairly and equally to all Americans so I'm not sure what this has to do with the Equal Protection clause.

  You think the tax laws are applied fairly and equally to all Americans.  I think most people would disagree with that statement, although I think people would disagree on why (and in what "direction") they are unfair.  But what is true if you follow something like an originalist approach is that "unfair" taxes are not prohibited by the constitution (unless you are doing something like taxing people based on what race they are). 

Or not allowing legal benefits to someone because they are gay.

Your opinion is still following the assumption that allowing all males to marry females = equality and several analogies have been given that you didn't acknowledge, so I'm going to try again with something more hypothetical.

Let's say we have single payer healthcare and the government decides to pay for some drugs but not others. There are two equivalent diseases that cause the same symptoms but each one only effects people of a specific race. Race A is effected by disease A and cure A is covered by the government. Race B is effected by disease B but cure B is not covered by the government. Would you consider this to be an equal protection regardless of race? After all, everyone can get cure A paid for by the government.

I think you are missing that we are generally talking about two different questions.  When you ask about equal protection, you generally seem to be asking the question: "Do I think this is equal protection? Or equality? Or the "right" result"?"  My answer to that one is I'd have to have more information.  How many people are affected by Disease A.  How many are affected by Disease B.  What the the costs of the preferred treatment of Disease A and Disease B.  What are the costs of the second best alternative.  Etc.

The question I am trying to get you to see is a different question:  "Does this violate the equal protection clause of the U.S. Constitution?"  If you're looking at it from an originalist perspective, the answer to that one is no, unless race was used as a deciding factor in determining which treatments to cover.

The same number of two equal populations is effected. The cost of the drug is the same. There are no alternatives. If you have any other variables in question just assume all else is equal. The court cannot know whether or not race was a deciding factor but assuming all else is equal it would be obvious that it was.

Now I realize that in the case of same sex marriage we do not have this perfect hypothetical where all else is equal, however I would suggest that it isn't necessary for the court to prove that sexual orientation was a deciding factor in not allowing same sex marriages but rather the onus is on lawmakers to give a legitimate reason.

[Jrr85]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias.  A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.

  I don't think there is anyway you are ever going to understand a different viewpoint. 

[FIPurpose]

Also I used to be someone that would be in your position. I thought Scalia was the most reasonable and sensible judge on the court. So yes, I do know how to envision reading the constitution another way.

But when I noticed a few papers coming out written by Scalia that were obviously bent or him stretching the facts of history to match his prejudices, it made me reconsider just how logically sound it all really was. Don't get me wrong. I still think judges like Scalia make honorable decisions when they judge the constitution to say something that they don't personally agree with. I think him and RBG did this often. RBG most recently having a surprise decision to me on the State Sales Tax case.

So I know exactly why your arguing for "originalism". I used to hold that same point of view. But I personally came to realize that more often than not, people who leaned a little too heavily on original intent, often were including more bias in their "research" than they're aware of.

Does that mean the alternative is now the constitution means whatever you want it to mean?

No.

The alternative is a serious discussion that gives the original intent a voice, but doesn't let it dominate the conversation. The liberal position is to list out "what does this mean today?" "What did our ancestors learn, why did they codify this amendment?" "How has the world changed since the writing of this document?"
The justices are there not to just make up whatever or enact the will of the people. They are there to interpret what our documents mean today. They are there to see what in our constitution has to say about new problems. They are there to wisely apply the original intent, common sense, legal reasoning, and the specific circumstances.

All that to say that yes there is a safe ground in between staunch "originalism" and demagoguery.

[Jrr85]

You keep using the phrase "legislating from the bench", but the courts aren't writing legislation. They use existing constitutional law to review current practices. That is explicitly not legislating from the bench.

What you call legislating is simply overturning traditional precedent. There is currently in our system, a lot of laws that will not be completely consistent with our codified set of ideals (ie the constitution). Because of bias, prejudice, etc, these inconsistencies can become codified in our law for long periods of time. It is not legislating from the bench just because you don't like the outcome. It is the recognition that the ideals and protections in our constitution do not always match.

Oberfell was the recognition that those values were not being applied correctly. The courts did not legislate demanding how States have to implement that decision, they just have to provide that equal protection. There was no mandated rules about how States had to implement this, States are perfectly capable and allowed to remove all marriage laws if they want.

I feel like your being purposely obtuse. Honestly, I see this all the time in fundamentalist church I grew up in too. Everything they interpreted in the Bible was an obvious application, or plain reading, but liberals were always just wanting to read whatever they wanted into Scripture.

Fundamentalism whether it is the Bible or Constitution, does not offer a superior version of reading or interpretation. You simply end up reworking your conclusions into a pseudo-historical/textual argument. What one side calls "you're just making things up" the other will say "no, I'm simply applying what was always there."

The slippery slope you get with originalism (and actually happened!) was the Plessy v Ferguson case. Where the court used an argument from original intent that the constitution doesn't explicitly speak out against "separate, but equal" so therefor is constitutional. You may feel that "originalism" has protected you from irrational thinking, but it is much more likely that holding onto "originalism" is actually just a rationalization of what you already believe.

I am not the one being obtuse.  And I recognize you are not purposefully being obtuse.  But you keep coming at the constitution from a "what do I think is right" perspective.  It's a fish can't see the water problem.  You can't seem to envision any other way of approaching it because 99% of the time when people are talking about the constitution, unless they are of a particular intellectual/philosophical bent, that is the subconscious position they are arguing from.  Pretty much everybody initially is bothered when something obviously bad or stupid is constitutional (which happens a lot) or when something they believe to be good and smart is unconstitutional (which also happens alot, although obviously good or smart ideas are much, much more rarely unconstitutional than obviously bad things being constitutional).  But once everybody openly embraces the idea that the constitution is just there to support their preferred policy positions, you can't have effective separation of powers.

You say this, but just ended up ignoring what I wrote, and used the exact fallacious argument that I said fundamentalists use.

You are speaking as though your interpretation/ "originalism", is the baseline. The irony being that "originalism" is not a solid foundation of logic or reason that you think it is. In fact, it does the opposite. It is actually preventing you from considering and interpreting our founding principles. It demands that whatever prejudices the authors had must be inherited in our interpretation. It becomes a hypocritical foundation of clamoring at others "you're just doing whatever you think is right!", all the while, writing reasoning from your preconceived conclusion.

  I am not the one ignoring what other people are writing.  I am not the one that has trouble understanding the other person's point of view.  Originalism does not prevent me from considering our founding principals.  It does prevent me (in all but the close cases) from substituting my judgment for what has actually gone through the ratification process, either through the original constitution or the amendment process.  It doesn't demand that whatever prejudices the authors have must be inherited in our interpretation.  It does require accepting that the constitution is a protection against the worst excess of government, not a mechanism for legislating the best policy.  There is a reason the same sex marriage (and a practical universe of other issues) are not addrsesed in the constitution.  Had somebody convinced the authors of the original constitution or the 14th amendment to address same sex marriage, they almost certainly would have addressed it by banning it.  It's good that they did not take such issues out of the legislative process.  We should be happy that gay people didn't have to overcome a constitutional prohibition against recognizing same sex marriage.

I'm not saying that all my interpretations are correct, and I'm sure you can admit the same. But you're presenting yourself on a pedestal of thought and reason that really has no foundation. All justices use a mixture of original intent, modern circumstances, and creativity. Scalia included. Since there's no way to prove original intention, you end up filling in the gaps with your own preconceived ideas. You may even admit this saying that "sure we all do this, but originalism is the ideal, even if perfectly unattainable". But that's just the thing. "Originalism" is all well and good as a piece of an argument, but you can't hide behind it. Once you've preserved your mind behind the wall of "originalism" you've started doing more harm than good, and you'll find that you've really only tricked yourself.

  I am not presenting myself on a pedestal of thought and reason.  I am arguing that originalism is a better approach because it is the only approach that puts some meaningful limitation on the ability of people to substitute their judgment for the constitution.  The fact that there are actual close gaps where people's priors end up dictating the results (subconsciously or consciously) is not an argument that judges should not be bound by anything other than their personal preferences or judgments or values.  The political process is valuable even when it gets the "wrong" result, because it increases the likelihood that we resolve issues through the political process and not through violence.  Kennedy is the closest thing we have to a libertarian minded judge and he might be the judge that gets decisions I like the most, but that doesn't change the fact that it's a bad idea to get the "right" result by exceeding their proper constitutional role. 

[Davnasty]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

[GuitarStv]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias.  A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.

  I don't think there is anyway you are ever going to understand a different viewpoint.

I'm not particularly emotionally invested in the discussion of gay marriage.  Or marriage at all to be honest.  Your tax comparison doesn't make much sense at all though . . . people can choose their income, are you contending that they can choose their sexual preference?

The point of the previous discussion was to point out that no, the Supreme Court was not 'legislating from the benches' as you alleged, in the case you mentioned.  They were attempting to adhere to an originalist approach - which you seem to value as being very important.  My goal was really to point out that that 'originalism' isn't really the set in stone concept you keep pretending it is.  Two reasonable people can approach the same document with an originalist intent, and come away with wildly different conclusions.  That's because interpretation of law is always based upon some level of preconceived ideas.  In this thread you appear to be calling interpretations that you happen to agree with 'originalism'.

[robartsd]

To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

Not original to the constitution, but a tax based on income is pretty clearly an originalist interpretation of the 16th amendment.

[oldtoyota]

Another poster mentioned that Democrats did not turn out to vote enough in 2016. Well, HRC won the popular vote.

Justice Kennedy's son worked for Deutsch Bank and loaned DT $1BN dollars. Russian tracks seem to be all over it.

I find Kennedy's sudden resignation suspicious. Evidently, he was appointing his clerks as of a few weeks ago. Why the sudden change?

[Jrr85]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion. 

And people keep saying that same sex people are given different rights based on their sexual orientation, when they could legally marry the same universe of people as heterosexual people.  You are starting with your conclusion and reasoning back from there.   

[Jrr85]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

In fact, to argue that gay people should not have the same rights as straight people is a radical departure from what is laid out in the constitution, and deeply rooted in personal bias.  A decision to deny gay people these rights because of these personal biases would be a good example of 'legislating from the bench' - exactly the opposite of your argument.

  I don't think there is anyway you are ever going to understand a different viewpoint.

I'm not particularly emotionally invested in the discussion of gay marriage.  Or marriage at all to be honest.  Your tax comparison doesn't make much sense at all though . . . people can choose their income, are you contending that they can choose their sexual preference?

The point of the previous discussion was to point out that no, the Supreme Court was not 'legislating from the benches' as you alleged, in the case you mentioned.  They were attempting to adhere to an originalist approach - which you seem to value as being very important.  My goal was really to point out that that 'originalism' isn't really the set in stone concept you keep pretending it is.  Two reasonable people can approach the same document with an originalist intent, and come away with wildly different conclusions.  That's because interpretation of law is always based upon some level of preconceived ideas.  In this thread you appear to be calling interpretations that you happen to agree with 'originalism'.

  There is not a universally agreed upon definition of originalism, but that's not the same as saying it has no meaning.  You are trying to use "originalist intent" in a manner that is contrary to any generally accepted definition of originalism. 

 

[Davnasty]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.

Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

[Jrr85]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.

Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.   

[GuitarStv]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.

Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.

An originalist would realize that the 14th amendment was designed specifically to protect a marginalized group of people from the unequal laws that southern racists in government created.  In the words of Jacob Howard, when introducing the final draft of it:

"It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?"

People who earn more are wealthier and more influential.  They are not marginalized.  Clearly there is no reason to apply the 14th amendment's Equal Protection clause regarding taxation here.

People who are gay are marginalized and discriminated against in that they receive unequal treatment when married.  They are being unfairly disadvantaged by laws created by religious homophobes in government.  Clearly the original intent of the 14th amendment's Equal Protection clause should be applied here.

[FIPurpose]

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.

You keep making the argument that somehow a Progressive tax is a violation of the equal protection clause, but this has already been decided by the courts.

Brushaber v. Union Pacific Railroad Co. decided the vaildity of the Revenue Act of 1913.
Tyee Realty Co. v. Anderson - was a complaint about Progressive taxation that was considered proven by Brushaber, and was thus dismissed without merit.

Since then, there have been no court cases on Progressive taxation and the 14th amendment, and I expect there never will be, because even the lower courts dismiss these to be without merit. The Courts have decided not to restrict the powers granted by the 16th amendment.

In fact there have been dozens or cases brought to the court challenging progressive taxation, and none have them have ever been found to be unconstitutional. The argument that you continue to use has been uniformly dismissed by literally more than a century of legal precedent. Because the court has never found that the 14th amendment applies to the equal protection of different economic classes.

So please, if you're going to make an argument, it needs to be grounded in actual legal precedent. "Equal Protection" means something, and the Supreme Court cannot and does not arbitrarily change the meaning of the word.

[Davnasty]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.

Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.

Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?

Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.

When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?

So far you've made two cases for why denying same sex marriage is constitutional:

1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.

I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?

[Kris]

I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.

  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.

  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 

Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.

Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.

Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?

Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.

When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?

So far you've made two cases for why denying same sex marriage is constitutional:

1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.

I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

[shenlong55]

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.

Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?

Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.

When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?

So far you've made two cases for why denying same sex marriage is constitutional:

1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.

I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?

That's okay, his argument #1 doesn't make any sense either.  Because what this is really about are the benefits provided to married couples by the state.  A state that only recognizes marriages of heterosexual couples is limiting those benefits to heterosexual couples.  Trying to say that those benefits are available to any individual is just wrong.  There's no way for an individual to file taxes jointly for instance (are they going to file them jointly with themselves?).  So no, a gay male individual cannot gain the benefits of marriage by marrying a female.  That would just be another case of a heterosexual couple gaining the benefits of marriage when homosexual couples are locked out of those same benefits.

[Jrr85]

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.

You keep making the argument that somehow a Progressive tax is a violation of the equal protection clause, but this has already been decided by the courts.

Brushaber v. Union Pacific Railroad Co. decided the vaildity of the Revenue Act of 1913.
Tyee Realty Co. v. Anderson - was a complaint about Progressive taxation that was considered proven by Brushaber, and was thus dismissed without merit.

Since then, there have been no court cases on Progressive taxation and the 14th amendment, and I expect there never will be, because even the lower courts dismiss these to be without merit. The Courts have decided not to restrict the powers granted by the 16th amendment.

In fact there have been dozens or cases brought to the court challenging progressive taxation, and none have them have ever been found to be unconstitutional. The argument that you continue to use has been uniformly dismissed by literally more than a century of legal precedent. Because the court has never found that the 14th amendment applies to the equal protection of different economic classes.

So please, if you're going to make an argument, it needs to be grounded in actual legal precedent. "Equal Protection" means something, and the Supreme Court cannot and does not arbitrarily change the meaning of the word.

I'm not making the argument that the equal protection clause prohibits progressive taxation.  I'm pointing out that it doesn't, and it doesn't for the same reason the equal protection clause doesn't (or at least wouldn't if the judiciary was staying within its lane) mandate recognition of same sex marriage. 

[swampwiz]

AK was often the tie breaking vote.. Now Trump will install a right wing whack job no doubt.

How do we think that will affect the next attack on the ACA or other "entitlement programs"??

Kennedy was a no vote on the ACA mandate, so his support doesn't matter.  And in any case, there is no more mandate, so the whole reason to throw out the ACA has been obviated.  And entitlement programs are not the purview of the Court.

[swampwiz]

A Democratic President expands the Court.

I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.

God forbid progress goes through the democratic process and within constitutional constraints.

While I agree that impeachment should only be warranted for someone who is corrupt, it is perfectly fine to expand the Court.  All that would be needed is majority rule.  The conservatives are trying to SHAME everyone into thinking that somehow 9 is a magic number.  The bottom line is that with regards to the judiciary, it is THERMONUCLEAR WAR.

[swampwiz]

It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.

I hope.  But I watched Idiocracy again last weekend and I am not so convinced that it's a generational thing.  Bread and circuses, and history keeps repeating.

I'm Not Sure about this ...

:)