>Constitution is a living document
>We're a nation of laws
Pick one and only one
>>709124
No. Incorrect. The existence of SCOTUS means that we can both have a society ruled by the law of the land, and a living constitution. After all, as the meaning of the document changes, the court exists to make new decisions, this codifying the new meaning as the law of the land.
>>709166
>9 un-elected lifelong judges should get to dictate law
Nawww, I'm have to disagree with you. The judges exist to uphold the constitution as is stands. It should be changed the way the founders intended- by amendment or constitutional convention
>>709174
this is the only reasonable and honest position.
>>709166
Its the job of congress and the states to add or subtract from the constitution, not the courts. Ideally the courts should only evaluate whether a law is consistent with the constitution. and should hue to as close to the intent of each provisions authors and those who voted for it, to the extent that intent can be established through primary sources.
>>709124
Well, you can blame Judicial Activism.
Ideally, we would only appoint a bunch of super constitutional autists to the Supreme Court. That didn't happen, so the Constituon will be warped over time until it is eventually a worthless document.
>>709180
judical activism is a buzz word for any decision one side does not like.
The real conflict in the court is between those justices who think that the popular will should prevail and those who think the court should aggressively check unconstitutional laws
>>709180
"Judicial Activism" has been going on since Marbury v. Madison
>>709166
Yes, there is a degree of built-in vagueness in the constitution that justices should work within. Freedom of speech isn't limited to the newspaper, spoken voice, or quill and parchment. But that's not really what I'm decrying.
I mean more judicial activism from the bench by forcing non-specified "rights" into the federal sphere. If it's not explicitly relegated to the feds, then the states become the mechanism to debate and determine the specifics of it.
>>709174
>>709175
Scalia please, you're dead, along with your retarded constitutional philosophy. I don't hate you as a person, but your views were completely insane. There's a reason you're the only justice ever to say that they would have dissented on Brown V. Board.
>>709177
Hello Robert Bork, I didn't realize we were reviving retarded and decades dead theories on how the court should make its decisions.
>>709180
As >>709189 pointed out, people only label a decision judicial activism when it displeases them. The justices are all experts in constitutional law, just because you get butthurt when their interpretation of the document is different from yours doesn't magically make that not true
>>709124
>Americans worship a fucking paper.
Jesus Christ.
>>709211
>forcing non-specified "rights" into the federal sphere
Butthurt detected. Fuck you, the Warren and Burger courts were great, and I'd rather have the constitution be interpreted as giving me a right to privacy than not, thank you very much.
>>709221
then the correct thing to do is criticise all instances of judicial activism and support a strict constitutionalist viewpoint
its true that both the right and the left have been guilty of legislating from thr bench, but just because they both do it doesnt mean either side is justified
the constitution already provides for an amendment procedure, if you want to change it then the process is right there
Am I allowed to pick the latter?
>>709221
I actually disagree with Robert Bork's philosophy, I think the courts should aggressively go after any law that violates the Constitution. While Bork was an orignialist, he also had a philosophy of deference like Chief justice Roberts.
and far from being dead, orginialism is still a strong force on the supreme court
>>709232
What exactly is your alternative to following the Constitution? should congress just get to pass any law it wants? should the courts be able to make up and get rid of rights as they go along?
>>709221
>>709255
This. Scalia was right, the Constitution has an amendment process for a reason. The only reason 'living document' philosophy even exists is to allow Judges to circumvent that process to force their own views on society.
There's really only two ways you can interpret a document. You can read its original meaning and apply it consistently, or you can just make shit up. And I for one am not willing to apply the death of the author to a document meant to secure our freedoms against government overstepping its power.
>>709221
>Scalia, please
I would rather not treat the court as some renegade entity I hope is on my side. Treating the constitution as a evolving document will only allow us to slide towards completely abandoning it.
I have no idea why the people are happy to do away with a document that acts as their shield from government tyranny. Oh wait yes I do, they're short sided partisan jackasses who would gladly have a dictator if he acted only in their interests.
>>709284
Exactly the only reason you would support the living document philosophy is if you want to have the court read new things into the law, or you feel parts are outdated and what the court to ignore them, all while circumventing the legal process of changing the constitution, which would of course require getting people to agree with you.
>>709288
Want the court*
Why do people treat Scalia as if he were a true adherent to originalism?
He only used textualism and originalism when it suited his argument. For political court rulings, opinion came first, followed by a sometimes hypocrtical selection of arguments something but not always including originalism.
The constitution is most certainly not a "living document", and the concept is absurd. The only people who support the "living document" idea are the ones who wish to push an agenda but know that they would never be able to get 2/3rd of the states to ratify a new amendment.
>>709293
>something
sometimes
>>709293
Because he was very vocal about his support of it. My government teacher never shut up about him, he was up there with the founding fathers on people he'd quote about things, so he's one of the few Supreme Court Justices I even know a decent amount about.
>>709293
To be far libertarians have pointed this out before. His originalism was checked by his social conservatism
Snarky. Don't need to be so judgmental anon. Where did justice scalia touch you?
>>709288
>>709294
While there's undoubtedly a certain amount of agenda pushing about... the fact of the matter is that there is going to be an inherent disagreement about the facts of the matter regarding what the Constitution means.
Even if we were all agreed that all interpretations of the Constitution should follow the Intent of the Founders, there will still be disagreement on that matter until we can exhume and reanimate the Founders themselves.
And assuredly their answer to anything past the date of their death will be something along the lines of "No no no no and fucking no".
So... while the concept of a "living document" is certainly open to abuse, there is hardly any other way to go about it. The only question is whether we should put on a facade or not.
>>709232
It's not worship, you stupid Yuropoor. It's following the law of the land. There is a set process to change the law, and people who attempt to work around it instead of following the proper legal channels are rightfully despised.
>>709297
It's true he wouldn't shut up about it, but that's just because it was one of his tools for arguing cases, which he was very skilled at. It doesn't mean he was actually consistent in applying originalism.
Originalism also implies you know what dead men thought, and is based on a selective interpretation of historical context of certain select cherry picked historical figures. Just like history can be interpreted, originalism is just as prone to reinterpretation and revisionism.
The argument for originalism is placing historical context to the current day over the underlying principles in the constitution. The question is if what you interpret is the underlying principles and how they apply to today, or how people back them thought the principles would affect society, and interpret based on the presumed effects, rather than the principles, and apply those to the modern day.
>>709306
You act like the constitution emerged out of a vacuum, there were lettters and speeches made about each amendment and the original document. And while people can disagree in good faith about what the original intent was, That is not an excuse to discard it when there is often abundant material to make a case from.
It is still open to interpretation but less open for abuse.
>>709299
I can't correct my own grammar?
>>709306
>there is hardly any other way to go about it.
Bullshit. The whole "living document" idea revolves around the philosophy that the interpretation of the constitution should change to suit the times. This is just a mealy mouthed way of saying "I know what they intended, but let's pretend that we don't."
There are literally thousands of pages of speeches, letters, books, and other writings from the framers of the constitution. It really isn't difficult to figure out (in most cases) what is and what isn't constitutional.
There are tons of blatant examples of justices ruling in totally unjust manners simply because they have the power to do so (Wickard v Filburn for example).
>>709313
Thot u were a random anon being a jackass- my bad
>>709318
>There are literally thousands of pages of speeches, letters, books, and other writings from the framers of the constitution.
Tens of thousands. Enough that you can probably find something in there somewhere to support pretty much whatever you want.
>>709309
>>709312
>>709306
This. This whole notion is sophistry. We can deduce the basics of what the Constitution means and what it is supposed to mean. And even in those cases where there is room for debate, that doesn't excuse this living document nonsense being used to just write things into the Constitution.
Take the recent gay marriage ruling. I don't care what you think about gay marriage, SCOTUS did not have the power to make that decision, and their rationale was total nonsense.
Any consistent application of originalism would have killed that ruling in the womb.
Whats even more disconcerning, is growing numbers of everyday people who seem to not care about things like the right to bear arms, or the right to free speech, or limitations on the powers of government. We are rapidly becoming a nation of slaves, who refuse all attempts at principles governing state action.
This is not okay.
>>709312
The constitution is a document of near timeless principles to which laws must adhere, amended on principle to create a more perfect ideal. The laws on the books are those that are suited for the time and place. The key is to elevate and separate the ideals from their burdensome historical realities.
>>709312
>You act like the constitution emerged out of a vacuum, there were lettters and speeches made about each amendment and the original document
How did I act that way? No amount of letters and speeches and documentation has ever prevented confusion and debate on any matter. Ever.
>It is still open to interpretation but less open for abuse
Perhaps so, but "less open" is still open. That's just how it is, we will have to accept that some amount of abuse will occur. We don't have to like it, but it will happen and there is little to be done.
The worst abuse would be to insist upon a single interpretation of the Founders' "true intent" and quash all discussion to the contrary. The problem with the idea of "intent" is that there is an assumption on some sort of general agreement regarding what the Founders intended, when the reality is we don't really know and if we could ask them they'd probably say something that sounded batshit insane to nearly everyone living today.
>>709318
>This is just a mealy mouthed way of saying "I know what they intended, but let's pretend that we don't."
Hardly, as I just typed there is no amount of documentation that will prevent confusion and debate. If we want the law on paper to reflect law in practice then a "Living Document" of some sort is necessary.
>There are tons of blatant examples of justices ruling in totally unjust manners simply because they have the power to do so
Right. I would file that under "abuse".
>Uncodified constitution
>Unelected Upper house
>Upper house is appointed by head of government
>Head of government indirectly elected coming from the majority party in the lower house
>No checks or balances on the Head of Government and cabinetother than their own political party if a majority government is formed
>majority governments nearly always formed due to the nature of the first past the post system
>Opposition from own party can be circumvented via the whip system
>Meant to be a unitary state
>3 areas of the country have devolved national parliaments, leaving one forced to use the Unitary national parliament
>Members of parliament from nations with devolved parliaments can vote on the affairs of the undevolved nation but not vice versa
>There's an unelected international body which can overule any legislation passed and our supreme courts
I want off
>>709325
>Whats even more disconcerning, is growing numbers of everyday people who seem to not care about things like the right to bear arms
>originalism
>militia
The current understanding of the 2nd completely defies and undermines originalism, and is a prime example of living document nonsense.
>>709124
All laws are living documents. Someone, or something, has to interpret law as it pertains to a particular set of circumstances or case.
This is particularly true of the constitution, which is deliberately broad and vague, even for its time (and when set to the modern standards of minutia of terminology, it can't even stand as a legal document.)
Laws are just words on a paper, powerless and meaningless, in and of themselves. Someone must interpret them and determine their intent. Inevitably, there will be differences of opinion in regards to intent, so one attempts to create a case of evidence to support one's interpretation, be it the Federalist papers and the constitution, or the Nicaea debates, and the Bible.
It's impossible to apply law with without interpretation - law does not exist without interpretation.
> a set of rules established 250 years ago can never be changed
Americans, everyone.
>>709325
>Take the recent gay marriage ruling. I don't care what you think about gay marriage, SCOTUS did not have the power to make that decision, and their rationale was total nonsense.
>Any consistent application of originalism would have killed that ruling in the womb.
disagree. At the time of the 14th amendment there was no federal entanglement with marriage, but today there is. and the due process clause must be enforced
>>709333
> EU
> Unelected
u wot m8
>>709336
Madison personally sent a letter to a civilian merchant ship to let them know they could carry cannons. Cannons, aka the time periods equivalent of modern missiles.
We can probably both agree that nukes and patriot missiles shouldn't be in civilian hands, but the founders would unquestionably support the citizenry's right to assault rifles. The second amendment was specifically for tyranny. There were 3 armed revolts within the first 20 years of the constitution being ratified, for Christ sake.
The founders are rolling in their graves for writing one goddamn word: "militia"
> mfw America doesn't have an independent judicial branch
>>709341
There is a legal amendment process, the document isn't unchangeable. Fucking Europeans are so mired in a history of Monarchy that they can't understand the value of individual freedoms
>>709332
The entire living document idea is abuse of power. If a judge follows that philosophy then they should be disbarred immediately. If they truly believe that their ruling is 100% in line with the letter of the law, then there is no need for the living document argument.
>>709341
>I have no idea how US law works.
>>709351
This. The meaning is clear that the militia is a partial justification for the right of the people to bear arms. Its not the militia's right to bear arms. Such an interpretation defies everything we know about the time period the Constitution was written in.
This is a clear example of where originalism would dismiss all doubt.
>>709351
civilian merchant ships couldn't carry cannons out of some principle, ffs, it was a pragmatic solution to the (then) very real problem of piracy.
>>709351
Do you not understand what militia means? By definition is is a military force consisting of civilians. Are you going to say one founding father's opinion means that is the opinion that was ratified. It's very clear in providing a historical context, which is militia.
As >>709361 pointed out, it was to deal with piracy, not to mention a ship is not simply an individual and also subject to regulation. It's closer to a company.
This is living document nonsense trying to justify itself with cherry picked originalist arguments. A strict textualist and originalist interpretation of the doccument as ratified would clearly show the current understanding of the 2nd to not be aligned with the current day understanding.
I'm not saying ban guns, I'd just pointing out what many people have pointed out before. People claim "judicial activism" not based on whether it is living document logic vs originalism. It's based on whether or not you agree with the interpretation.
>>709360
> The meaning is clear that the militia is a partial justification for the right of the people to bear arms.
Yes
> Its not the militia's right to bear arms.
That was not said here.
The point is that militias, and militia-like duties were key in the justification and contextualization of the right to bear arms. If it wasn't it wouldn't have needed to be included. This is living document nonsense, you cherry-pick the lines you want, while completely ignoring the historical context, the specific historical context included in the amendment itself.
Furthermore, you are completely ignoring the role of the 9th. The 9th is quite clear. The 2nd being enumerated for militias does not detract from the rights of non-militias. If there is no anti-cannon law, then you can own a cannon. Cannon ownership is not proof of the extent of the 2nd. The real test is if a law that banned cannon-ownership would be seen as constitutional based on the 2nd.
>>709378
>A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The founding fathers knew well enough how to word the constitution so people couldn't misrepresent it. Notice the placement of commas? You being illiterate doesn't change whats written
If asked, "what's a supreme court justice's job?" they better answer with "to interpret the statutes and constitution according to the text that was codified into law and to apply them to the specific appeal in the case presented before the court." If it's anything else they should be disbarred.
>>710244
That's why they included the part about militias. So it wouldn't be misinterpreted by people like you. There is judicial precedent for not ignoring the first part.
>>710584
what exactly are you ignoring what are you arguing exactly? What is the literal interpretation and what does it mean.
>>710584
The rest of the amendment does not lose its power because there is no longer a need for militias. (in fact legally the militia of the united states still exists) You would have to repeal it for it to no longer apply
There is a reason that you Americans have a Constitution, and every other civilized country on this planet as well, because everyone at the time they were drafted knew perfectly well what a society run by the whims of an autocratic monarch looked like.
So, either you should adhere to the constitution out of a respect for your own life and liberty, or expect that the country you live in will turn less liberal(talking about liberal in the liberty sense, not in the retarded fucking mongoloid American version of liberal here) in generations to come.
>>709351
>We can probably both agree that nukes and patriot missiles shouldn't be in civilian hands
If it's about tyranny, how could you? If it's about individual citizens defending themselves from potential tyranny, then surely they should have access to nukes and anything else any potential tyrant might have.
If it's about the ability of the state to protect itself from the tyranny of foreign invaders or the central government, through the existence of a readily available and self-maintaining militia, that's another thing then. Giving everyone access to nukes threatens the state's security, rather than aids it, but having an armed force the size of its able bodied population might be advantageous for such situations.
But, before 2010, each state could also decide that any firearm was a threat to its security, and thus illegal, and only the central government was forbidden to have a say in the matter.
So, we've basically removed the states' right to determine what is or isn't in the best interest of their own security, by forcing the 2nd amendment on them through the 14th, rendering half the wording of the 2nd amendment, meaningless.
Claims of originalism, or lack there of, seems to be completely reliant on whether one agrees with the resulting decision.
>>710602
It means the individual-rights interpretation is judicial activism and living document nonsense. It's anti-originalism at its finest.
>>710610
Actually, it does. The first part is more important than the second part. That's how textualism works. If you want to argue that militias exist by law, then that weakens your argument even more, as the part about militias can't be ignored just because they're no longer relevant.
>>710751
originally the 2nd amendment did not cover state governments, but that was before incorporation. The court decided incorporation applied to the second amendment
>>710766
Exactly, so the states no longer have a say in what is or is not necessary to their security.
>>710409
The only thing your statement proves is that you know nothing about the constitution.
>>710777
I think the post may have been about the difference between the text of the initial ocnstitution vis a vis the amendments/bill of rights.
>>710777
> le constitution is special meme
Get over yourselves Amerifats, it's a stupid piece of paper written by overrated pseudo-philosophers who would be turning in their graves if they saw how 250 years later you are still arguing about the intended meaning of their words rather than simply figuring your own shit out.
>>710409
Yes, because the bill of rights only concerns the structure of the federal government, and the 14th amendment doesn't exist.
(Dern foreignerz...)
>>710409
Our rights were granted us by our Creator, and cannot be infringed upon by government without repercussions.
That is a moral statement.
>>710833
Also not part of the constitution. That's the Declaration of Independance you be quoting there.
ITT:
https://www.youtube.com/watch?v=3b56e0u0EgQ
>>710797
(you)
>>709325
>the gay marriage decision is invalid! SCOTUS can't possibly make the argument that prohibiting citizens from a purely legal institution based solely on the gender of their partner is a blatant violation of their right to equal protection under the law! And it totally isn't a blatant violation of those same equal protection rights for states to offer full faith and credit clause protection only to straight marriages and not gay ones!
Opiniondiscarded.png
>>711126
By the people who said our rights came from the Creator, not from the government.
If the government gives you your rights, they have the right to take them away.
>>711169
But there is no such claim of divine rights in the Constitution.
Also, it's a false position anyways. You have no rights save those others are willing to allow you and both you and they are willing and capable of defending. Even if there are no people, you only have those rights you can win from nature. God does not protect your free speech, people do - otherwise there'd be no need for a government. The government is the common contract and mechanism through which the people agree upon the rights they are willing to enforce.
Not even the right to life is divinely defended. The ocean will pay no heed to the words of the Declaration of Independence nor the Constitution nor the Bible, if you are drowning in its waters. Either you save yourself, someone else saves you, or you drown.
(Or maybe a whale will eat you and you can survive for a few days in its belly.)
>>711169
>the Declaration of Independence has any bearing on the interpretation of the constitution
Well someone's very clearly way out of their depth in this discussion.
>>711210
>muh spooks
>>711169
This is what >>709232 is talking about. You're literally worshipping your particular codification of rights as though it is the word of god and cannot be changed.
Rights are created by law. In America there are rights recognised at common law, there are lots of rights granted by ordinary legislation, and there are some that are entrenched in the Constitution. All of those laws can be changed, although the particular process is different.
>>711233
It's not as though the Bible isn't similarly open to interpretation and rationalization, and its meaning isn't regularly altered as a result as well.
Hell, there's even an amendment process, if you look at Nicea and the Protestants, even if it's set solely by historical precedent rather than within its own text, and tends to involve some bloodshed.
>>709174
>elected = good
>>709174
Think you're confusing the judicial branch's role, and the military's.
Nine old guys don't stand much of a chance of upholding the constitution - that's what those few million young guys with guns are four. It's the nine old guys job to interpret the constitution. To decide if law X or Y is constitutional. (Yes, James v. Madison, I know...)
They are unelected and life long appointees in hopes that they will not have to conform to the pressures of the electoral process and public opinion (lobbyist groups, bribes, etc) and thus allow a greater degree of impartiality. Granted, that works better in theory than in practice - but until you set aside a cloistered school specifically designed to produce judges without outside interference or some such, it's kind of the best you can do.
>>711286
>They are unelected and life long appointees in hopes that they will not have to conform to the pressures of the electoral process and public opinion (lobbyist groups, bribes, etc) and thus allow a greater degree of impartiality.
You could pick your Supreme Court judges by voluntary lottery of those willing (with some minimum legal education, experience, and age requirements), rather than having them picked by a President and confirmed by Congress, who are both under the influence of all that motivational baggage.
>>711210
You get that the same people wrote both, yes? To start one country? And that "rights" in both are inalienable?
>>711233
It was written by godly men who started the most amazing country known to mankind.
It's been changed many times.
Be jealous. Be very jealous.
>>711316
Not entirely, no. And each was written with entirely different intention. There was already a government in place before the Constitution, and it wasn't working. This document was designed to fix that.
And further, it didn't originally contain a Bill of Rights, or any mention of any rights. Several of the folks who wrote up the Constitution were against including a Bill of Rights - it very nearly wasn't a thing.
And further still, several of the drafters wanted the Constitution to be temporary, to be replaced every four to eight years. Few, if any, envisioned it lasting centuries, but it was agreed that it would be vague to allow the states as much say as possible within a general framework and maintain some longevity and wider acceptance through flexibility.
And lastly, nothing about the Constitution guarantees those "inalienable rights", as any right described within it can be revoked, at any time, via the amendment process.
People like to ignore that militia had meant any able bodied man between the ages of 14 and I want to say the max age was in the 40's
>>711350
It was only signed on the precondition that there would be a bill of rights, and that the express bill of rights would not limit the rights of the citizens at all, but the rights of the government to infringe upon the rights of the citizens.
It's like AmHist101 in here.
>>711369
The number of people for and against the Bill of Rights was pretty damned close in the end, but totally in favor of those against at the start. James Madison, "The Father of the Constitution", was notably against its inclusion, as was Hamilton. Many felt it was giving the federal government more power over the states, rather than less. It was about as apt to sink the constitution as to let it swim, and was initially voted down, 10 to 0. If Jefferson, Henry, and Mason hadn't made a hooplah about it, it wouldn't have happened, and would have been ratified as it was. Most of the folks who were on about it were against the the Constitution being ratified at all, with or without the BR.
And again, amendment clause. Any or all those rights can go away, you just need enough people to agree to it. They are in no way divine - they are, literally, a social construct.
>>711443
The rights cannot go away; they are from God.
A tyrannical government can infringe upon them, and does.
Hence the 2nd Amendment against Tyranny.
>>711443
So humans are naturally born without free speech? It is not until the mighty government formed that they gained it?
>>711443
>Many felt it was giving the federal government more power over the states, rather than less.
Which is what has turned out to be the case.
Albeit, most of that came about with the 14th amendment, after the civil war.
>>711477
Humans are naturally born with the ability to take the right of free speech away from other humans.
Governments, artificially, prevent that.
Same with the "right" to life (the revoking of which is the most expedient way to remove the "right" to free speech.)
>>711213
Pick up the first volume of the US Code and take a peek at the organic law section. The constitution, declaration, Articles of Confederation, and the Northwest Ordinance of 1787. They're part of the law. Officially.
>>711472
>The rights cannot go away; they are from God.
Point to me, where in the Bible, that God declares people have the right to free speech.
More importantly, point to me, where, outside of the Bible, God has defended the right to free speech.
Rights not determined nor defended by the angles, but by the blood of mortal men.
>>711494
Whatever you think of the natural rights theory, and I don't give it much weight myself, it was central in the development of American law
>>711495
Declarationism is more philosophy than law. Some judges are guided by the idea, others are not. The declaration has the same legal impact as the Federalist papers and the like, in that judges may or may not take it into account when determine the legitimacy of a case or constitutionality of law, but neither the Federalist papers nor the Declaration was written as law.
As to the Articles of the Confederation, which was certainly written up as law, while there's been some scholarly debate Constitution has superseded the Articles of Confederation in every way that makes any practical difference since 1787. So it's fairly moot, and, unlike the other two, has never even been referenced in defense of law, so far as I know. Unlike, yes, the Northwest Ordinance, which continues to have an impact to this day, but the Constitution was not intended to wipe out every law made before it, only those which it could conceivably supercede.
>>711512
Central to philosophy and rally cries, yes, but not when it came to application. Otherwise the Founders would not have left various mechanisms to alienate people from supposedly divinely unalienable rights. It's effective rhetoric, but when it comes to law, or even every day life, is readily demonstrable as false.
You have no rights save those you and those around you can and will defend. When people ban together to defend those rights and put them on paper, we call it government.
>>711324
>godly men
Literally a bunch of fedoras and deists
>>711316
Is it really so hard to understand that government documents signed by the continental congress have no bearing upon the interpretation of the founding document of the United States of America? They're completely different entities, separated in history by the Articles of Confederation government. You do understand that the point of the constitution was to throw out everything that came before it, and start over with a definitive founding document that would be useful and applicable for centuries to come, right? If anything in the Declaration of Independence was intended to be in the constitution, it would have been fucking written in there. The best works for interpreting the document from an originalist perspective are the Federalist Papers. The fucking Declaration is completely irrelevant, and no jurist would accept your arguments in a Federal appellate court or in the SCOTUS.
>>711637
Religious Affiliation of U.S. Founding Fathers
Episcopalian/Anglican 88 54.7%
Presbyterian 30 18.6%
Congregationalist 27 16.8%
Quaker 7 4.3%
Dutch Reformed/German Reformed 6 3.7%
Lutheran 5 3.1%
Catholic 3 1.9%
Huguenot 3 1.9%
Unitarian 3 1.9%
Methodist 2 1.2%
Calvinist 1 0.6%
TOTAL 204
Any other lies you'd like put down like a rabid dog?
>>711659
How many times does one declare one's freedom?
>>711700
Every time...
>>711700
How does a declaration of freedom from Britain, by a transitional body of the representatives of independent colonies impact the interpretation of the founding Constitution of an Federal Republic of permanently bound states? Just because some of the same people worked on both documents doesn't necessarily mean the sentiments expressed in one are implicitly ascribed to the other. And since the Federalist Papers, written by some of those same people, as an explanation of the Constitution, make no mention of the Declaration influencing the Constitution, how is it that you justify using said Declaration as evidence of those people's intent in the Constitution, when they themselves made no such assertion?
>>709312
The founders weren't gods, and they lived in a time that doesn't resemble the modern world. The Constitution can either be a living document or it can be irrelevant.
>>712331
That would be the case, if not for the fact that
1. The Constitution was designed to be a document serving as a limit on the powers of government. If the government can change it on a whim, it fails in its ONLY reason for existence.
2. There is an amendment process. If you think part of the Constitution is outdated, please specify the part or parts you think is such, and convince the people to ratify an amendment. The Constitution does change and evolve, but it does so because it is edited via the amendment process, not because its meaning changes as fickle judges use the bench to push policy.
>>712264
They absolutely made the same assertions. We codified it later. One nation, under God, indivisible, with liberty and justice for all.
>>711695
Oh come on, you know that he's referring only to the most prominent founders in the minds of the public, i.e. Franklin, Jefferson, Madison, Washington, Hamilton, Paine,and Adams. Of those, Franklin was a deist, Jefferson, Hamilton, and Madison were kind of proto-unitarians who had a distaste for the hypocrisy of the church, and weren't too sure about all that miracle business, but believed in the moral teachings of Christ, Adams was a devout christian who was critical of organized religion, Washington wasn't a terribly active churchgoer but was privately devout, and Paine, ever the radical, was hyper-critical of organized religion, and a staunch deist. So while the other poster is still wrong, in that the founders weren't atheists and weren't really hardline deists either, the founders mostly weren't huge fans of organized religion, despite their firm belief in Christ's teachings.
>>712373
>Codified
Do tell, how does one line from a speech by Lincoln/a modification to the pledge of allegiance, which you can't be forced to say, and which has no non-ceremonial/legal applicability, stemming from an act of congress that is unconstitutional under the test set forth by Lemon v. Kurtzman codify anything? Do you understand how completely ignorant all of your posts make you sound? Literally no judge, lawyer, or expert in constitutional law agrees with you. Even the most hardline originalists and the loosest constructionists would laugh your ass out of court if you argued something like this. This is some sovereign citizen tier crapola anon.
>>712365
>2. There is an amendment process. If you think part of the Constitution is outdated, please specify the part or parts you think is such, and convince the people to ratify an amendment. The Constitution does change and evolve, but it does so because it is edited via the amendment process, not because its meaning changes as fickle judges use the bench to push policy.
Who decides what the constitution means, and how it applies to modern scenarios then?
You?
Oh yeah, it's those "fickle judges [who] use the bench to push policy" who get to decide what the Constitution legally means, ever since 1803.
If you don't like that, I suppose you can always attempt to start the amendment process.
Granted, part of the reason for that is that the *entire* document is outdated. It simply does not use the painstakingly specific legal jargon of modern legal documents, and thus is very open to interpretation. Granted, much of that is deliberate, but if you wanted to mitigate the need for interpretation by "activist judges", you'd need to update the entire document to modern legal standards, for starters.
That would mean scrapping it and starting over, rather than using it as a guide rule, as was intended by the framers, who found the best way to get all the colonies to accept the document, was to leave it open to as interpretation as possible.
>>712558
No, an examination of the original intent insofar as it can be determined, and to a lesser degree past precedent decides what the Constitution means. There is absolutely no excuse for modern judges turning 'it means what we like it to mean' into a system of interpretation.
Now there is a very solid difference between actual difficulties in interpretation, and trying to say that making shit up is a valid way to interpret the Constitution.
No amount of sophistry is going to change the fact that we have judges essentially passing laws instead of interpreting them, and that is not acceptable.
>>712577
#REKT
>>712577
Give specific examples. For all we know, you're some fringe lunatic who thinks that the entire concept of Judicial Review is an example of the court legislating from the bench.
>>712577
>No, an examination of the original intent insofar as it can be determined, and to a lesser degree past precedent decides what the Constitution means.
Which is what judges do.
>There is absolutely no excuse for modern judges turning 'it means what we like it to mean' into a system of interpretation.
Yes, because SC judges totally don't write hundred page opinions up, citing every other damned thing the founding father's ever wrote and every other past precedent in the process, all while trying to justify their decision against eight other judges doing the exact same fucking thing.
They totally just wave a magic wand and make it say whatever they want.
...Just because the Supreme Court and the Ministry of Magic have similar logos, does not necessarily mean they operate on the same principles. And simple because you disagree with an interpretation, doesn't mean it's edict, rather than interpretation.
>>712597
>>712594
https://en.wikipedia.org/wiki/Obergefell_v._Hodges
Is the largest example in recent memory that I can think of. The justification is laughable. The 14th amendment does not in any way, shape, or form guarantee a legal right to marry, much less to have a homosexual marriage, a concept that didn't even exist at the time the 14th amendment was written.
This is a clear example of SCOTUS overstepping its authority to force a viewpoint on the American people undemocratically.
>>712616
Libertarians, who also tend to be orignialists or strict constructionists disagree
>>712616
See, this is why I wanted examples, because if this is the one you feel is obvious legislation from the bench, you're nuts. To slightly modify my argument from earlier in this thread:
>the gay marriage decision is just legislating from the bench! SCOTUS can't possibly make the argument that prohibiting citizens from a purely legal institution, based solely on the gender of their partner is a blatant violation of their right to equal protection under the law! And it totally isn't a blatant violation of those same equal protection rights for states to offer full faith and credit clause recognition only to straight marriages and not gay ones!
>>712624
I don't know of any libertarians who think that way, and even if they did, Justice Scalia was right on the money in describing this case.
A ban of homosexual marriage would not have been considered unconstitutional when the 14th amendment was written. For among other reasons, that the concept of homosexual marriage didn't even exist. Homosexuality is as old as mankind, but the idea of them entering into a legal union in pantomime of traditional marriage is entirely a modern concept.
Which is fine. If the people want society to change, so be it. But it was not SCOTUS decision to make. But SCOTUS did make it, they decided that they knew better than the American people, and thus passed this ruling with the flimsiest of pretenses, ending the national debate on gay marriage by fiat.
>>712616
The concept of the 14th amendment existed - the concept of a federal marriage license did not. Once you decided it was necessary for states to recognize each other's marriages, and as a result, for the feds to stick their dicks into it, then you effectively incorporated the process, thus the 14th amendment applies.
If you wanna see something that completely destroys the original intent of amendment, you gotta go to the 2010, 2nd amendment case, that upheld the right to bear arms by making the 2nd amendment apply to the states - not just the feds. Thus the states no longer get to determine what is necessary to their security - their security being the only reason the amendment got in there to begin with.
>>712616
The14th amendment is about the equality of citizens and their rights under the law. Modern marriages are largely legal contracts officiated and recognized by government entities.
It's really not that hard to see how they made their decision.
>>712630
Gay marriage did not even exist as a concept, it wasn't even theorized as something that could possibly exist at the time of the 14th amendment. Marriage had historically been defined as the union of a man and a woman [or in some instances, a man and multiple women] for the general purpose of childrearing. SCOTUS claiming the 14th amendment applies here is ridiculous, it involves ignoring history, ignoring the 14th amendment, and outright redefining terms.
They obviously overstepped the boundaries of their authority to make this decision, and given how close the ruling was [5-4] I don't think I'm some fringe theorist for thinking so.
>>712647
That's like saying that freedom of speech doesn't exist on the Internet, simply because the founding fathers couldn't have conceived of its existence. Or that the 2nd amendment doesn't apply to assault rifles, for the same reason.
The Constitution, nor its amendments, do not become irrelevant, simply because something new comes along. It's only question as to how the old laws fit within the new context.
>>712640
>A ban of homosexual marriage would not have been considered unconstitutional when the 14th amendment was written.
Actually, in California, it would have been. The concept existed, and the California constitution had a clause against making laws that discriminated against sexual preference.
Which is fairly ironic, given how this whole process got launched... ie. Mormons making a Californian constitutional amendment to undo that, and said getting dragged to the Supreme Court, forcing them to finally make a ruling on it.
>>712640
>Scalia's dissent in Obergefell v. Hodges
>right on the money
>arguing that the legislature is allowed to create laws that violate the 14th amendment because 'muh will of the electorate'
>right on the money
You can't possible unironically believe that, your arguments from earlier in the thread are too reasonable, too based in a fairly valid originalist view of the constitution. Unless you, like Scalia, hate teh gays so much that its clouding your judgement on the issue.
>>712647
If marriage is for childrearing, why can sterile couples wed? If amendments only apply to concepts that exist at the time the amendment was created, then how in the fuck are D.C. v. Heller or Citizens' United valid decisions? After all the concepts of a handgun and people actually campaigning for the presidency were completely nonexistent at the time of the drafting of the second and fist amendments? Also, everything >>712654 said. Your arguments strain credulity at best and are on par with 'the Declaration of Independence is totally evidence of the framers intent in the constitution' guy at worst.
>>712654
No, its fundamentally different. This isn't simply the case of applying an old law to a modern circumstance.
The right to bear arms still applies to assault rifles, because its still the same basic concept. Its the right of the people to own weaponry, ideally the same weaponry the government has access to.
The right to free speech? Same thing. Its just the same principle extended to modern technology.
This is an example of the institution itself being redefined, using the 14th amendment as an argument. Its so utterly flimsy a pretense it sickens me to think on how they could write it with a straight face.
>>712646
>>712642
Looking at these two posts sheds more light on it. They basically took marriage, which from the government's perspective really is just a contract with certain perks relating to law and taxation, and said that because of the 14th amendment, you cannot discriminate on these contracts on the basis of gender.
Do you have any idea how exploitable a precedent this sets? You could, using the same logic, try and claim social security by claiming the government can't exclude you from perks on the basis of age. Or even more likely, claim the right to make similiar contracts with multiple people, permitting polygamy nation-wide.
And I'm not making a moral slippery slope argument here, I'm saying purely from a legal perspective, they've set a horrible precedent, and they did it not due to the law, but due to their own moral conscience.
>>712668
>You could, using the same logic, try and claim social security by claiming the government can't exclude you from perks on the basis of age.
You already can draw on SS early under various circumstances, you just get fucked in the long run.
>Or even more likely, claim the right to make similiar contracts with multiple people, permitting polygamy nation-wide.
...And it's only a matter of time, as there's no legal reason not to allow that either, save judicial laziness, when it comes to how messy divorces would be. Plus it's ban is already stepping on various religious rights.
You can already sign your Right of Attorney to anyone and everyone, and that gives them far more power of you and your property than any marriage contract.
>>712668
>You could, using the same logic, try and claim social security by claiming the government can't exclude you from perks on the basis of age
You could, but you wouldn't be convincing anybody with any kind of legal background.
>>712640
>A ban of homosexual marriage would not have been considered unconstitutional when the 14th amendment was written.
For an orignialist that is not the question, the question is whether the equal protection clause, in its original intent, applies in the case of Gay marriage, given the fact that the government now recognizes male/female marriage.
marriage like >>712642 said is essentially a contract, so you have a contract that only a man and a woman can enter into, and receive the material benefits from. this is a violation of equal protection
>>712665
1. A gay marriage ban does not violate the 14th amendment.
2. Its not a question of what marriage 'for', its a question of what marriage as an institution meant up until recent times. By redefining marriage from "A union between a man and a woman [or women]" which is the meaning its held for thousands of years, they took this case beyond simply extending a principle to a modern circumstance, and stepped into actual legislature. Also, I must claim ignorance on both of those decisions you've mentioned as I have not studied them in any depth and therefore have no opinion on them.
>>712687
Honestly I'd prefer by this point if the government simply got out of the marriage business entirely, and simply made it like any other contract, with the persons going into it deciding how its going to work and not work.
Though I stick by the fact that the court overstepped its authority on this decision.
>>712642
incorporation makes original intent more complicated, you have to look the original intent to limit the federal government, and determine whether that now applies to the states under the orignial intent of incorporation
>>712698
Obviously, because its patent nonsense. But then, so is this.
>>712706
The equal protection clause only provides that everyone has equal protection under the law, it does not permit SCOTUS to redefine age-old institutions for the sake of pushing a political agenda.
If there was any precedent at all of marriage meaning "A legal union between persons of the same sex", any precedent at all in history, it would make this argument far more tenable, but as is, its about as stupid as saying that social security can't apply to just old people because that's discrimination by age.
>>712668
Both posters, and you, are wrong about the reasoning in the decision. The reason that the government can't discriminate in marriages on the basis of gender is that it can't be proved that any harm is done to the legal institution by allowing two members of the same gender to be married for such purposes, while civil unions don't mitigate the tangible harm done to same sex couples by making them ineligible for the legal marriage, because any argument that they do is a revival of blatantly unconstitutional 'separate but equal' doctrine. Also, I notice you still haven't addressed the fact that states discriminating between which marriage licenses from other states they recognize on the basis of the gender of the participants alone is blatantly a violation of the equal protection clause.
>>712716
>The equal protection clause only provides that everyone has equal protection under the law, it does not permit SCOTUS to redefine age-old institutions for the sake of pushing a political agenda.
If that institution has taken on material benefits under federal and state law it totally does
>>712718
None of your legal reasoning makes sense, if only because marriage never meant a same-sex union. If marriage had at one point been purely a contract between persons, regardless of sex, this argument would hold perfectly, but this is no such precedent.
SCOTUS redefined the institution. They didn't simply extend the benefits, or repeal a discrimination, they outright changed what the concept meant, which puts this decision firmly under the authority of the legislature[s] not the courts.
>>712722
If that was the case then affirmative action policies, laws protecting women, and fucking social security would be unconstitutional.
Equal protection means the law applies the same to everyone, it doesn't mean the same laws apply to everyone.
>>712729
It stopped being a purely social insitiution when the government started granting marriage licenses. And Scotus ruling only covers the government side of it.
>>712735
Well I think alot of those things are unconstitutional too
>>712735
Those are all unconstitutional though
>>712716
Again, yer missing the point that marriage went from a "religious tradition" to a "legal contract". If the government wasn't involved, SCOTUS wouldn't need to make a ruling. The "age-old institution" had been redefined before it ever reached their desk. Otherwise, it wouldn't legally exist, and be only recognized within the scope of religion.
>any precedent at all in history, it would make this argument far more tenable
...and same sex marriage was already an institution. It was legal in several states DECADES before the SCOTUS decision - there was all the precedent in the world. Indeed, if not for those states that allowed it, they would have had no reason to be involved. Incorporation demands that other states recognize the marriage contracts of those states.
(Not that we all couldn't have easily predicted this would be the example chosen. A complete non-started, when set next to all the actual violations of original intent.)
>>712736
Its not a question of whether its a government institution or not, its a question of terminology.
Marriage MEANT a certain thing. SCOTUS changed the age-old meaning in this decision. And by doing so, they overstepped their bounds.
>>712739
Well sure, but lets at least be consistent here. Try getting half the people who support gay marriage to make that concession.
The point of the matter is, that from a legal standpoint, as the law currently stands, equal protection doesn't mean the same laws apply to everyone, if it did half our current policies would make no sense.
Like it or not, our laws discriminate on the basis of gender, sex, age, etc, purely through the definitions of certain terms meaning certain things, and changing those 'discriminations' means redefining terms and tearing apart social institutions. Which properly speaking is the role of the legislature, not SCOTUS.
I really don't care half as much about the fact that gays can marry, as I do about the massive breach in authority it represents for SCOTUS.
>>711308
This. The parties, lobbyists and other bs is what is making it to where we only have four judges currently and will probably have only four if another Democrat gets elected. Of course it may cause some issues, but it definitely sounds more efficient than old guys arguing which dude gets to sit in a chair and decide what we do the rest of their life
Common law doesn't even work as a system.
>>712744
I never said it was a religious tradition. Personally I'm atheist, and every religion has marriage, so its hardly unique to American Protestants. I'm purely saying what the term has historically meant.
As to its legality in certain states, that still doesn't change the fact that this was a relatively recent phenomena, that was met with extreme opposition.
The natural state would have been to let the legislatures continue debating it, and letting the American people continue to argue over it.
It was not SCOTUS decision to make, to simply override the entire vigorous debate the country was having on this issue and decide for us what the law is going to be.
I do not view a few states permitting gay marriage as a suitable precedent for inventing a right to gay marriage, or even a right to marriage for that matter.
>>712759
The Constitution is the law of the land, so common law is beneath it
>>712729
Look, a central concept in laws that discriminate is that any harm done to those being discriminated against must be balanced against a compelling state interest to engage in discrimination. If the reason for that discrimination is the supposed immorality of the action being discriminated against, then the state must prove that whatever is being discriminated against is actually harmful to society at large. This is why laws against sodomy, or laws against contraception, are unconstitutional. Because engaging in oral/anal sex or using a condom may be deemed immoral by society, but actually doing it harms nobody, so the state has no right to regulate it. Applied to gay marriage, the state must prove that the harm done to homosexual couples by not allowing them to be married, i.e. loss of tax benefits and legal protections offered to straight couples by the legal institution of marriage, is outweighed by some compelling state interest in discriminating against such couples due to harm caused to society by legal recognition of their relationship and provision of them with the same protections afforded to straight couples. Any 'traditional definition of marriage' is completely irrelevant, because that isn't the issue in question. And even if it were, the fact that gay marriage already existed in other states for years before the ruling provides ample room to argue that marriage had been previously defined in several jurisdictions as simply a union between two people.
And again, you've failed to address the breach of the equal protection clause by states offering recognition to out of state marriages between heterosexual couples while denying the validity of ones between homosexual couples. Are you conceding on this point?
>>712751
>Marriage MEANT a certain thing. SCOTUS changed the age-old meaning in this decision. And by doing so, they overstepped their bounds.
The states were already playing with the definition, once the legislature gets invovled the courts do to, by default.
>Well sure, but lets at least be consistent here. Try getting half the people who support gay marriage to make that concession.
The court is not a democratic institution, and I would not want the courts decision to be tied to what the public thinks the law should be.
The courts role is only limited by what is brought before it, If the government starts bestowing benefits on priests for taking holy orders, then the courts can rule on that and establish what holy orders is as far as the law in concerned. If you dont want the government to interfere with social institutions than you cant make laws about them
>>712779
I would argue against ruling the laws against sodomy and contraception 'unconstitutional'. Don't get me wrong, I think they're bad laws. They are really stupid laws. But it is not SCOTUS job to decide whats good and bad, its the legilatures. Honestly that entire string of reasoning strikes me as things the legislature would debate, not the courts.
And I don't think that supposed 'breach' is a breach. The out of state 'marriages' were not marriages per that states definition of the term, and therefore they had no obligation to uphold them.
>>712782
I wouldn't want the courts bound to public opinion either, but neither do I want them to tyrannically ignore the law to push their own opinion.
In any case, life calls, so I'll end the conversation on that note. I will thank all of you for keeping the conversation civil, and wish you all a good evening [or day, as the case may be for some of you].
>>712782
>The court is not a democratic institution, and I would not want the courts decision to be tied to what the public thinks the law should be.
Then you should be against the ruling in question, since judicial activism is more concerned with popular opinion than legal prudence.
>>712798
But the ruling was correct in this case. I might not have written the same opinion but the ruling itself was correct
>>712807
Faulty reasoning cannot create a correct ruling.
>>712384
so literally none of them were fedoras. and all of them were Christians.
>>712798
Popular opinion was against gay marriage. Indeed, this ruling was more against popular sentiment than was the court's ruling against bans on interracial marriage and for integration of schools, for similar reasons.
>>712814
The reasoning seems pretty solid to me, much more so than the dissenting opinion, which seems to be entirely built on "muh feels". ...and, DESU, I don't particularly approve of it, but the logic is sound.
Much like Citizen's United, which I find much more disconcerting, but again, logic was sound enough, even though it's sheer robotic adherence to logic with no attention paid to the consequences.
>>709221
>I don't hate you as a person
I do. Fucker argued that convicted persons shouldn't be able to be exonerated by more recent evidence.
>>712797
>I would argue against ruling the laws against sodomy and contraception 'unconstitutional'. Don't get me wrong, I think they're bad laws. They are really stupid laws. But it is not SCOTUS job to decide whats good and bad, its the legilatures. Honestly that entire string of reasoning strikes me as things the legislature would debate, not the courts.
Very well, you're certainly entitled to hold such an opinion, but know that your opinion goes against decades of jurisprudence on how courts should judge the validity of legislation that discriminates.
>And I don't think that supposed 'breach' is a breach. The out of state 'marriages' were not marriages per that states definition of the term, and therefore they had no obligation to uphold them.
So on the one hand, marriage licenses don't automatically qualify for full faith and credit recognition, and you're right that states can reject licenses that aren't up to their standards. On the other hand, states only rejecting SOME out of state licenses for something and not ALL of those licenses makes the law discriminatory against an entire group, which is a 14th amendment red flag, and thus could make the law subject to the strict scrutiny of the state's compelling interest that I outlined above. It's an issue that the Obergefell made moot, so we won't ever really have a definitive answer.
>>712824
>all of them were Christians
1. No, I explicitly pointed out that Paine was very much NOT a Christian, nor was Franklin.
2. My point was basically that the founders had complex religious beliefs that don't match the claims made by either leftists or right wingers. Yes they were against organized religion, but not the moral teachings of Christ, which runs counter to the secular leftist narrative. Yes they were technically Christian, but they were unafraid to question the church, and the Bible, which runs counter to the religious right's narrative. Your interpretation of my post is disingenuous.
>>712871
Deism and Christianity are not incompatible
>>712832
do you get all of your legal news from clickbait sites?
>>709283
Pretty much this. Judges aren't rabbis.
>>712963
Which is why Hamilton, Adams, Jefferson, and Madison can be said to have features of both. But Paine and Franklin are pure deists. Especially Paine. Franklin could be argued to at least have still considered himself a Christian, even though his self-published religious philosophy contains zero features of christianity. But anyways, the whole damn point is that calling them Christian is a gross oversimplification of the intricate, complex, and deeply personal religious views that each of them had, and is generally done as a political tactic to attempt to reinforce the myth that this is a Christian nation, and that the founders didn't overwhelmingly, diametrically oppose any mixing of church and state.
>>709124
The constitution should mean what it meant when it was drafted. If you want it to mean something different, you should amend it to the meaning you want it to have.
>>709221
Justices are not political commentators. Just because they side with one judicial argument does not mean they side with the content or the social implications of that argument.
Picking out Brown v. Board is not meaningful because the social implications are not supposed to be meaningful to justices.
>>713735
So what you seem to fail to understand is that Brown v. Board is an example of a unanimous, legally airtight decision. Thurmond Marshall conclusively proved to them that even if the facilities provided to black children had been equal, which they most certainly weren't, that segregation would still cause irreparable mental damage to the black students, and thus 'separate but equal' is inherently unequal, and inherently a violation of the equal protection clause. Social implications? Who gives a fuck? So nice try, but picking Brown v. Board is most certainly meaningful. Not because it had major social implications, but because saying you'd have dissented on it is extremely retarded, from a legal perspective.
>>714583
>legally airtight
I know you're probably some high school kid, but there's no such thing.
Coming to a determination about whether there was equal protection before the law is a highly subjective is highly subjective in nature. It cannot be resolved prima facie. While there might be some "mental damage" to black students, concurrently would not white students be affected by similar segregation and by extension face equal "mental damage".
This is the thing about the Internet age. Everyone thinks they have the right of everything, without ever demonstrating the intellectual/educations credentials to prove it.
>>714958
>would not white students also be damaged by segregation
In this particular instance, no, in general yes. If South Africa were, for example, to suddenly institute segregationist policy, and move all white children to new schools, it would cause them similar damage to that seen in black children in the segregationist south. The Doll Studies showed pretty convincingly that segregation causes severe damage to the minority population being segregated, but there's no reason to believe that you couldn't switch the race of the minority and the majority population and still get the same results. The studies also show no evidence of any damage to children of the majority population. While it's true that legal situations where there is a clear and fundamentally correct interpretation of te constitution are certainly rare, such cases do exist, and Brown v. Board was unequivocally one of them. The doctrine of 'seperate but equal' is patently absurd, as demonstrated both in this case, and in the preceding Law School cases.
>>715821
Well, you could easily argue that whites would have trouble assimilating into a modern American society because of the separation. Nevertheless, whichever way one sides, no such determination could be made prima facie. You would have to interrogate a long line of social variables to see that, in act and effect, there was unequal protection through unequal distribution of educational provisions.
But further to that, there's also a question of what the equal protection clause means. Does it refer to negative conditions government allows to apply, or does it refer to negative conditions government intentionally and actively effects. Again, these determinations cannot be made prima facie.
>>716582
Yeah, you clearly have no idea what prima facie means. Or you haven't read the decision/any of the briefs filed before oral arguments. Here, I'll link the fucking opinion for you: https://supreme.justia.com/cases/federal/us/347/483/case.html
To summarize: the Law School cases make it clear that intangibles must be considered alongside objective factors in 14th amendment cases concerning schools, and that the intangibles were demonstrated by the appellants in Brown to show inherent disparity is the product of racial segregation of public grade schools. The implication that the 14th amendment only applies to intentional discrimination has no textual basis, and is absurd. Even if it's unintentional, denying your citizens equal protection under the law is still denying your citizens equal protection under the law, regardless of whether you intended to do that or just allowed it to happen. I'm even going to go so far as to defy you to cite one single US Federal court decision that explicitly has such an absurd reading of the amendment.
