Virginia AG and the 14th Amendment

[Gazpacho]

Also, they were foolish for amending the Constitution to allow women to vote.

They should have done it a few years earlier by just proclaiming society has evolved, and therefore it's unconstitutional to prevent women from voting.

The women's suffrage movement had already been underway at the state level for a while before the 19th amendment was ratified.

After all, how can bypassing the difficult amendment process cause problems?

It leaves individual rights subject to majority repeal.

 

[MikeMangum]

That's sort of fascinating from a historical/political perspective. You rarely hear about the intent of people amending the Constitution. Somehow the original intent of people who were correcting problems with the original intent of the Constitution determines how we can apply that law?

The 14th amendment exists because the framers couldn't anticipate (or more accurately, didn't care) that states would deny their citizens liberties guarded by the Bill of Rights. Yet the people correcting for such a lack of anticipation must be followed because they couldn't anticipate states denying their citizens liberties guarded by the Bill of Rights.

What an odd perspective.

Well, the perspective is "this is the law so it must be followed or changed with an amendment".

I happen to strongly disagree with the idea that the 14th amendment doesn't apply to homosexuals. The 14th amendment protects all rights for everyone equally, and uses the phrase "all persons", with the only qualifications between citenzenship or residency. It does not say "all person except for gays", nor does it say "all person except for those that are unpopular"; in fact, the 14th amendment was specifically written to ensure the protection of rights for an unpopular group.

Saying that the 14th amendment doesn't protect gays...well, I'll stop now because the filter would just turn the rest into asterisks. What a *********** moron.

 

[Grizzly Adams]

If we can't "rewrite the Constitution"

Those strawmen are pretty easy to knock down, aren't they?

 

[Grizzly Adams]

It's the text, not the precise meaning of the text, that cannot be changed without an amendment.

Then I reassert my original question: what good is it?

If you can change the meaning whenever you want, the text is rather useless.

 

[KingMerv00]

Those strawmen are pretty easy to knock down, aren't they?

So you ignored the substance of my post to pick nits? Fine...

If we can't reinterpret the Constitution then incorporation never happened and the 2nd Amendment doesn't apply to the states. Do you think states should have the power to ban guns?

 

[MikeMangum]

So you ignored the substance of my post to pick nits? Fine...

If we can't reinterpret the Constitution then incorporation never happened and the 2nd Amendment doesn't apply to the states. Do you think states should have the power to ban guns?

It wasn't a 'reinterpretation' that incorporated gun rights to the states, it was the 14th amendment.

 

[Gazpacho]

Then I reassert my original question: what good is it?

And I'll repeat my answer: It's a framework.

If you can change the meaning whenever you want, the text is rather useless.

If you want an exact formula that gives one answer for every possible situation, then I suppose you would find it useless. However, the constitution was not imagined to be such a thing until the 1970s.

Here's an example, from US v. Lopez, of how the constitution is useful despite being less than absolutely precise:

To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

 

[KingMerv00]

It wasn't a 'reinterpretation' that incorporated gun rights to the states, it was the 14th amendment.

The second amendment wasn't officially incorporated until just this week. It took 140 years. If that's not an reinterpretation, I don't know what is.

I don't see the 2nd amendment or even the Bill of Rights mentioned in the 14th amendment. If the authors wanted to apply the Bill of Rights to the states, why didnt they just say so? Where do you get the power to make such specific declarations in the absence of a clear mandate?

 

[autumn1971]

Then I reassert my original question: what good is it?

If you can change the meaning whenever you want, the text is rather useless.

Wow, any case which interprets the text of the Constitution in light of new information implies that I get to enact massive legal changes at the federal level!

No, it doesn't.

There is a standard for Constitutional interpretation that has been set pretty darn high. Even the most "liberal" SCOTUS is essentially conservative, and none have yet reflected "passing fads" in their interpretations.

 

[bit_pattern]

Wow. Cuccinelli really is an A-grade jerk. First covering up the "obscene" Seal of Virginia, then launching a legal attack on academic freedom, now this. He's really building a national profile for himself, sure hope we never see him taking a run for the WH

 

[Beerina]

The women's suffrage movement had already been underway at the state level for a while before the 19th amendment was ratified.


It leaves individual rights subject to majority repeal.

They are anyway, ultimately, should society "evolve" in one way or the other.

George Will has pointed out both sides have their beloved items from "evolving" society, and their other beloved items entrenched in the Constitution via amendment.

Do we feel morally superior because "everyone knows" that such-and-such should be so-and-so a way? We all "believe" it and "feel" it?


I would prefer the amendment process be stuck to, even if it means a few more years for the change to occur. There's way too much trouble you can get into with politicians puffing things that "feel right".

 

[ponderingturtle]

It wasn't a 'reinterpretation' that incorporated gun rights to the states, it was the 14th amendment.

So for some reason the 14 amendment applies to black people and guns, but not women or homosexuals? Where do you get that idea?

 

[Gazpacho]

So for some reason the 14 amendment applies to black people and guns, but not women or homosexuals? Where do you get that idea?

Whoa there, let's respond to what people say, not what we imagine they said:

I happen to strongly disagree with the idea that the 14th amendment doesn't apply to homosexuals.

Anyway, the idea that courts discover a "true" meaning for the constitution, rather than constructing one, breaks down when you try to explain rulings like Brown v. Board of Education or West Coast Hotel v. Parrish.

 

[Suddenly]

Then I reassert my original question: what good is it?

If you can change the meaning whenever you want, the text is rather useless.

Virtually all text is ambiguous to some degree. The Constitution is no exception, far from it, and is deliberately imprecise in sections. The text of the 14th is non-specific. It does not specify race or gender, nor does it other classifications it has been held to cover such as discrimination based on wealth. As we move along as a society, our ideas as to these things change.

The framers used these sorts of loosely stated principles such as "due process" and "cruel and unusual" rather than trot out laundry lists for a reason.

For example, our ideas of "cruel and unusual" have changed dramatically in the last 220 years. Does this mean we have to pass laundry list amendments to bring the document up to date? Do we go through the farcical practice of re-ratifying the language so to hit a reset button as to how it is to be interpreted?

In practice we keep the term in the text and ask ourselves what that means to us. No more executing children, for one thing.

The concept of "plain meaning" as to Constitutional Law is largely a myth. It works when dealing with things like the number of Senators, but when dealing with the more vague concepts it is nonsense. "Cruel" has no obviously applicable meaning as to punishment. Hanging? Firing Squad? Brazen Bull? Bed Without Supper? Whatever John Marshall says?

 

[pgwenthold]

For example, our ideas of "cruel and unusual" have changed dramatically in the last 220 years. Does this mean we have to pass laundry list amendments to bring the document up to date? Do we go through the farcical practice of re-ratifying the language so to hit a reset button as to how it is to be interpreted?

My example of how things change is the 2nd amendment, and "arms." It is trivially obvious that when the framers referred to the right to bear arms, they were not talking about automatic weapons or bazookas. They COULDN'T have been, because there were no such things back then.

So when automatic weapons and bazookas were invented, it was not the framers who determined whether they would be classified as "arms" or not. It would be easy to claim that automatic weapons are not protected by the second amendment because they do not constitute the types of arms that are meant to be protected. That argument hasn't worked so well for automatic weapons, yet, but it has worked for bazookas. Where is the line, and who says it is static?

 

[TraneWreck]

It's interesting how the same process of interpreting the words of the Constitution to match contemporary understanding is a "controversy" with respect to some issues, and so totally taken for granted in others that no one ever discusses the issues. To whit:

"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

That's what's known as the "Contract Clause."

Now this raises an interesting question. Does that clause only exist with reference to contract law as it existed in 1787? Legally, the meaning of the word "contract" is substantially different now than it was when the Constitution was ratified. Yet no one on Earth suggests that the framers only meant that states couldn't interfere with "obligation of contract" in terms of the state of the law back then.

Why? Don't we need to go through the amendment procedure every time a case-law generates a different interpretation of contract law? Or do we just accept that these things will change over time and automatically update the Constitution? I don't see the originalists bitching about the application of 21st century contract law.

The 14th amendment begins "All persons born or naturalized in the United States..." The courts have since modified the word "persons" (or should) in the exact same way they've modified the word "contract." The world has yet to end.

 

[MikeMangum]

The second amendment wasn't officially incorporated until just this week. It took 140 years. If that's not an reinterpretation, I don't know what is.

I'm assuming you meant re-incorporated after the Slaughterhouse cases?

I don't see the 2nd amendment or even the Bill of Rights mentioned in the 14th amendment. If the authors wanted to apply the Bill of Rights to the states, why didnt they just say so? Where do you get the power to make such specific declarations in the absence of a clear mandate?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

http://www.cato.org/pub_display.php?pub_id=1185

Shortly after the Civil War, the American people amended the Constitution in an effort to better protect individuals against state violations of their rights. Under the Privileges or Immunities Clause of the new Fourteenth Amendment, constitutional guarantees against the federal government could be raised for the first time against state governments as well. Although targeted initially against the "black codes" that were emerging in the postwar South, the amendment was written broadly to protect all Americans.

But 125 years ago, in 1873, in the infamous Slaughterhouse Cases, a deeply divided Supreme Court effectively eviscerated the Privileges or Immunities Clause. Since then courts have tried to do under the Due Process and Equal Protection Clauses of the amendment what should have been done under the more substantive Privileges or Immunities Clause. The result has been an erratic and often groundless Fourteenth Amendment jurisprudence that has pleased neither liberals nor conservatives, yet both oppose reviving the clause. Liberals tend to favor the latitude judges now have. Conservatives fear revival will lead to still more "judicial activism."

Are you seriously going to argue that the 14th Amendment was not enacted, in large part, to protect the rights of blacks in the south from their own state governments?

ETA:

Black Codes.

ETA2:
http://www.constitution.org/col/intent_14th.htm

In debate on S. 61, the Civil Rights Bill, some Western senators wished to exclude Indians and Chinese from citizenship. Williams of Oregon argued that if Indians were citizens, then state laws that prohibited whites from selling arms and ammunition to Indians would be void.[12] At a time when the suppression of Indians and the seizure of their lands was proceeding in earnest, it was considered unacceptable to recognize a right of Indians to keep and bear arms. Thus, the Senate voted to define all persons born in the United States, without distinction of color, as citizens, "excluding Indians not taxed."[13]

...

The House then returned to debate on the bill. Supporting its passage, Representative Ignatius Donnelly noted that "there is an amendment offered by the distinguished gentleman from Ohio [Mr. Bingham] which provides in effect that Congress shall have power to enforce by appropriate legislation all the guarantees of the Constitution."[15] Once again, Bingham's draft of the Fourteenth Amendment was seen as protecting Bill of Rights guarantees.

On February 2, Davis introduced a substitute for S. 61, the Civil Rights Bill. It declared that any person "who shall subject or cause to be subjected a citizen of the United States to the deprivation of any privilege or immunity in any State to which such citizen is entitled under the Constitution and laws of the United States" shall have an action for damages, and that such conduct would be a misdemeanor[16] (emphasis added). Davis' substitute suggests that even opponents of the Civil Rights Bill were willing to concede that the explicit guarantees of the Bill of Rights should be protected. Davis grounded his compromise bill in the privileges and immunities clause of article IV.[17]

The phrase "priveleges or immunities" is even broader than just the Bill of Rights:

This appears to be the first reported draft of what would become § 1 of the Fourteenth Amendment. Note that it substituted the legal term of art "immunities" for "rights", in a context that makes it clear the meaning is equivalent, but chosen to emphasize that it is rights against the actions of government that is intended, and that it included all such rights, not only those mentioned in Amendments 1-8, but those in the original Constitution, the unenumerated rights of the Ninth Amendment, and the right recognized in the Tenth Amendment not to have government exercise undelegated powers.

ETA3:
Thadeus Stevens, one of those on the committee that drew up the 14th amendment:

Freedmen, the Fourteenth Amendment, and the right to bear arms, 1866-1876, page 109:

“Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty,” Stevens said. “The Fourteenth Amendment, now so happily adopted, settles the whole question.”