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  •  It is clear they intended to prohibit (3+ / 0-)
    Recommended by:
    Clem Yeobright, VClib, MPociask

    discrimination based on race.  So, Scalia is fine with taking a principle that they clearly intended -- no discrimination based on race -- and applying that to the situation before the Court.  

    It is not clear, in his view, that in 1868, they intended to prevent all other kinds of discrimination -- based on age, based on gender, based on disability, based on weight, based on sexual orientation, etc.  After all, it took another Constitutional amendment to give women the right to vote, so pretty clearly nobody who voted to pass or ratify the 14th Amendment in 1868 thought they were putting into the Constitution a prohibition against discrimination based on gender.  

    It's a matter of whether you apply what the people put into the Constitution and not what they didn't put into the Constitution, or you believe the question of what is, or is not, in the Constitution (i.e., what it means) changes with the times.  

    •  Huh? (3+ / 0-)
      Recommended by:
      JesseCW, Adam B, MPociask
      It is clear they intended to prohibit discrimination based on race.
      Sure—some varieties of "discrimination based on race." But clearly not that one.

      Why not, instead, say that "they" intended to prohibit invidious discrimination? Discrimination against disempowered or despised groups? Discrimination based on morally irrelevant characteristics?

      All of those (and many more functionally equivalent) glosses on the Fourteenth Amendment would be just as accurate—i.e., true as a general statement, dubious in specific application—as "they intended to prohibit discrimination based on race" is. So why pick the race one specifically? Why pick that focus, and that level of generality?

      It's an entirely arbitrary choice, and one that can't possibly be grounded in the Constitutional text. Which means that Scalia's pretenses about "textualism" and his own supposed role as a dispassionate applier of textual reality are a crock.

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