746

Congress does not have authority to re-define marriage inconsistent with its meaning as accepted and understood during the time period our constitution was framed and ratified.

The only lawful way to do so is articulated in Article V, and the States and people therein already rejected the so-called Equal Rights Amendment ____ one reason for its defeat was that it would lead to federally mandated same sex marriages.

Schlafly’s organizations, STOP (an acronym for “Stop Taking Our Privileges”) ERA and the still-active conservative interest group Eagle Forum, warned that the E.R.A. was too broad, that it would eliminate any government distinctions between men and women. They circulated printouts of Senate Judiciary Chair Sam Ervin’s—popular for his handling of the Watergate investigation—invectives against it and trotted out socially conservative specters such as mandatory military service for women, unisex bathrooms, unrestricted abortions, women becoming Roman Catholic priests and same-sex marriage. STOP ERA members would lobby state governments, handing out homemade bread with the cutesy slogan, “Preserve Us From a Congressional Jam; Vote Against the E.R.A. Sham.”

747

No it’s not. You even quoted what he said.

What is it with the lib necessity for dishonest discussion? (You’re not the only one employing it.)

748

You cannot definitively make that statement. Originalism is a theory, which itself is not mandated by the Constitution.

We could abandon originalism today, and your only recourse would be impotent howls of rage.

So don’t tell me what I or congress can or cannot do. I say again, we the people could claim the right under the ninth, and demand that congress secure that right on our behalf.

And nobody needs to give a rip about Madison’s thoughts on gay marriage.

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749

That is untrue.

That would mean that Congress cannot make any laws or regulations unless the people in 1787 could understand it.

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750

Having governance tied solely to the ideas and opinions of long dead men makes no sense.

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751

Right?

How could you even begin to discern Madison’s thoughts on the availability of instant information on anything, global markets, or space flight? The entire notion is just absurd.

I will agree that originalism should be considered, but by no means should it be the alpha and omega of constitutional law.

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752

I have no idea what you mean by “originalism”. But our Constitution specifically recognizes an adherence to “the rules of the common law” [Amendment 7]

keep in mind that in a newspaper article published in the Alexandria Gazette, July 2, 1819, Chief Justice Marshall asserted he could “cite from [the common law] the most complete evidence that the intention is the most sacred rule of interpretation.”

It should also be pointed out that the notable Justice Story, in his Commentaries on the Constitution of the United States (1833) wrote: “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.”

And let us not forget that our very own Supreme Court, in Hawaii v. Mankichi, 190 U.S. 197 (1903), confirms the historical validity of enforcing legislative intent:

”But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”

This very rule concerning legislative intent is also stated by Jefferson in the following words:

“On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

And the noteworthy Chancellor James Kent, in his Commentaries on American Law [1858] confirms the truth of the matter as follows:

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.

In fact, being obedient to the documented legislative intent of our Constitution was acknowledged in HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

”The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.”

JWK

Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records ___ its framing and ratification debates which give context to its text ___ wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

753

It’s how AIDS went too.

754

Sad thing that libs think that’s what the Constitution amounts to.

755

Not interested. I reject your originalism¹ in full. I refuse to have my modern Republic shackled to men in 250 years in the grave.

While I understand the reasonong behind it, I also consider it to be a bad faith method for stifling things that it’s advocates don’t like.

¹I absolutely do not believe that you have no idea what originalism is. For that matter, you if all people telling this lie is absurdity of the highest order.

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756

I prefer that in our system of self government that people who are alive get a greater say than those who are long dead.

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757

They do.

Via amendments.

And the “say” from the 18th century is what is written and what was adopted by all the States, and by subsequent amendments: what is written and voted into code. Not what individuals said.

758

Amendments are for the big things. How Our government operates.

As far as how we govern ourselves… look back as a reference… but it is not the end all and be all of it.

As people who are alive… there is no reason to shackle ourselves to the opinions of people who’s re long dead.

759

Why are you not interested when truth, facts and documentation are PRESENTED TO YOU?

760

That is true, but the ammendment process has become exceedingly difficult. Perhaps too difficult.

And I say we need to reclaim the agility to adress historical wrongs. The ninth ammendment gives us that flexibility.

Also, passing an ammendment isn’t some magical remedy. The promise of the civil war ammendments was not realized for decades after their passage.

But all if this is a seperate issue from the faulty theory of originalism.

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761

Originalism is neither truth or fact.

It is a pernicious legal theory cynically deployed to quash the right that others can legitimately claim.

The sooner it is discarded, the better

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762

You mean like abolishing slavery, extending the right to vote to blacks and women, determining the minimum voting age, etc? I guess it depends on what you mean by “big things”. But there it is, Article V, which is the only lawful way to make legal changes to accommodate changing times.

763

So, according to you the most fundamental rule of constitutional construction, which is adhering to the text of our Constitution and its documented legislative intent, which gives context to its text, is a “pernicious legal theory”? Seems that our Supreme Court disagrees with you:


The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

JWK

The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.— numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.

764

Marriage is perfectly fine being regulated through law and not an amendment.

Define it as between individuals

765

False. Congress is fully authorized to recognize LEGAL (as defined by the State where the civil marriage occurred) civil marriages for Federal purposes including those of white to people of color.

WW

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