The Court has too much unchecked power, but I do take great comfort in knowing that we will have a long conservative era where now young children will be able to live out most of their formative years without being subjected to liberal jurisprudence. The Trump legacy is now indelibly marked on a generation. The Republican blockade of Obama's attempt to select a justice is now appearing all the more brilliant and all the more important.

I'm writing this comment then immediately going to bed, and here it goes:

*ahem*

...The Fuck?

My post was just a kind reminder that the extraordinary moments in the political cycle that are viewed as heartbreaking by one side are viewed gleefully by the other.

The Court has too much unchecked power, but I do take great comfort in knowing that we will have a long conservative era where now young children will be able to live out most of their formative years without being subjected to liberal jurisprudence. The Trump legacy is now indelibly marked on a generation. The Republican blockade of Obama's attempt to select a justice is now appearing all the more brilliant and all the more important. — Hanover

:strong: :wink:

Ah yes wonderful conservative jurisprudence. It's also not much a "political cycle" when the Supreme Court has been majority conservative for 40 years.

Tiff, you have two teenage sons, correct? I imagine one day they may have girlfriends who may one day become your daughters-in-law and heaven forbid this, but the new conservative court may very well decide within the next 20 years to overturn Roe v. Wade, and either allow states to determine abortion rights or Federally ban abortion nation-wide, and again, heaven forbid, but one day your daughters-in-law may be told by their doctor that they are carrying your sons stillborn, or a child with a serious terminal condition, that they must carry to term because abortion will most assuredly be illegal in Arizona and I know you would love your hypothetical daughters-in-law because how could you not love the women whom your sons married, and I know you would hate to see them in that pain that could have been avoided if only Roe v. Wade were not overturned by a conservative court that you are now gleefully celebrating, and if this hypothetical scenario does not happen to you in particular, you can be very much assured that it can happen and will happen to some other woman should Roe v. Wade be overturned (by six men, of course), which again, is a very real possibility.

With a decidedly conservative court, we can be assured the labor unions will continue to be beaten back (as most recently demonstrated by the recent blow to public-sector unions), hurting stronger wage growth and stronger worker rights, and we can be assured that LGBT rights will not progress any further, and could be scaled back in some cases (although a majority of Americans now support same-sex marriage, so the court may be more hesitant to chip away at gay rights).

The outrageous Citizen's United decision will not be overturned, and a deluge of money will be continue to be poured in politics by wealthy individuals for their own self-interested purposes, so be assured that your voice will matter less and less in the political realm as it's overshadowed by a wave of cash, but I imagine, Tiff, that you'll be swayed by the influx of deceitful political campaigns paid for by wealthy individuals who care only about their bottom-line.

I could get into gerry-mandering and voting rights, or gun control, etc. but it's all just too much now.

What's wrong with discussing loyalty? Isn't loyalty an important quality in your friends, in people you associate with, people you do business with, etc.? — Agustino

As @Michael stated, a member of the Supreme Court's loyalty, as a member of the judicial branch, ought to be only towards the United States. Not the office of the Presidency.

Where does your copy of the Constitution speak of the right to abortion?
Why should I be required to fund a union that sends part of that money to political candidates I don't support?
Why does the government have the right to limit the way free speech is funded?

Should a Justice worry about the outcome of the decisions when he or she decides, or should he or she just decide based upon the Constitution says? The word "Constitutional" has been twisted by the left to mean "moral," and then the debate centers on such questions as "how would you like it if a woman were forced to have a baby she didn't want" and the like. Let us assume it would be horribly immoral to force such a pregnancy to term, granting all of your points as valid, how does that make it unconstitutional unless you really just mean immoral? I don't hear you arguing vehemently that the penumbra of the Bills of Rights demands the legality of abortion (The Roe v. Wade reasoning), largely because it's preposterous. You see no problem with slapping down a rule just because you think it's right even though the Constitution says nothing about it?

And let us assume you have some other far reaching way of interpreting the Constitution, you can't see any legitimacy in someone else disagreeing with that approach and actually insisting upon looking at the document?

To clarify, I mean the person holding the Presidency. No, a member of the Supreme Court should not swear loyalty to the President.

So then I'm not quite sure where your gleeful reaction to a conservative court is coming from. It seems highly misplaced.

Conflating the Constitution with morality is most assuredly a right-wing position, brought on primarily through the vacuous 'Originalist' interpretation on the Constitution which would shackle this Nation to the 18th century.

Should a Justice worry about the outcome of the decisions when he or she decides, or should he or she just decide based upon the Constitution says? — Hanover

A little of both. The US Constitution is our touchstone. Its the oldest constitution in the world because of the flexibility we allow in interpretation.

If we get rigid about it we'll lose it.

I don't hear you arguing vehemently that the penumbra of the Bills of Rights demands the legality of abortion (The Roe v. Wade reasoning), largely because it's preposterous. You see no problem with slapping down a rule just because you think it's right even though the Constitution says nothing about it? — Hanover

The Constitution protects a person's liberty. Is it preposterous to rule (as the Supreme Court did in Roe vs Wade and Planned Parenthood v. Casey) that the choice to have an abortion is a liberty, and if so why? It's not as if the Constitution actually provides an exhaustive list of what it means by the term.

Conflating the Constitution with morality is most assuredly a right-wing position, brought on primarily through the vacuous 'Originalist' interpretation on the Constitution which would shackle this Nation to the 18th century. — Maw

I was saying the left conflates the Constitution with liberty, not concerning themselves with the actual words of the document, but instead it's generalized meaning. If a statute were passed in the 18th century, wouldn't we be bound by the words they used at the time? It's not like we can't change the words if the times have changed, but if we don't, then it sure seems we're always going to be stuck with what we said when we said it.

A little of both. The US Constitution is our touchstone. Its the oldest constitution in the world because of the flexibility we allow in interpretation.

If we get rigid about it we'll lose it. — frank

I don't know what it means to lose the Constitution, as if one day we'll just stop reading it. A real way for a document to lose meaning is to make it mean whatever you want it to mean. If you're not going to really pay attention to the words, but you're going to just make if do whatever you can't get the legislature to do for you, then the words become meaningless.

The Constitution protects a person's liberty. Is it preposterous to rule (as the Supreme Court did in Roe vs Wade and Planned Parenthood v. Casey) that the choice to have an abortion is a liberty, and if so why? It's not as if the Constitution actually provides an exhaustive list of what it means by the term — Michael

If the list of liberties did include abortion, why was it illegal in every state upon ratification of the 14th Amendment, which uses the term "liberty" you're relying upon? When the 13th Amendment was ratified, the slaves actually became free. Why didn't abortion stop upon passage of the 14th? Likely because it didn't mean that?

And to be clear, the right to liberty that was found in the 14th Amendment isn't some generalized notion of the right to abortion, but it is a complex system of rights divided by trimester, where one has lesser rights to abort each trimester and the state has greater rights to regulate as each 3 month period elapses. That is a bit preposterous. In fact, it sure sounds like judicial legislation. I would suspect that if pre Roe v. Wade we put 100 legal scholars in separate rooms and asked them to determine if there were a Constitutional right to abortion and, if so, to set it out, none would have come up with the reasoning and three trimester system found in Roe v. Wade.

A real way for a document to lose meaning is to make it mean whatever you want it to mean. If you're not going to really pay attention to the words, but you're going to just make if do whatever you can't get the legislature to do for you, then the words become meaningless. — Hanover

And do you think that has happened to the US Constitution?

If the list of liberties did include abortion, why was it illegal in every state upon ratification of the 14th Amendment, which uses the term "liberty" you're relying upon? When the 13th Amendment was ratified, the slaves actually became free. Why didn't abortion stop upon passage of the 14th? Likely because it didn't mean that? — Hanover

Because the 13th explicitly mentions slavery, whereas the 5th and 14th don’t explicitly mention abortion, and so it requires a case to be brought to the Supreme Court to argue that such-and-such a thing is a liberty and so protected, which eventually happened. I’m sure the due process clause has been used to strike down other laws that forbade liberties that also aren’t explicitly listed in the Constitution.

It’s no different to using the First Amendment to protect Citizens United. There’s no mention of campaign donations in the Bill of Rights yet the court ruled that they count as a kind of speech.

I think that's the road we're going down. When a document means anything you want it to mean, it really means nothing at all. I also have trust in the democratic process and don't think we need judges steering our progress based upon what really amounts to matters of their conscience.

And to be clear, the right to liberty that was found in the 14th Amendment isn't some generalized notion of the right to abortion, but it is a complex system of rights divided by trimester, where one has lesser rights to abort each trimester and the state has greater rights to regulate as each 3 month period elapses. That is a bit preposterous. In fact, it sure sounds like judicial legislation. I would suspect that if pre Roe v. Wade we put 100 legal scholars in separate rooms and asked them to determine if there were a Constitutional right to abortion and, if so, to set it out, none would have come up with the reasoning and three trimester system found in Roe v. Wade. — Hanover

Hence the due process. Liberties can be restricted if doing so serves some greater good, and the case was made that the closer to viability the more reason there is to restrict this liberty.

Although your argument here is less a case for abortion not being a liberty and more a case against allowing abortion to be restricted even in the latest stages.

I think that's the road we're going down. When a document means anything you want it to mean, it really means nothing at all. I also have trust in the democratic process and don't think we need judges steering our progress based upon what really amounts to matters of their conscience. — Hanover

The road we're going down? If we are in fact on that road, then give me an example. What part of the constitution has become meaningless due to loose interpretation?

We may have rights that aren't specified in the constitution. A lot of states will uphold the right to abortion even if Roe v Wade is overturned. The hardship will be on poor and young women who live in anti-abortion states.

[

Hence the due process. Liberties can be restricted if doing so serves some greater good, and the case was made that the closer to viability the more reason there is to restrict this liberty. — Michael

This is confusing. There are two types of due process: procedural and substantive. Procedural due process requires, at a minimum, notice and hearing before you can be deprived of something you were otherwise entitled to. For instance, you have the right to a fair proceeding before they send you to jail or fine you or take your property. Substantive due process simply describes where the legislative power ends and there is a right you are entitled to. It is subject to much debate. You seem to be arguing that the trimester system is a type of procedural due process, but it's not. I see what you're saying, that the trimester system is a way of making abortions fair, but really the trimester system is a description of the actual right that was extrapolated somehow from the Constitution, describing where the State's interest in regulating abortion begins and ends.

Although your argument here is less a case for abortion not being a liberty and more a case against allowing abortion to be restricted even in the latest stages. — Michael

My argument is entirely one of whether abortion is a right set out in the Constitution. I am pro-choice and believe a better society is one that allows abortion, having no real objection to the trimester framework. I just submit it's a legislative function to make such laws and it's disingenuous, intellectually dishonest, and an over-reach by a non-democratic body to claim they found the right to abortion in our highest, most controlling document that trumps (not Donald) everything else.

You seem to be arguing that the trimester system is a type of procedural due process, but it's not — Hanover

I meant substantive due process. Despite the right to liberty, imprisonment isn't unconstitutional. Despite the right to free speech, criminalizing perjury is allowed. Despite the right to bear arms, some types of weapons are forbidden. Nowhere (as far as I know) does the Constitution actually specify the limits of (at least some of) these rights. It is for the Supreme Court to decide, which it does, and that's entirely appropriate. I don't see why placing restrictions on abortion is any more an overreach than the aforementioned restrictions. Or would you argue that the Supreme Court is/would be wrong in those cases too?

My argument is entirely one of whether abortion is a right set out in the Constitution. — Hanover

Liberty is a right and the Supreme Court decided that abortion counts as a liberty, just as free speech is a right and the Supreme Court decided that campaign donations count as speech. They have to make these kinds of decisions because the Constitution didn't come with a glossary.

The road we're going down? If we are in fact on that road, then give me an example. What part of the constitution has become meaningless due to loose interpretation? — frank

And this responds to @Michael's post as well regarding substantive due process.

A quick history of this. The 14th amendment was passed following the Civil War in 1866 that stated, "nor shall any State deprive any person of life, liberty, or property, without due process of law."

In historical context it appears to mean that you can't take people's stuff or deprive them of basic freedom without first giving them a fair trial and opportunity to be heard. In fact, that's how it was interpreted initially and it was referred to as the right to procedural due process. The Amendment was then used to make some of the Bill of Rights applicable against the states (but not all). That is, it was asserted that some of the basic liberties set forth in the Bill of Rights were instances of "liberty" that a state could not deprive you of. A couple of notable examples where a state can deprive you of a right listed in the Bill of Rights are the right to a trial by jury in a civil suit and the right to a grand jury (the federal government cannot deprive you of such a right in a federal proceeding).

The idea of making sure all people receive fair trials makes sense in the historical context of blacks having just been emancipated and the idea of making the federal constitution applicable to the states makes sense since in the historical context of the states in rebellion having just been brought back into the union.

So far so good. The issue is that if the Court has recognized that certain enumerated rights are applicable to the states, it can now start deciding which unenumerated rights will become applicable to the states because the 9th Amendment says that there are some rights not enumerated. And this is where this concept of substantive due process derives (as opposed to procedural due process), which is that we can now look for other unenumerated liberties and demand that the state protect them.

Fast forward to 1905 with the Lochner case, a case striking down economic regulations that were intended to protect workers by limiting how long they could work in a given week. That case said it was unconstitutional to regulate how a worker could decide how he wished to freely contract to labor. There were additional Supreme Court cases that followed that similarly protected economic substantive due process, but in 1937 that era ended with a case striking down Lochner and making clear that the Court would allow employment regulation and it would exercise great caution in locating new unenumerated rights.

Fast forward to 1965, which is when the Court found a rejuvenated interest in finding unenumerated rights, changing course from the era of caution. Moving through the 60s and 70s, it was determined that some of the unenumerated rights that we had were the right to use contraception, the right for interracial couples to marry, the right to abortion, and the right to engage in sodomy (that was in the 90s) It was found however that we don't have the right to state assisted suicide.

In the 1960s, it was decided that there would be no specific formula for deciphering these rights, but the Court was just to make a case by case assessment. In 1997, a case indicated that the Court ought to recognize those unenumerated rights "deeply rooted in the in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” However, this formula was not used in 2015 when it was determined that gay marriage was an unenumerated right.

So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices.

That hardly sounds like they're following rules or laws, but just sort of deciding. And they don't just make generalized holdings like "you have the right to an abortion." They say, "you have the right to an abortion in the first trimester" and they lay out a very specific rule, as if all of that is a sacred right.

I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution. It then becomes a moral statement decreed by their atheistic god or something and it stands forever immovable. I think it's clear that the Court is just looking to public sentiment when it finds these rights and they change with the political climate. That's not interpretation of a document. That's just what a good politician does.

So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices.

That hardly sounds like they're following rules or laws, but just sort of deciding. And they don't just make generalized holdings like "you have the right to an abortion." They say, "you have the right to an abortion in the first trimester" and they lay out a very specific rule, as if all of that is a sacred right.

I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution. It then becomes a moral statement decreed by their atheistic god or something and it stands forever immovable. I think it's clear that the Court is just looking to public sentiment when it finds these rights and they change with the political climate. That's not interpretation of a document. That's just what a good politician does. — Hanover

The problem, though, is that the Constitution doesn't define "life", "liberty", "property", or "speech", so how can the Supreme Court determine if a law wrongly infringes on these rights? If the Constitution doesn't tell us what these things are, and if it's wrong to infer anything that isn't explicit in the Constitution, then such rights are effectively meaningless.

By necessity the Justices have to look outside the Constitution to determine if something like abortion is a liberty or if something like campaign donations count as speech.

The problem, though, is that the Constitution doesn't define "life", "liberty", "property", or "speech", so how can the Supreme Court determine if a law wrongly infringes on these rights? If the Constitution doesn't tell us what these things are, and if it's wrong to infer anything that isn't explicit in the Constitution, then such rights are effectively meaningless. — Michael

The slippery slope of your position is that nothing can be explicit because if we don't know what life, liberty, property, and speech is, we don't know what slavery is either and so maybe they were never emancipated, and maybe we don't know what we're saying to each other right now either.

Anyway, there are variety ways of interpreting words, one of which is to look at how "liberty" was used in 1866 when it was used, and it most clearly did not refer to abortion or sodomy. It's also possible to set up a standard that can be followed, but the Court is reluctant to do that because they want that to change that as well over time. My point here being that they've not defined liberty, they've given us some examples of it.

Why doesn't my right to "liberty" include the right to own a cat? If you can make a legitimate case for why it would be unconstitutional for the state to regulate my right to cat ownership under the 14th Amendment, have you not made the Constitution pretty meaningless? What is the Court's working definition of "liberty" and why does it include abortion but not assisted suicide, sodomy, but not the right to work 70 hours per week?

So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices. — Hanover

You just did a wonderful job of explaining how we currently understand what the 9th and 14th Amendments mean, so obviously they aren't meaningless. If some familiarity with precedents is required to fully understand the law, that's business as usual.

Thomas Jefferson was asked to rewrite the statues of Virginia after the revolution (it was known that Virginia's law would become the model all the states would follow). Jefferson refused, saying that every word in a law code is the beneficiary of generations of lawyerly wrangling and it would be wrong to curse future lawyers with having to wrangle over a totally new set of words. So Jefferson knew that the meaning of the words continually evolves. Virginia's law still includes the Magna Carta, which most certainly is not interpreted today the way it was in 1215. Would you seriously hold that it should be?

I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution. — Hanover

Are rightists generally opposed to contraception, intermarriage, abortion, and sodomy? I don't think so. And if they are, Congress can further amend the constitution to clarify and all's well.

Anyway, there are variety ways of interpreting words, one of which is to look at how "liberty" was used in 1866 when it was used, and it most clearly did not refer to abortion or sodomy. — Hanover

I think this is the wrong way to understand language. You and a slave owner might mean the same thing by “moral” but disagree on which things are moral. So we and the people of 1866 might mean the same thing by “liberty” but disagree on which things are a liberty. The original meaning interpretation of the Constitution requires that we consider what the people who wrote it meant by the term, and presumably it meant what it does now, even if we have a different understanding of which things are covered by that meaning.

You just did a wonderful job of explaining how we currently understand what the 9th and 14th Amendments mean, so obviously they aren't meaningless. If some familiarity with precedents is required to fully understand the law, that's business as usual. — frank

What does "liberty" mean and how is it being used in the various cases I cited? When faced with a novel issue regarding whether something is a substantive right, how do I go about that analysis so that I might expect my conclusion would be consistent with someone else's? If there is not standard to determine what is a substantive right, how can I ever say someone was right or wrong in their conclusion?

Thomas Jefferson was asked to rewrite the statues of Virginia after the revolution (it was known that Virginia's law would become the model all the states would follow). Jefferson refused, saying that every word in a law code is the beneficiary of generations of lawyerly wrangling and it would be wrong to curse future lawyers with having to wrangle over a totally new set of words. So Jefferson knew that the meaning of the words continually evolves — frank

That's not what Jefferson was saying. America inherited its laws from England and part of the common law tradition is that judges interpret the meaning of laws and render binding legal opinions explaining what the laws mean. His point is well taken, that if you write a whole new set of laws, you're going to discard perhaps hundred of years of precedent clarifying the meaning of those laws. This doesn't point to the evolving meaning of words, but actually the opposite, which is that over time the meaning of statutes become more clear and more well defined based upon precedent. Courts reversing themselves and changing the meaning of terms does occur from time to time, but that can be based on all sorts of things and the role of stare decisis is a matter of debate.

I don't really see what Jefferson is saying here is applicable to how judges are to extract meaning from terms. Jefferson's comment relates to the significance of precedent. Our question deals with Constitutional interpretation and what standards you use to determine meaning from words.

Virginia's law still includes the Magna Carta, which most certainly is not interpreted today the way it was in 1215. Would you seriously hold that it should be? — frank

You'll have to give the cite to where the Virginia Code contains excerpts from the Magna Carta translated from its medieval Latin so I can see exactly what you're talking about.. As your Jefferson quote made clear, the US did accept the common law interpretations from the English courts and you can find such references in very old cases. So, yes, if there were a situation that cited a Virginia statute that originated with the Magna Carta and there were ancient court interpretations of those rules, that would be helpful in deriving meaning of the statute. Of course there's over 800 years of additional interpretation that needs to be considered as well.

I think this is the wrong way to understand language. You and a slave owner might mean the same thing by “moral” but disagree on which things are moral. So we and the people of 1866 might mean the same thing by “liberty” but disagree on which things are a liberty. The original meaning interpretation of the Constitution requires that we consider what the people who wrote it meant by the term, and presumably it meant what it does now, even if we have a different understanding of which things are covered by that meaning. — Michael

The only way we can possibly ascertain the meaning of a word used in 1866 is by looking to how it was used. And what we know is that liberty did not include the right to abort, to intermarry, to engage in sodomy, and to marry someone of your same gender. I think it's clear that the word "liberty" means something quite different today than when it was written. You seem to be saying that it means the same today as before, but how do you know that if all indications are that they meant something far different.

But let's clarify, what is meant by "liberty," and how would I know if I have a right to cat ownership? My guess is that I don't, largely because it's not a hot-button issue for the left and it doesn't have to do with relationships or sexuality in some way. As far as I can tell, the unenumerated 11th right is the right to marry, to have sex with whoever I want, to have whatever sort of sex with I want, and to discard the remains of that sexual encounter without government interference. Isn't that really what "liberty" really is here? And when I look at the enumerated rights, this 11th right doesn't seem to flow that well with the other rights, like the right to free speech, the right against illegal searches and seizures, the right to counsel, and the right to be free from cruel and unusual punishment. I mean, really, you derived the right to have sodomy by extrapolating from the other amendments?

What does "liberty" mean and how is it being used in the various cases I cited? When faced with a novel issue regarding whether something is a substantive right, how do I go about that analysis so that I might expect my conclusion would be consistent with someone else's? If there is not standard to determine what is a substantive right, how can I ever say someone was right or wrong in their conclusion? — Hanover

The concept of rights is arguably Rome's greatest gift to us. The original meaning refers us to the ways of nature. For the Romans, right and health were identical. The rights of a citizen (and slaves as well) became known by observation of what is most life-giving to individuals and to society as a whole.

So it would be appropriate in regard to the way we have worked out the role of the Supreme Court to ask if our judges have been doing a good job of identifying what is beneficial to the American society. I'd say they have pretty good track record. And if they fail, as I said, Congress can rectify that.

I think you're grumbling about some democratic principle. I would say a woman has a right to an abortion. I think you agree, but you think it would be better if the whole society continues to suffer because of the inability of congressmen to amend the constitution. I honestly don't understand that attitude.

You'll have to give the cite to where the Virginia Code contains excerpts from the Magna Carta translated from its medieval Latin so I can see exactly what you're talking about.. — Hanover

You're denying that Virginia's statues contain the Magna Carta?

So it would be appropriate in regard to the way we have worked out the role of the Supreme Court to ask if our judges have been doing a good job of identifying what is beneficial to the American society. I'd say they have pretty good track record. And if they fail, as I said, Congress can rectify that. — frank

The democratic check on the Supreme Court is very limited and onerous, requiring Constitutional amendment. If that were your attitude, you wouldn't care who sits on the Court, considering we can just undo it with an amendment.

I think you're grumbling about some democratic principle. I would say a woman has a right to an abortion. I think you agree, but you think it would be better if the whole society continues to suffer because of the inability of congressmen to amend the constitution. I honestly don't understand that attitude. — frank

This is the crux of the entire debate: What is the appropriate role of the Court and how does it affect our democracy? If we are being ruled by 5 justices, we're not an effective democracy. The role of Congress is to consider matters of policy.

You're denying that Virginia's statues contain the Magna Carta? — frank

No. I asked for the cite to it because I couldn't find the specific statute you were alluding to. I trust your statement, but I'd like to see it for academic sake. It'd be interesting to see how their courts have dealt with such ancient references.

The only way we can possibly ascertain the meaning of a word used in 1866 is by looking to how it was used. And what we know is that liberty did not include the right to abort, to intermarry, to engage in sodomy, and to marry someone of your same gender. I think it's clear that the word "liberty" means something quite different today than when it was written. You seem to be saying that it means the same today as before, but how do you know that if all indications are that they meant something far different. — Hanover

That's like saying that because historical people referred to the mentally ill as being possessed by demons then the meaning of the phrase "possessed by demons" at that time meant "mentally ill". But of course that's wrong. It meant what it means now. They were just wrong to refer to the mentally ill as being possessed by demons. And historical people didn't refer to slavery as being immoral. Does it then follow that the meaning of the word "immoral" has changed, and that slavery isn't immoral (as they meant by the word)? Or is it that the meaning is the same, and they were just wrong to not refer to slavery as immoral?

But let's clarify, what is meant by "liberty," and how would I know if I have a right to cat ownership? My guess is that I don't, largely because it's not a hot-button issue for the left and it doesn't have to do with relationships or sexuality in some way. — Hanover

I already brought up the example of the Supreme Court ruling in Citizens United v. FEC that campaign donations are a form of free speech, despite the fact that the Constitution never explicitly states that it is. This kind of interpretation of the Constitution isn't exclusive to situations that liberals favour, so I don't know why you're trying to turn this into a partisan issue.

I mean, really, you derived the right to have sodomy by extrapolating from the other amendments? — Hanover

I'm deriving it from the facts that a) liberty is a right and b) sodomy is a liberty. Don't you do the same for the case of vaginal intercourse between a husband and wife? Or would it be wrong for the Supreme Court to rule against a law that enforced celibacy because the Constitution never states that sex is a right?