Speaking of the 4th, here's something to chew on, especially in the context of discussions of the Supreme Court and constitutional interpretation. How should we interpret the following line from the Declaration?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
I would argue that the appropriate interpretation is to consider the word "man" to mean any human being, and that the reference to a "Creator" can simply mean "born" or "because one exists", i.e., we all have rights, not because of who we are, or because government grants us rights, but because we are. However, this was clearly not the original intent of he author--as the phrase rather obviously did not see females as included, and certainly not slaves.
The reason I bring this up is twofold. 1) To celebrate this foundational idea on this anniversary of its promulgation, and 2) To bring up something that I have been thinking about for days, which is what is that proper way to interpret intent in regards to the Constitution.
I realized sometime back that while I favor a constructionist view of constitutional interpretation, that I do see the need to allow for some level of linguistic and attitudinal evolution in such interpretations. For example, while it was clearly not the intent of the authors of the 14th Amendment to include gender in the Equal Protection Clause, I think that it should be understood to do exactly that, given the evolution of our attitudes towards citizenship. I do not see this as a judicial activism approach, but one which takes the plain meaning of the words of the text, even if that plain meaning has changed over time.
Thoughts?
all men are created equal (in their common humanity)
Posted by: acline at July 4, 2024 08:52 PMI guess it "depends." For example, I think it's perfectly reasonable to include, say, Internet sales within the definition of interstate commerce even though the Framers obviously never thought of that. But to include women in the 14th Amendment--and, presumably, homosexuals and others down the road--is a slippery slope.
If attitudes evolve, presumably this would be reflected in legislation passed by the representatives of the people. Nothing in the 14th Amendment precludes women being treated exactly like men, but it clearly wasn't intended to mandate that (witness the failure to pass the Equal Rights Amendment as recently as 1982). While we have largely created male-female equality legislatively as technology and attitudes have changed, we still think of men and women differently, most obviously in terms of combat duty but also in more trivial things like car insurance rates. Courts shouldn't mandate equality here. Ditto the status of homosexuals qua homosexuals in the law. I'm okay with gay marriage but think it should happen by legislation rather than judicial fiat.
Posted by: James Joyner at July 7, 2024 08:20 AM