[Viva Le Dissention]

But what you've got to understand is that so-called "textualists" or "originalists" simply don't exist.

I think most everyone would agree that the equal protection clause of the 14th Amendment prevents gender-based discrimination by the government. I think even Thomas or Bork would agree on this. But the authors of the 14th Amendment had no such intentions in the drafting of the Amendment--it was specifically meant to address only racial discrimination. So much so, in fact, that there were women jailed in several states for attempting to vote after the 14th Amendment was passed, and their sentences were upheld by the Supreme Court.

There's all sorts of examples on this subject, but you simply can't, with a straight face, claim to be a pure "originalist." The fact is the don't exist--and once you realize this, anything is possible.

[jwalsh07]

But what you've got to understand is that so-called "textualists" or "originalists" simply don't exist.

Well, happily, you seem to have conceded the point that the original intent of the 14th Amendment was not intended to incorporate the "establishment clause" of the First Amendment. You get big points for that.

But, the misunderstanding from my perch is yours and a lot of others who conflate indidual inalienable rights granted by the Creator, or natural rights for the less relgiously inclined.

In other words, the "establishment clause" was a constraint on the federal government and the federal government alone while the inalienable rights to speech and the written word are without a doubt are incorporated by the 14th Amendment.

[lugsoul]

Of course, the body of legal thought is also that the "privileges and immunities" clause of the 14th Amendment means... well, nothing. Absloutely nothing. I'm sure they debated over this language and included it for no purpose whatsoever. But that's what the "originalists" would have you think.

[WOSG]

"I think most everyone would agree that the equal protection clause of the 14th Amendment prevents gender-based discrimination by the government. "

I think you undercut your own argument... why do we imagine the 14th amendment stops gender-based discrimination? It doesnt!! that is just an invention of recent USSC decision and legal theories. And then even "Conservative" Judges get locked into bogus precedents.

The fact that VMI and other institutions have had to change on the basis of the 14th is an abomination.

"But what you've got to understand is that so-called "textualists" or "originalists" simply don't exist. "

Not when we keep sending Commies like Justice Ginsburg on to the Supreme Court. Yet it is more than possible to have a valid legal philosophy that says "just go by the text as written and intended by the authors". IN fact, that is the *only* valid legal philosophy that maintains adherence to the most important judicial principle - Rule of Law.

" So much so, in fact, that there were women jailed in several states for attempting to vote after the 14th Amendment was passed, and their sentences were upheld by the Supreme Court. " And rightly so as the 19th amendment gave them the vote, not the 14th. To give them the vote on the basis of the 14th, when there are explicit wording that make it clear it is not intended to so extend the franchise, would make a mockery of the law.

Yet we use the 14th to do so much more. The point is, the Feminist moement wrongly got via Judicial tyranny/usurpation what they failed to do via proper channels, ie, the ERA. They have twisted the words of the 14th - wrongly.

Just because "everybody does it" doesnt make it right!