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I made the comment about "separate but equal" as directed at your comment about the Supreme Court decisions of the past somehow having that extra-special insight to the minds of the Founders. Clearly, the intent of the 14th Amendment was never to make the blacks "equal," in the honest-to-God-equal sense. Heck, look at school segregation in even the North before the 14th was passed and then after it was passed. It didn't change. No one expected it to change.

But besides this, why do we need any test at all for the "discrimination" against women or blacks in either of our examples? Assuming the schools are "equal," than the letter of the 14th Amendment has been met and there is no protection under the 14th. I got the impression from what you said about "separate but equal" that you would feel that segregated schools are unconstitutional. But assuming these schools received equal funding, why would they be unconstitutional? They are technically equal--to say they are "unequal" reads an intangible notion into the term "equal protection" that isn't present in the text of the document.

As far as "textualism" goes, it's not followed, and for good reason. Take what I said before as what I read the biggest hurdle for textualists, and that is the 9th Amendment. Either the 9th Amendment is read to mean essentially the same thing as the 10th--making it superfluous--or it is clearly stating that the Constitution is not to be read strictly within the "four corners."

Now, I tend to think that it makes little sense for the Founders to have written the 9th Amendment and then write the 10th Amendment and have them both mean basically the same thing. So then I'm left with the other possible reading of the 9th--that it is an invitation to extend the protections of the Constitution outside the "four corners" of the document. This is something with which I have no problem.

Besides this, the Constitution is written in vague, sweeping declarations. I think this was done intentionally. What is "speech?" What is "due process?" What is "cruel and unusual punishment?" To say that we should go strictly by the text in many cases is entirely unhelpful, especially when confronted with issues like "due process" or "equal protection."

Hey, there's a reason why people like Bork, Thomas, Scalia, and Rehnquist aren't pure textualists or originalists. It just can't be done and still always reach rational results. I can find you decisions by all of these Judges that completely abandons the text of the Constitution. Heck, Rehnquist even wrote a famous Right to Counsel opinion in which he states that the Court is going way beyond the text and the original meaning of the Constitution--but our society had evolved to the point where we considered certain rights to so fundamental that they must be constitutionally protected.

In the end, it's an interesting thought, but it just can't be done and still reach consistent, rational results.

Either the 9th Amendment is read to mean essentially the same thing as the 10th--making it superfluous--or it is clearly stating that the Constitution is not to be read strictly within the "four corners."

The Ninth Amendment was a constraint on the federal government , not a license for the federal courts, the third branch of the federal government, to make laws.

Or as Judge Bork once said, the Ninth Amendment is "...no more interpretable than a waterblot on the Constitution."

You are creating a strawman out of "original intent" and textualists here, and making a false choice between only textual reading and wholesale activism.

The right and correct answer is Judicial restraint and keeping constitutional interpretation close to the text and intent. The fact that law cases wont be directly answered by the generalities of the text of the Law is no surprise, this is what Judges are for. But that is "filling in the gaps" not "weaving new clothing". What *is* new is the bogus modernist idea that a text can be 'living' (aka 'rewritten to suit a new whim').

What must remain interpretation is this: what the Constitution *says* not what we would wish it to mean.

And quit pretending Judicial activism is simply about expanding rights when in fact it's more the opposite (in this case and others).