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To: Viva Le Dissention
Okay. My point is (a) you can be a textualist and (b) you SHOULD be one, it will save us from very BAD decisions.

I think a rational basis test for gender-based discrimination cases is more than sufficient.
Furthermore, there is indeed rational reason for single sex schools, for differential treatment in several areas where men and women are indeed different. As for the extreme case stated:

"
So let's say your state passes a law stating that no women are allowed to attend any state accredited schools. State constitutions aside for the moment, do you honestly contend that the young ladies of this state would have no federal constitutional rememdy, since the 14th's original intent was not to protect women? "

The text grants equal protection for all, even though the intent was directed at freed negro slaves. Whether this is permissible or not would depend on the rational basis. You've given a fairly nutty case.
consider - more realistically - if the state decided to fund many single sex schools. If that had a basis due to this being suitable education for men and women, it should be acceptable.
And yet I would never support 'separate but equal' for the races. see?

Yet the more ready remedy is at the ballot box.
774 posted on 08/21/2003 4:52:24 PM PDT by WOSG
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To: WOSG
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.
784 posted on 08/21/2003 5:10:53 PM PDT by Viva Le Dissention
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