7/20    Hi guys.  Adding to emarkp's comments ... according to Wikipedia,
        Rehnquist is a strict constructionist, and Scalia and Thomas are
        originalists (textualists).  Let's say California enacted a law saying
        "Only marriage between a man and a woman of the same race is valid or
        recognized in the state of California."  Would that be constitutional
        according to these three judges?  Is there an amendment which makes
        this decision easy?
        \_ Uhm, the text of all the amendments is available on the net.  They
           aren't a national secret or anything.  Is this some bizarre troll
           attempt?
           \_ No, I read all the amendments prior to posting -op
        \_ Rehnquist is more of a "pragmatic conservative" as opposed to a
           strict conservative; he's one of those that's less concerned
           with what the constitution precisely says and more concerned with
           making the supreme court and government work efficiently and smoothly.
           making the supreme court and government work efficiently and
           smoothly.
        \_ I hadn't seen the term "originalists" before.  But I'd say that when
           pretty much all marriage laws were enacted, that law wouldn't be
           necessary.  Checking my OED, the word "marriage" means "the union
           between husband and wife". -emarkp
           \_ I hadn't seen it either.  But when a http://freerepublic.com poll
              from last week came out with 70-80% of voters supporting an
              Originalist SCOTUS nominee, that was interesting.
              Scalia is supposed to be the representative originalist
              (textualist). -op
              \_ Then maybe I'm wrong in saying I align with "strict
                 constructionists" because I see Scalia as a model jurist.
                 I'll take a look at the wikipedia article.  -emarkp
                 [Postscript:  I guess I'm an "originalist" according to the
                 wikipedia article.]
        \_ Assuming you are not a troll the 14th amd makes it pretty clear
           that this is unconstitutional - "No State shall make or enforce
           any law which shall abridge the privileges or immunities of
           citizens of the United States."
        \_ Hi guys, op here ... Considering what you've written already,
           would the state law "Only marriage between a man and a woman is
           valid or recognized in the state of California" be constitutional
           or not (for a strict constructionist and originalist)?  We're
           _assuming_ the law does not violate the state Constitution, and
           we're now employing the Supreme Court check.
           \_ I think for an originalist it would be seen as redundant because
              that's what marriage means. -emarkp
              \_ But the word "marriage" (of people in matrimony) isn't in
                 the Constitution (including amendments), is it?
                 Anyway, the question was whether a strict constructionist
                 or originalist would see such a state law as unconstitional
                 or not.
                 \_ Okay, as a newly identified originalist I'd see it as
                    constitutional. -emarkp
           \_ This is a far more interesting question b/c it goes to the
              heart of equal protection. A possible interpretation under
              the original purpose of the 14th amd (prevent discrimination
              based on race) would be that the statute does not violate
              the constitution b/c it does not deprive any person of equal
              protection under the law - ie any man can marry any woman
              protection under the law - ie any many can marry any woman
              and visa versa.
              An alternate view is that equal protection was always intended
              to protect people even if they made unpopular choices (say
              they chose to be a Jew/Quaker instead of a Protestant), thus
              discrimination based on the gender of the person you wish to
              marry would be unconstitutional.
              I'm pretty sure that an "originalist" would go w/ the 1st view
              but the 2d could work as well.
           \_ "No State shall make or enforce any law which shall abridge
              the privileges or immunities of citizens of the United States"
              Marriage is, at its heart, a contract between two adults.
              Such a law, ultimately, says that only a man and a woman make
              this contract.  See Chicago, B. & Q. R.R. v. McGuire, 219 U.S.
              549, 567 , 570 (1911)
           \_ "The liberty mentioned in that [Fourteenth] Amendment means
              not only the right of the citizen to be free from the mere
              physical restraint of his person, as by incarceration, but
              the term is deemed to embrace the right of the citizen to
              be free in the enjoyment of all his faculties, to be free
              to use them in all lawful ways; to live and work where he
              will; to earn his livelihood by any lawful calling; to pursue
              any livelihood or avocation, and for that purpose to enter
              into all contracts which may be proper, necessary and essential
              to his carrying out to a successful conclusion the purposes
              above mentioned." 165 U.S. 578, 589  (1897)
           \_ Okay, person posting judgements from 1911 and 1897, what do
              you think strict constructionists and originalists would
              write as an opinion? -op
           \_ While this court has not attempted to define with exactness
              the liberty thus guaranteed, the term has received much
              consideration and some of the included things have been
              definitely stated. Without doubt, it denotes not merely
              freedom from bodily restraint but also the right of the
              individual to contract, to engage in any of the common
              occupations of life, to acquire useful knowledge, to marry,
              establish a home and bring up children, to worship God
              according to the dictates of his own conscience, and generally
              to enjoy those privileges long recognized at common law as
              essential to the orderly pursuit of happiness by free men.
              262 U.S. 390 (1923)