[derosa8]

So the stir this week is likely to be on how SCOTUS will interpret to 14th amendment to rule on the constitutionality of Prop 8 and DOMA. However, I think those who have examined the historical data already realize the court has little credibility when it comes to upholding the Amendment’s original intent. Nevertheless, I think those of us who take seriously the original intent still have an interesting case on our hands. Perhaps I am wrong and the answer is obvious, but I’d like to present an argument from original intent that could lead to the court striking down Prop 8. Also, I would appreciate if some light could be shed on DOMA as that seems like a more complicated thing to determine whether it is constitutional or not.

1) Prop 8 is unconstitutional because of the privileges and immunitities clause which protects basic rights of life, liberty, and property.

2) These protected rights are enumerated in the Civil Rights Act of 1866, which says all men “shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.”

3) Since marriage can be viewed as a contract between two individuals, Prop. 8 should be viewed as violating the rights of certain people to enter into such a contract of their choice.

4) Therefore, Prop. 8 is unconstitutional.

**This does have an anachronistic ring to it, but I’m curious how others might respond to it. I am not asking anyone to make a moral judgment on the merits of Same Sex Marriage, but rather just comment on the constitutionality under the original intent of the 14th amendment.

*The last question I will pose: is DOMA unconstitutional under an originalist reading? It seems that perhaps it is necessary and proper for the Feds to have some consideration of what counts as marriage for purposes of dealing with employee benefits and certain tax filings etc. But, outside of the so-called “elastic clause” I am not sure where they could justify DOMA.

As always, comments are greatly appreciated!

[evassar92]

Hello there,

Interesting questions and points, and I’ll address them as listed in your post:

1.) Prop 8 is constitutional because the States’ retain all power not prohibited to them by the 10th amendment. As for it’s being unconstitutional because the privileges and immunities clause protects life, liberty, and property is a bit off. From my understanding of the profoessors’ teachings, life meant not being killed, liberty meant not being enslaved or imprisoned, and property was, well, all forms of property. Considering marriage doesn’t fall into one of those three definitions, I think it is safe to say Prop 8 is very much constitutional and perfectly fine for a state to pass.

2.) While, yes, the Civil Rights Bill of 1866 did allow for people (former slaves) to enter into contracts, it did not limit the States from legislating on what were valid contracts. That isn’t explained very well, but let me give an example. Prostitution. In certain States prostitution is illegal, but one can argue that a woman or man can legally enter into a contract with another to be a prostitute. So, if a State can pass legislation on prostitution as being an illegal contract, then they are also able to pass one on marriage. However, I don’t personally think of marriage as a contract in the sense of a contract between peoples for exchanges of land, between employers and employees, etc.

3.) See number 2.

4.) Therefore I think Prop 8 is constitutional.

As for DOMA being constitutional, I think under the Constitution as ratified, all powers not given to the general government were retained by the States, so Congress has no authority to legislate in the area of marriage. I dont know all the details about DOMA, but I find it to be unconstitutional.

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