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Scalia's Interracial Question Challenge

Wnope
Posts: 6,924
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3/30/2013 4:03:48 PM
Posted: 3 years ago
One of Scalia's comments during the Prop 8/DOMA proceedings actually constitutes a good basis for discussion.

Do you believe a banning interracial marriage would constitute a legal infringement on a person's rights/privileges before the passage of the 14th amendments (which had the equality clause)?

Remember, the 14th amendment, signed after the civil war, was the legal basis under which SCOTUS decided the laws are wrong. Before that, they would have held otherwise for states.
Wnope
Posts: 6,924
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3/30/2013 4:04:42 PM
Posted: 3 years ago
At 3/30/2013 4:03:48 PM, Wnope wrote:
One of Scalia's comments during the Prop 8/DOMA proceedings actually constitutes a good basis for discussion.

Do you believe a banning interracial marriage would constitute a legal infringement on a person's rights/privileges before the passage of the 14th amendments (which had the equality clause)?

Remember, the 14th amendment, signed after the civil war, was the legal basis under which SCOTUS decided the laws are wrong. Before that, they would have held otherwise for states.

To put it more simply: When did banning interracial marriage become unconstitutional?
DoubtingDave
Posts: 380
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3/30/2013 4:16:23 PM
Posted: 3 years ago
At 3/30/2013 4:03:48 PM, Wnope wrote:
One of Scalia's comments during the Prop 8/DOMA proceedings actually constitutes a good basis for discussion.

Do you believe a banning interracial marriage would constitute a legal infringement on a person's rights/privileges before the passage of the 14th amendments (which had the equality clause)?

Remember, the 14th amendment, signed after the civil war, was the legal basis under which SCOTUS decided the laws are wrong. Before that, they would have held otherwise for states.

This is a very good question. It certainly would have infringed on a person's right/privilege, the question of whether it would be legal, however, is another question. I believe that it would NOT have been legal.
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16kadams
Posts: 10,497
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3/30/2013 4:18:04 PM
Posted: 3 years ago
At 3/30/2013 4:04:42 PM, Wnope wrote:
At 3/30/2013 4:03:48 PM, Wnope wrote:
One of Scalia's comments during the Prop 8/DOMA proceedings actually constitutes a good basis for discussion.

Do you believe a banning interracial marriage would constitute a legal infringement on a person's rights/privileges before the passage of the 14th amendments (which had the equality clause)?

Remember, the 14th amendment, signed after the civil war, was the legal basis under which SCOTUS decided the laws are wrong. Before that, they would have held otherwise for states.

To put it more simply: When did banning interracial marriage become unconstitutional?

Interesting question. This is a grey area, but I would say Scalia's answer should be "always" (I don't know what his answer was, however).

Now, a true origionalist (and I am assuming Scalia is one -- I tend to lean in that direction also) should also consider English common law. Whether or not you agree with the procreation/child rearing argument, English common law often indicated the intrinsic link between procreation and marriage. The Loving decision that marriage was a right was based on those principles. It argued marriage was a right only because the state wants to encourage the natural state of marriage (or, if you disagree with my argument, what the state used to think was the "true" state of marriage). Due to the fact English common law, the basis of most of our laws, encourages procreation when people married implies marriage is heterosexual.

Now, assuming this is true ere is no valid reason to oppose interracial marriages because a heterosexual interracial marriage is the same as a heterosexual homogeneous marriage. So, based on the laws which we still abide to today, banning interracial marriage is unconstitutional. And many of the founding fathers (like Jefferson) had children with African American slaves, indicating some of the founding fathers would support interracial marriage legation. Further, many of the northern congressmen supported African American rights. So, interracial marriage still may have been possible to Scalia's viewpoint.

Regardless of what you think of the procreation argument (even if its wrong, that's irrelevant) Scalia's principles would lead him to support interracial marriage based on the Loving decision and English common law.

I just found this, and will read it after I post this. It argues traditionalists should deem interracial marriage unconstitutional. http://papers.ssrn.com...
https://www.youtube.com...
https://rekonomics.wordpress.com...
"A trend is a trend, but the question is, will it bend? Will it alter its course through some unforeseen force and come to a premature end?" -- Alec Cairncross
16kadams
Posts: 10,497
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3/30/2013 4:19:30 PM
Posted: 3 years ago
At 3/30/2013 4:18:04 PM, 16kadams wrote:
At 3/30/2013 4:04:42 PM, Wnope wrote:
At 3/30/2013 4:03:48 PM, Wnope wrote:
One of Scalia's comments during the Prop 8/DOMA proceedings actually constitutes a good basis for discussion.

Do you believe a banning interracial marriage would constitute a legal infringement on a person's rights/privileges before the passage of the 14th amendments (which had the equality clause)?

Remember, the 14th amendment, signed after the civil war, was the legal basis under which SCOTUS decided the laws are wrong. Before that, they would have held otherwise for states.

To put it more simply: When did banning interracial marriage become unconstitutional?

Interesting question. This is a grey area, but I would say Scalia's answer should be "always" (I don't know what his answer was, however).

Now, a true origionalist (and I am assuming Scalia is one -- I tend to lean in that direction also) should also consider English common law. Whether or not you agree with the procreation/child rearing argument, English common law often indicated the intrinsic link between procreation and marriage. The Loving decision that marriage was a right was based on those principles. It argued marriage was a right only because the state wants to encourage the natural state of marriage (or, if you disagree with my argument, what the state used to think was the "true" state of marriage). Due to the fact English common law, the basis of most of our laws, encourages procreation when people married implies marriage is heterosexual.

Now, assuming this is true ere is no valid reason to oppose interracial marriages because a heterosexual interracial marriage is the same as a heterosexual homogeneous marriage. So, based on the laws which we still abide to today, banning interracial marriage is unconstitutional. And many of the founding fathers (like Jefferson) had children with African American slaves, indicating some of the founding fathers would support interracial marriage legation. Further, many of the northern congressmen supported African American rights. So, interracial marriage still may have been possible to Scalia's viewpoint.

Regardless of what you think of the procreation argument (even if its wrong, that's irrelevant) Scalia's principles would lead him to support interracial marriage based on the Loving decision and English common law.

I just found this, and will read it after I post this. It argues traditionalists should deem interracial marriage unconstitutional. http://papers.ssrn.com...

Found the paper for free here: http://scholarlycommons.law.northwestern.edu...
https://www.youtube.com...
https://rekonomics.wordpress.com...
"A trend is a trend, but the question is, will it bend? Will it alter its course through some unforeseen force and come to a premature end?" -- Alec Cairncross
YYW
Posts: 36,303
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3/30/2013 7:57:49 PM
Posted: 3 years ago
At 3/30/2013 4:03:48 PM, Wnope wrote:
One of Scalia's comments during the Prop 8/DOMA proceedings actually constitutes a good basis for discussion.

Do you believe a banning interracial marriage would constitute a legal infringement on a person's rights/privileges before the passage of the 14th amendments (which had the equality clause)?

Remember, the 14th amendment, signed after the civil war, was the legal basis under which SCOTUS decided the laws are wrong. Before that, they would have held otherwise for states.

Scalia would say that when the 14th amendment was passed, forbidding interracial marriage became unconstitutional. That said, Scalia's emphasis on the "when" question was an irritating and intellectually plebeian angle to harp on -imo.
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