Quick Thoughts

On constitutional interpretation:

Just wanted to take a quick second and clarify my position on constitutional interpretation. While I believe it's foolish to ignore original context in some cases, I also believe that trying to figure out what a handful of elite individuals meant when they wrote a document during a hot Pennsylvanian summer more than 200 years ago is not the best way to answer questions about social issues that affect us today. Original intent is difficult to divine. Contexts change. Ambiguities arise. The legislative process is too slow to adapt to new contexts, and too unlikely to respond to people who don't speak loud enough. We need an institution like the Supreme Court that is capable of adapting quickly.

Yes, the constitution is a check on the Supreme Court. But not in the sense that any hypothetical "original" interpretation of the constitution should have more weight than any other guide. Modern interpretation of the constitution should be the greatest guide.

The People should amend the Constitution when their modern context of what is right moves away from the text of the Constitution. But when the text of the Constitution is flexible enough that it may be interpreted in a manner adapted to modern contexts, the People shouldn't be required to amend the Constitution to tell the Court that the Court's hypothetical original interpretation is wrong. If the Court's modern interpretation is disagreeable with the People, the People may then correct the Court by amending the Constitution to clarify to the Supreme Court that the Court's modern interpretation is not the will of the People.

I don't have any problems with the idea of 9 judges having such power. In my opinion the good of having an arm of the government that can do what our modern judiciary does far outweighs the risk of the Supreme Court departing significantly from the good of the people. Besides, there are still other checks--for example, the President and Congress can work in tandem to add more judges if the 9 get out of control. E.g. FDR.

Alvin (and others) -

On your "separate but equal" arguments, this is exactly why my gut instinct is that we should move the opposite way and remove all reference to marriage in any law or regulation, not just the assignment of benefits. What is marriage in the absence of religion? Is it anything more than a contract? Let people contract with whomever the please, and leave it to religious institutions to define and preserve the institution of marriage.

(I'm still a little uneasy on this idea, though, when it comes to adoption).

If you have to learn about constitutional law from one source, Rex Lee is a good one.

The right to privacy has always been, in my mind, the most suspect of "rights." But at the same time, I don't believe you should need a constitution to define a right specifically, if the right is a natural right. And I don't see anything wrong with the Court recognizing new natural rights--i.e. rights that are inalienable, but that we just haven't "seen" before. Substantive due process is just a legal way of saying that something's a natural (legally speaking, "fundamental") right. If we didn't have substantive due process, the Court would just find another legal concept to cling to for these natural rights. Even Scalia and Thomas have come to rely on the substantive due process concept from time to time.

Interesting thoughts on the First Presidency. I'll have to think about that some more.