Originally Posted by Steeeeve

No it isn't and Breyer, for one, admits this. Breyer looks for how it evolves and what it should mean in terms of todays "standards". This is why he looks at current foreign law and current trends for coming up with a meaning of a constitutional provision. So it isn't a matter of "set meaning" because Breyer doesn't believe that exists and fully admits this.

Breyer simply takes a different approach from Scalia in how he interprets the constitution. As I understand it, he draws his thinking from the late scholar John Hart Ely, whose 1980 book on constitutional interpretation was brilliant and highly influential among legal scholars. Ely rejected Scalia's view that the constitution should be interpretated only on its text and history, only on the original intent of the framers. He argued that the constitution was structured in an open way, to allow for situations that the framers could not envision. Ely argued that the constitution was designed to promote the democratic process. He rejected, however, the arguments of some scholars that judges could infer rights from the constitution. Ely was in between what might be called the most liberal thinkers and the most conservative thinkers on the subject of constitutional interpretation.

Breyer, it seems to me, has embraced Ely's middle-ground position on constitutional interpretation. Breyer does argue that the consequences of laws must be taken into consideration in interpreting the meaning of the law. He does not argue that judges should make up laws. Breyer's is a different philosophy from that of Scalia of how the constitution should be interpreted.

We have run far from the topic of this thread, haven't we? As legislatures take up equal marriage rights and pass laws legalizing same-sex marriage, the issue moves away from the courts and into the legislative arena.

The uses of outrage | Democracy in America | Economist.com

...given the glaring secular trend in the polls on an issue like gay marriage, driven by both demographics and cultural momentum that seems to be approaching a tipping point, it may not be too many election cycles before support for the dreaded "gay agenda" is a wedge issue in the other direction.

Originally Posted by Ohioprof

Breyer simply takes a different approach from Scalia in how he interprets the constitution. As I understand it, he draws his thinking from the late scholar John Hart Ely, whose 1980 book on constitutional interpretation was brilliant and highly influential among legal scholars. Ely rejected Scalia's view that the constitution should be interpretated only on its text and history, only on the original intent of the framers. He argued that the constitution was structured in an open way, to allow for situations that the framers could not envision. Ely argued that the constitution was designed to promote the democratic process. He rejected, however, the arguments of some scholars that judges could infer rights from the constitution. Ely was in between what might be called the most liberal thinkers and the most conservative thinkers on the subject of constitutional interpretation.

Breyer, it seems to me, has embraced Ely's middle-ground position on constitutional interpretation. Breyer does argue that the consequences of laws must be taken into consideration in interpreting the meaning of the law. He does not argue that judges should make up laws. Breyer's is a different philosophy from that of Scalia of how the constitution should be interpreted.

We have run far from the topic of this thread, haven't we? As legislatures take up equal marriage rights and pass laws legalizing same-sex marriage, the issue moves away from the courts and into the legislative arena.

Well to be blunt, you are wrong about Breyer. In fact, his book Active Liberty rejects Ely, Scalia, and the other kinds of methods. Ely is like a shade off from Scalia in that he agrees with Scalia on the 14th and 9th and 4th and 8th amendment and rejects Roe but disagrees with looking at original meaning instead of original intent. This is where that distinction shows up. Meaning and intent are often the same thing but sometimes they are different which might be the case with the 14th amendment (although Ely doesn't think so). Breyer is vastly different from this approach in that he thinks consequence and purpose should be used. This is basically a manipulative way of saying "create the law I think should exist". Breyer would argue that if a law had the consequence of removing a freedom he think should exist than it is unconstitutional. He basis this on the overarching theme of the constitution to "protect liberty" instead of looking at the actual provisions. But no, it is not even close to Ely...not even a cousin. Scalia's approach is more like a cousin to Ely.

Originally Posted by Steeeeve

Well to be blunt, you are wrong about Breyer. In fact, his book Active Liberty rejects Ely, Scalia, and the other kinds of methods. Ely is like a shade off from Scalia in that he agrees with Scalia on the 14th and 9th and 4th and 8th amendment and rejects Roe but disagrees with looking at original meaning instead of original intent. This is where that distinction shows up. Meaning and intent are often the same thing but sometimes they are different which might be the case with the 14th amendment (although Ely doesn't think so). Breyer is vastly different from this approach in that he thinks consequence and purpose should be used. This is basically a manipulative way of saying "create the law I think should exist". Breyer would argue that if a law had the consequence of removing a freedom he think should exist than it is unconstitutional. He basis this on the overarching theme of the constitution to "protect liberty" instead of looking at the actual provisions. But no, it is not even close to Ely...not even a cousin. Scalia's approach is more like a cousin to Ely.

I don't see Ely that way. I think Ely's view is closer to Breyer's than to Scalia's. I recently re-read Ely's book, and I don't interpret his position as close to that of Scalia, though he draws from what he calls the interpretivist approach that Scalia follows. He also goes beyond that approach, though carefully. Ely does think purpose and consequence should be considered in constitutional decision-making. He argues that the constitution has certain purposes, notably to advance democracy. He does not argue that the Court should insist on upholding freedoms that he thinks should exist, but rather that the Court should uphold the freedoms that the constitution calls for, and to him, the democratic process is central to what the constitution calls for. I see Breyer as taking a similar position. I do not see Breyer as inventing freedoms either. A constitutional philosopher who goes beyond Breyer and Ely in arguing for constitutional support for a broad array of freedoms is Ronald Dworkin.

Central to this whole debate, which you and I have had going back months, is the question of what rights the constitution protects. Different constitutional scholars and jurists take different positions on this question, just as they approach constitutional interpretation in different ways. Scalia's approach is one way. Breyer's approach is another way. Both are ways of interpreting; neither is just making up law. Both are legitimate, but they are different. You seem to insist that there is only one way to interpret the constitution and anything else is justices making up laws. I think there are various ways to interpret the constitution, and Courts change interpretive approaches over time. That doesn't mean they are making up laws.

If we move beyond an argument about constitutional interpretation and look at the news, we see that New Hampshire is about to enact a law legalizing same-sex marriage in that state.

Originally Posted by Ohioprof

I don't see Ely that way. I think Ely's view is closer to Breyer's than to Scalia's. I recently re-read Ely's book, and I don't interpret his position as close to that of Scalia, though he draws from what he calls the interpretivist approach that Scalia follows.

Scalia is an originalist. There are different variations of this but basically they follow the same model. Ely is a shade off of this in that he looked at intent. Breyer sounded rejected Ely's view in his book. Don't get me wrong, he uses certain aspects of it but so does Scalia. Breyer has described his approach as taking originlism and adding on intent, consequence, and purpose. This is almost a direct quote from a debate he had with Scalia aired on CSPAN a few years ago.

He also goes beyond that approach, though carefully. Ely does think purpose and consequence should be considered in constitutional decision-making.

No he doesn't. Not at all. He is a procedural guy. I'm not sure how you missed this. He rejects substantive due process which is the basic premise for using consequence and purpose.

He argues that the constitution has certain purposes, notably to advance democracy.

No, he argues the purpose is to give procedures for advancing democracy.

He does not argue that the Court should insist on upholding freedoms that he thinks should exist, but rather that the Court should uphold the freedoms that the constitution calls for, and to him, the democratic process is central to what the constitution calls for. I see Breyer as taking a similar position. I do not see Breyer as inventing freedoms either. A constitutional philosopher who goes beyond Breyer and Ely in arguing for constitutional support for a broad array of freedoms is Ronald Dworkin.

Breyer is all about substantive due process and the living constitution. This is a huge departure from Ely. In fact, it makes them not even similar because Breyer does see substantive rights in the 9th and 14th amendments meaning the "broad array of freedoms". This is clear.

Originally Posted by Steeeeve

Scalia is an originalist. There are different variations of this but basically they follow the same model. Ely is a shade off of this in that he looked at intent. Breyer sounded rejected Ely's view in his book. Don't get me wrong, he uses certain aspects of it but so does Scalia. Breyer has described his approach as taking originlism and adding on intent, consequence, and purpose. This is almost a direct quote from a debate he had with Scalia aired on CSPAN a few years ago.

No he doesn't. Not at all. He is a procedural guy. I'm not sure how you missed this. He rejects substantive due process which is the basic premise for using consequence and purpose.

No, he argues the purpose is to give procedures for advancing democracy.

Breyer is all about substantive due process and the living constitution. This is a huge departure from Ely. In fact, it makes them not even similar because Breyer does see substantive rights in the 9th and 14th amendments meaning the "broad array of freedoms". This is clear.

We are running way off from the topic of this thread, which is not the Supreme Court and the constitution. The topic of the thread is same-sex marriage. So I will refrain from getting into an argument with you about Scalia, Ely, and Breyer, as these will draw us further into a discussion of an off-topic subject in which most posters probably have little interest. I will say yes, Ely does say the purpose of the constitution is to give procedures for advancing democracy. And yes, I do realize that his focus is on procedure, and Ely disliked substantive due process. He was, however, not an originalist like Scalia is. Breyer is more supportive of substantive due process than Ely was. However, Breyer's concept of "active liberty" is based on a view that the constitution has been crafted to advance popular participation in the democratic process.

But there I go, arguing about something I said we should not be discussing because it is off-topic for this thread.

Originally Posted by Ohioprof

We are running way off from the topic of this thread, which is not the Supreme Court and the constitution. The topic of the thread is same-sex marriage. So I will refrain from getting into an argument with you about Scalia, Ely, and Breyer, as these will draw us further into a discussion of an off-topic subject in which most posters probably have little interest. I will say yes, Ely does say the purpose of the constitution is to give procedures for advancing democracy. And yes, I do realize that his focus is on procedure, and Ely disliked substantive due process. He was, however, not an originalist like Scalia is. Breyer is more supportive of substantive due process than Ely was. However, Breyer's concept of "active liberty" is based on a view that the constitution has been crafted to advance popular participation in the democratic process.

But there I go, arguing about something I said we should not be discussing because it is off-topic for this thread.

Don't worry about it. I started this thread almost 3 years ago, it died a death and went off topic years ago.

Okay, then, perhaps it's okay that this thread turns into a discussion/debate over constitutional interpretation.

I see similar thinking in John Hart Ely and Stephen Breyer. Ely did not favor a strictly interpretivist approach to the constitution, to borrow his language. He viewed the constitution as laying out a process, a procedure for ensuring democratic participation. Stephen Breyer in his book Active Liberty makes a similar argument, that the constitution lays out a process for ensuring democratic participation. Both thinkers embrace the view that a purpose of the constitution is to protect democratic participation.

Ely did reject substantive due process, calling it a contradiction. In that he agreed with Scalia. Breyer differs from Ely on the question of substantive due process.

Originally Posted by foundit66

Oh. This one is a doozy...

....
=CPR's Claim on Surveying "EVERY HOUSEHOLD IN NH"

But I suspect the CPR is lying, for the above reasons...
(And if anybody wants to quibble about "lying", I guess a possible alternative exists in "willful ignorance", but how can a group be ignorant that they did not do the action they claimed to have done...
So, I guess almost terminal incompetence, or obvious lying is what we're left with...)

Above is a link to my explanation as to why I think the CPR is lying in their claim that "CPR-Action surveyed EVERY HOUSEHOLD IN NH"...

Now, there is some more info on the story.
It seems that the CPR isn't the only one to repeat that claim. The FOF also repeated the claim and the "survey" results.
Except, amazingly enough the FOF has recognized the truth of the situation. The FOF has formally come out and stated that the CPR's claim is not accurate.
Of course, the "phrasing" of the FOF's admission to the falsehood has much to be desired ( ), but at least it's a start...

Exclusive: FOF admits NH poll is bunk! - Good As You:: Gay and Lesbian Activism With a Sense of Humor

Of course, despite the FOF admitting CPR's claim is false, the CPR continues with their claim.

Originally Posted by Ohioprof

Ely did reject substantive due process, calling it a contradiction. In that he agreed with Scalia. Breyer differs from Ely on the question of substantive due process.

This is a huge distinction and is the basis for the "living constitution" idea that Breyer supports. Scalia, who is not a strict constitutionalist, even supports the idea of "procedure for ensuring democratic participation". This phrase is of little meaning anymore because all 3 feel it means something different. In any event, Breyer's approach is mostly just a cover for making legislation. Ely has an approach that looks at intent in terms of the democractic procedure. This is why I say it is like Scalia more than Breyer...his has proven out in the cases Ely agrees with Scalia on (Roe, Carr, griswold, right to privacy). Those are some major cases! I think Campaign Finance Reform is the one major thing Breyer and Ely agree on.

In any event, the point is the Ely and Scalia both are looking at a definite meaning created by the people who adopted the provision. Breyer rejects this approach when he applies other tests related to substantive due process and the living constitution. I feel this is a major point in that I agree you can disagree on what the original meaning was but it is flat out wrong to say the meaning changes dependent on what the judge feels it should mean in terms of today's society. One approach seeks answers while the other creates them.

Originally Posted by foundit66

Above is a link to my explanation as to why I think the CPR is lying in their claim that "CPR-Action surveyed EVERY HOUSEHOLD IN NH"...

Now, there is some more info on the story.
It seems that the CPR isn't the only one to repeat that claim. The FOF also repeated the claim and the "survey" results.
Except, amazingly enough the FOF has recognized the truth of the situation. The FOF has formally come out and stated that the CPR's claim is not accurate.
Of course, the "phrasing" of the FOF's admission to the falsehood has much to be desired ( ), but at least it's a start...

Exclusive: FOF admits NH poll is bunk! - Good As You:: Gay and Lesbian Activism With a Sense of Humor

Of course, despite the FOF admitting CPR's claim is false, the CPR continues with their claim.

And the story just keeps unwinding...

Cornerstone Policy Research also released a poll of 50,000 households showing that 64 percent agreed that "marriage between one man and one woman should be the only legal definition of marriage" in the state.

Baptist Press - N.H. 'gay marriage' law could be reversed - News with a Christian Perspective

Compare that to what Cornerstone Policy Research put on their OWN WEB-SITE!

Over the last two days, CPR-Action surveyed EVERY HOUSEHOLD IN NH - that's right, 432,398 households

NEW YORK – In a letter made available to Truth Wins Out, the authors of a book on the health of gay men have accused Focus on the Family of distorting their research. The researchers publicly repudiated an article written by “ex-gay” activist Jeff Johnston in Focus on the Family’s web magazine, Citizen Link, which falsely linked homosexuality to childhood sexual abuse. This letter marks the tenth researcher in two years who has claimed that Focus on the Family misrepresented their work.

“Focus on the Family has zero credibility when it comes to interpreting or analyzing scientific research,” said Wayne Besen, Executive Director of Truth Wins Out. “This group has serially distorted legitimate studies on human sexuality to score political points and demean gay and lesbian people. We thank these researchers for having the courage to come forward and set the record straight.”

Focus on the Family Distorts ScienceIn the article, “Childhood Sexual Abuse and Male Homosexuality”, Johnston wrote, “Many pro-gay researchers, activists and theorists deny that there could be a connection between child sexual abuse and adult homosexuality.” As proof of a supposed connection, he cited a 2008 book, “Unequal Opportunity: Health Disparities Affecting Gay and Bisexual Men in the United States”, edited by Professors Richard J. Wolitski, Ron Stall (pictured), and Ronald O. Valdiserri.

When approached by Truth Wins Out, the researchers were surprised by the manipulation of their data and agreed to respond.

“We want to respond to a recent Focus on the Family characterization of scientific findings reported in our book, ‘Unequal Opportunity: Health Disparities Affecting Gay and Bisexual Men in the United States’ that misrepresented findings in the book to suggest that childhood sexual abuse causes male homosexuality,” Stall and Valdiseri wrote in their letter. “The Focus on the Family description of the findings reported in Unequal Opportunity is inaccurate and, in our opinion, a distortion of the scientific literature.”

Focus on the Family has made a habit out of twisting science to back its anti-gay agenda. Melissa Fryrear, a Love Won Out speaker, has also repeated the phony link between abuse and homosexuality.

Truth Wins Out - Researchers Say Focus on the Family Distorted Book On Gay Men?s Health

Tenth time in two years...
It would be nice if honesty were more of a family value for these anti-gay activists...

Is this the debate tactic used by "gay marriage" advocates? To label any opinion that differs from theirs as "twisted"?

It's bad enough that gay-marriage advocates refer to women who oppose gay marriage with the b-word and c-word.

It's bad enough that they stoke FALSE stories about Jenny Sanford blaming gay marriage for her husband's infidelity. (Her "quote" appeared in a news-satire site. She never blamed GM for her husband's adultery.)

It's bad enough that gay-marriage advocates engage in terrorism by sending white-powdered envelopes to California churches because they lost the fair-and-square Prop 8 vote.

Now, a solid majority of Americans are "twisted" because they hold the "wrong" view on gay marriage.

Pathetic.
.