letter of the law

were i arguing for same-sex marriage as a constitutional right before the supreme court (which i admit seems unlikely), and scalia pointed out to me that the framers, or the framers of the 14th amendment, could not possibly have intended same-sex marriage as a right, i would proceed as follows. so far as we can tell, they certainly did. right, the question never arose. but one plausible way to measure the intentions is by the plain sense of the words: their plain sense now, and their plain sense then, which we can work on if you like. if they said anything like what they intended to say, they said that you can't extend important basic rights to some people and not to others. they could not have seen all the possible future applications of that principle. nevertheless they endorsed it, and it entails that same sex couples have the right to marry. the last thing you need to do is head off on a 'living constitution' thing or whatever. just don't concede, either way.