Not trying to start a debate here, just curious. As I understand it, Constitutional “Originalists” like Antonin Scalia believe that the Constitutions and Bill of Rights are not living, evolving texts, but should be strictly interpreted and read exactly as the founding fathers would have understood them in the Eighteenth Century. What is their position towards slavery and segregation? Obviously Jefferson and his brethren had some blind spots when it came to all men being created equal, and the institution of slavery lasted another century after the Constitution’s ratification. Has anyone ever point-blank asked Scalia what he thinks about slavery or Jim Crow laws? If he opposes it, how does he justify it?
I think that they would say that these were rightly gotten rid of through ammendments (slavery and voting rights) or strict reading of the constitution (Jim Crow laws).
Both Scalia and Thomas (your strong originalists on the Court) would oppose slavery as unconstitutional, because the text of the Constitution prohibits slavery. One does not need to undertake a review of the Founders’ beliefs on these issues because the Constitution addresses slavery explicitly and Jim Crow laws implicitly:
Thus, an “originalist” read of the Constitution would lead to the conclusion that both slavery and Jim Crow laws are unconstitutional, because these two amendments to the constitution properly are read with the rest of the constitution.
If you can get past the unnecessary name-calling, these threads may be helpful in understanding Scalia’s methods of constitutional interpretation.
Exactly, Dan. Since the amendments are as much a part of the Consitution as the main body, the 13th amendment makes anti-slavery “originalist”. Originalists don’t think that things shouldn’t change, just that the change needs to come thru the legislative process.
Legislative process rather than court rulings. Thank you, I think I see.
As I understand it, the “originalist” position is that since the constitution defines the process by which it is to be modified, only modifications made in the defined way are to be considered relevant.
And you’d have to call it strange if someone were to argue that the Constitution is valid, but the amendments aren’t.
Actually, 72 years: 1790 - 1862
75 years: 1790 - 1865, the year the Thirteenth Amendment was ratified. Slavery didn’t end with either the beginning of the Civil War, nor the Emancipation Proclamation - it was still legal in the slave-states that remained with the Union.
Wouldn’t it be 78 years. The Constitution was adopted in 1787, not 1790
Actually, technically, it would be 1788. The Constitution had to be ratified by nine of the 13 colonies (2/3) to become officially adopted, and New Hampshire was the ninth to do so, in 1788.
Then again, Congress didn’t meet until 1789.
Well I guess I learned something here today. I have always been under the assumption that “original” meant just that. Once changes are made to something, in this case the amendments, it is no longer considered the original. Apparently logic doesn’t apply here.
And to add to that train of thought, the very fact that amendments to the Constitution were(are) possible, it cannot be considered static, carved in stone. The Court has always gotten involved in political actions and will continue to do so, swaying one way or the other. I think Scalia was confused if he thought only Constitutional amendments were legitimate governmental actions, read Constitutionally accurate. That would deny the power of the Supreme Court and its function of protection of minority groups to be heard. Given some of his rulings he certainly didn’t think that way. So how can he be considered an “originalist”, based on that definition of the term?
Scalia did not think that. In particular, it doesn’t take a Constitutional scholar to see that even the narrowest reading of the Constitution clearly gives different organs of the government various powers; the Congress in particular has a lengthy list of enumerated powers, and the 10th Amendment explicitly reserves certain powers to the state governments, and so on.
Originalism doesn’t mean “the original document” but rather that interpretation of the text should err on the side of stability and consistency over time. IOW, originalists argue that something in the Constitution means what it meant at the time it was written, and newer ideas should not be read into the text of the Constitution. Originalists think it is improper to assume that there are implications in the text aside from what is explicitly written.
Scalia was largely influenced by originalism but no judge or scholar subscribes 100% to any particular legal theory. And Scalia was notorious for coming up with tortured justifications for occasional decidedly unoriginalist ideas when they offended his Catholic morality.
The problem is that a number of modern concepts are not specifically mentioned in the constitution… for decades, separate but equal was considered a valid reading of the constitution - now, it is not. Right to privacy, right to abortion, sexual equality, right to use the washroom of your choice- all are subject to interpretations, however tortured. For example - how is separate washrooms or change rooms or sports programs for men and women different from separate for blacks and whites? …only when convenient for their contemporary points of view… But nobody on the supreme court takes this point of view. So the interpretation despite “originalism” is often colored through the lenses of modern society.
(Jim Crow for example - the logic was fairly simple - “it’s not equal if one school system gets significantly more money than the other equal system.”)
Worth noting that originalist ideas emerged from defense of slavery. That is their intellectual history. Slaveholders feared that broad interpretations of the commerce clause and other provisions would allow the federal government to ban slavery.
Which is why the Constitution of the Confederacy explicitly stated: “No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.”
Not the constitution exactly, but slavery should not have been allowed to remain from the very beginning
We hold these truths to be self-evident, that* all men are created equal**, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.*
The complete abandonment of the amendment process in favor of judicial reinterpretation is one of my pet peeves. How controversial can the simple principle that a legal document says what it means and means what it says be? I doubt anyone would want homeowner’s insurance based on a “Living Policy” determination of what the insurance company thinks it ought to pay for.