# Constitutional "Originalists" and Slavery **URL:** \ **Category:** Great Debates\ **Created:** [April 24, 2005, 7:32pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894 "2005-04-24T19:32:42Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [July 5, 2017, 8:05pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/181 "2017-07-05T20:05:16Z")
> [@k9bfriender](#): > > “Just asking questions” is a right wing rhetorical device as well. > > In the context and in the reply, it can certainly be inferred that the questions you propose are things that you would like to see. > > Now, while it does not mean that these are positions that you hold, if you were not aware that you were inferring that you did hold those positions, to the point of being surprised that someone assumed that you did, then you lack quite a bit of self awareness and perspective on how your posts are going to be perceived. I’m fully aware of how people may take someone asking about their thoughts on a topic. And watching it happen again and again amuses me. Instead of answering, they fall back to “Right winger!” and “Wow, another person ‘just asking questions’” Pretty funny to see each and every time it happens. Annoying when I’m actually curious about their view on a subject. As far as self awareness goes, I’m perfectly capable of understanding someone’s position on a topic while simultaneously disagreeing with it. Something a lot of people here have trouble with. So, as a party-fluid voting citizen, I am curious about your thoughts on the subject and the questions I asked. Not because I have a gotcha planned, and not because I believe those things should happen. So, thoughts? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 8:16pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/182 "2017-07-05T20:16:29Z")
> [@Iggy](#): > > How is that for an “Originalist” view on how the relationship between marriage law and the Constitution evolved over time? Looks cogent to _me_, for what that’s worth. It reminds me somewhat of a McDonald’s menu system, i.e. is it important that a citizen of the United States have a consistent set of rights and consistent expectation of equal treatment anywhere within the United States? The McDonald’s menu doesn’t cover every possible meal choice, but among the choices available, the quality will be consistent nationwide. The McDLT was a failed experiment, the dietary equivalent of the Sedition Act of 1918. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 8:25pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/183 "2017-07-05T20:25:14Z")
> [@Slash1972](#): > > So, thoughts? Well, if you are genuinely curious, and since I was the one you initially responded to: > [@Slash1972](#): > > What about the one where a man wakes up in a bizarre alternate America where the judiciary finds a “right to life” for fetuses in the Constitution, and thereafter, all laws made to curb abortions are Constitutional? I would think it a very strange result and I predict a significant aggravation of the problems of poverty in the more conservative states. > [@](#): > > What about the one where a man wakes up in a bizarre alternate America where the judiciary finds that “shall not be infringed” means that all laws that limit the sale, purchase, or carrying of guns are Unconstitutional? Well, “guns” or “arms” ? If the latter, I await the first American who decides to follow the example of David Hahn and assemble his own atomic bomb. I suppose crime _probably_ won’t get worse, but I predict more police shootings as the assumption moves from “the suspect may have a gun” to “the suspect probably has a gun”, especially if the suspect happens to be black. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [July 5, 2017, 8:52pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/184 "2017-07-05T20:52:52Z")
> [@Slash1972](#): > > I’m fully aware of how people may take someone asking about their thoughts on a topic. And watching it happen again and again amuses me. Instead of answering, they fall back to “Right winger!” and “Wow, another person ‘just asking questions’” > > Pretty funny to see each and every time it happens. If you are aware that your posts are likely to be perceived differently from how you intended, and you find it funny when people do that… that’s not really furthering the discussion, is it? > [@](#): > > Annoying when I’m actually curious about their view on a subject. Only you have the ability to control how you post. > [@](#): > > As far as self awareness goes, I’m perfectly capable of understanding someone’s position on a topic while simultaneously disagreeing with it. Something a lot of people here have trouble with. > > So, as a party-fluid voting citizen, I am curious about your thoughts on the subject and the questions I asked. Not because I have a gotcha planned, and not because I believe those things should happen. So, thoughts? The subject as a whole, as in the OP, or the hypothetical that you responded to with your “questions?” As far as the whole, well, apparently slavery was legal in the constitution, until we passed amendments making it not so much anymore. As far as philosophy, I see the constitution as a blueprint, a framework of sorts. It is not meant to define every law or right, but to give some sort of groundwork to build upon. It is a living document that needs to be interpreted in reflection to the times, technologies, and culture of those it covers. All amendments have interpretations and caveats to them. The first says that congress will make no laws against free speech, but it is both limited in that there are some sorts of speech that are illegal, and also extended in that no govt entity is allowed to stifle speech, not just congress. The second is a mishmash of terms, but is usually said to mean that congress can’t make gun laws. Well, we do have gun laws. There are some guns you cannot buy without some hard to get licenses, there are places you are not allowed to begin your gun. Following along that one as a textualist, it only says “arms” too, so that could be interpreted as the things on the side of your body, not things that go bang, so there is a need for interpretation even on that level. And so on, though I am not sure of all that much case law about the third amendment. Now, Bryan made a comment of “imagine that you wake up in a world…” and the conditions of the world that you were waking up in were the conditions that this world exist in right now. We live in a world where “a man can marry another man?!”, and where “judiciary can review and possibly strike down legislation on issues not specifically enumerated in the constitution and has been doing so for decades?!” are things that are the case, one of which for decades, one of which for years. Your response to that was to promote two “questions” that refer to a world that we do not live in, but instead are the world where many right wingers would like to. So, I assume when you say that, that there is a change to the man, whether it being an overnight change, or a sudden dimensional change, but it is a change to the status quo, unlike the post you replied to. So, if we live in a world where the supreme court says that abortions are murder, then we live in a world with many illegal abortions, many health problems because of that, and many women in jail for having miscarried in a suspicious way. In the second scenario, he wakes up in a world where he needs to own a gun, because with anyone being able to buy a gun, including the supermax prison inmates who are shooting their way out, the world has become a very dangerous place. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 5, 2017, 8:57pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/185 "2017-07-05T20:57:04Z")
> [@ElvisL1ves](#): > > **Shodan** , how is it that you’re having trouble recognizing the judiciary’s role in deciding on the constitutionality of laws? I’m not. How is it that you are having trouble recognizing the difference between enumerated rights, and some liberal judge’s opinion about what should be? > [@Johnny\_Ace](#): > > He appears to be arguing that the courts should only deal with the letter of the law, not the consequences it engenders. This is sort of in the same zip code as being true, so congratulations. SCOTUS should deal with the Constitution as it is, not how they think it should be. > [@](#): > > It doesn’t matter if a law creates or supports discrimination, only that it doesn’t explicitly _say_ that it does. Whoops, you need to file a change-of-address form, because you have changed zip codes. I’ve have never said anything even remotely resembling this. > [@Human Action](#): > > There were laws setting up marriage, though, and they must pass Constitutional muster like any other law. Yes. > [@](#): > > Under your reasoning, whites-only education would be just fine, because there would be no laws setting up non-white education, and no laws means no equal protection violation, right? No. The laws setting up education need to offer equal protection to all students who wanted to go to school. The laws setting up marriage need to offer equal protection to anyone who wanted to enter into the union of one man and one woman. Regards, Shodan ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 9:33pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/186 "2017-07-05T21:33:54Z")
A failure to understand nonsense is pretty mild, as failures go. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [July 5, 2017, 9:34pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/187 "2017-07-05T21:34:06Z")
> [@Shodan](#): > > No. The laws setting up education need to offer equal protection to all students who wanted to go to school. The laws setting up marriage need to offer equal protection to anyone who wanted to enter into the union of one man and one woman. This part is the fundamental disconnect. If **Shodan** is correct that marriage is/was/has always been merely and strictly the union of one man and one woman, then I think his argument has merit. I don’t think marriage is/was/has always been that (rather I think that marriage has constantly shifted and evolved in multiple ways, even if it was primarily and usually unions between one man and one woman), and therefore I don’t think his argument is convincing. But I recognize I’m not going to change his mind, and he won’t change mine, so there’s probably not much point to going on and on about it. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 9:59pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/188 "2017-07-05T21:59:25Z")
> [@iiandyiiii](#): > > If **Shodan** is correct that marriage is/was/has always been merely and strictly the union of one man and one woman, then I think his argument has merit. Maybe, if for some reason it was impossible to modify this definition. Apparently… it is not. It likely doesn’t matter, but I wager the early efforts to so define marriage were attempts to forestall polygamy. That a few centuries later it could be used to discriminate against homosexuals is just a lucky co-inki-dink. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [July 5, 2017, 10:36pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/189 "2017-07-05T22:36:36Z")
> [@Shodan](#): > > This is sort of in the same zip code as being true, so congratulations. SCOTUS should deal with the Constitution as it is, not how they think it should be. > [@](#): > > Whoops, you need to file a change-of-address form, because you have changed zip codes. I’ve have never said anything even remotely resembling this. The second follows directly from the first. It’s called logic. I’m the wrong person to take an elitist/condescending line with. I’ll take great pleasure in ripping your arguments limb from limb and showing to everyone else exactly how they’re unsupported and what tactics you’re using. I have neither sympathy nor tolerance for that shit. I doubt it’ll change the way you interact, but remember that I warned you. It doesn’t matter whether I convince you or not, just that I lay it out in front of everybody else to see. (And, of course, you conveniently ignored the rest of my post.) ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 11:15pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/190 "2017-07-05T23:15:21Z")
> [@Blue\_Blistering\_Barnacle](#): > > I find it a more interesting question to ask what the appropriate response should be if the local KKK and Neo-Nazi group want to share a meet and greet, and ask for a cake loaded up with swastikas and flaming crosses… This is actually an interesting question and it’d be a shame to let it go unexplored. I gather SCOTUS has set up a system of sorts for evaluating 14th Amendment claims and decided there are criteria which cannot be used to discriminate (barring some plausible reason otherwise) and every other criteria is fair game. Homosexuality is not (yet) one of these, but probably will be sooner or later. Membership in political groups like the Klan is not protected (yet) and I guess so far, bakers are safe from penalty for refusing to make cakes honouring such groups. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 6, 2017, 12:06am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/191 "2017-07-06T00:06:36Z")
> [@Shodan](#): > > I’m not. That’s what your bleating about how it should all be left to the legislative branch _is_ - a failure to understand that there has to be a way to make sure they stay constitutional. Really, the checks and balances system was in your middle school Civics class. You maybe shoulda paid attention. > [@](#): > > The laws setting up education need to offer equal protection to all students who wanted to go to school. The laws setting up marriage need to offer equal protection to anyone who wanted to enter into the union of one man and one woman. So, \*all \*students require equal protection, but only adults of a preferred sexuality do. Can’t you just make yourself say so? ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 6, 2017, 12:59pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/192 "2017-07-06T12:59:23Z")
> [@Shodan](#): > > No. The laws setting up education need to offer equal protection to all students who wanted to go to school. The laws setting up marriage need to offer equal protection to anyone who wanted to enter into the union of one man and one woman. > > Regards, > Shodan If the state can define marriage in that way, and thus justify excluding people from the many, many benefits that the state also set up for married people, why can’t it also define education narrowly as being for whites only? There’s no law of the universe that defines marriage or education a certain way, nor one that compels the state to lavish benefits upon people for getting married. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 6, 2017, 2:28pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/193 "2017-07-06T14:28:40Z")
> [@Johnny\_Ace](#): > > I’m the wrong person to take an elitist/condescending line with. I’ll take great pleasure in ripping your arguments limb from limb and showing to everyone else exactly how they’re unsupported and what tactics you’re using. I have neither sympathy nor tolerance for that shit. > > I doubt it’ll change the way you interact, but remember that I warned you. It doesn’t matter whether I convince you or not, just that I lay it out in front of everybody else to see. As you can imagine, I am as upset by this as I should be. > [@Human Action](#): > > If the state can define marriage in that way, and thus justify excluding people from the many, many benefits that the state also set up for married people, why can’t it also define education narrowly as being for whites only? Because no one was excluded from entering into the union of one man and one woman. Regards, Shodan ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [July 6, 2017, 2:45pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/194 "2017-07-06T14:45:55Z")
> [@Shodan](#): > > As you can imagine, I am as upset by this as I should be. > > Because no one was excluded from entering into the union of one man and one woman. > > Regards, > Shodan Marriage was polygamous long before it was monogamous, why are you trying to force your new roman definitions on society? If you can accept that marriage can evolve from polygamy to monogamy, why can you not accept that it can make an even smaller evolution to incorporate same sexes? ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [July 6, 2017, 2:49pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/195 "2017-07-06T14:49:16Z")
> [@Shodan](#): > > As you can imagine, I am as upset by this as I should be. What you don’t get is that I am literally trained for this. I’ve debated Ivy Leaguers and people from MIT, BC, and Syracuse, in front of academics, back in the day when formal debate hadn’t turned into some Twilight Zone exercise in speed-talking. So trust me when I tell you that you are a rank amateur at best. Your evasive maneuvers are as transparent to me as glass. So if that’s what props up your ego, keep it up, Buttercup. But you’d better bring your A+ game. As I’ve said, I’ll happily lay bare every way in which your argumentation falls short of the standard. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 6, 2017, 3:02pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/196 "2017-07-06T15:02:50Z")
> [@Shodan](#): > > Because no one was excluded from entering into the union of one man and one woman. > > Regards, > Shodan If schools are whites-only, then no one is excluded from schools. It’s the same logic, and nonsensical in both cases. Again, the (legal) definition of marriage and its (legal) benefits aren’t naturally occurring, they are the product of laws. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 6, 2017, 3:18pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/197 "2017-07-06T15:18:19Z")
> [@Shodan](#): > > Because no one was excluded from entering into the union of one man and one woman. And no one was excluded from entering into union with someone of their own race. If you see a difference there, you haven’t done anything to explain it. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [July 6, 2017, 3:57pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/198 "2017-07-06T15:57:15Z")
k9befriender: > [@](#): > > Marriage was polygamous long before it was monogamous, why are you trying to force your new roman definitions on society? Polygamy was not a multi-party arrangement between more than two people. It was simply multiple two-party arrangements, but not restricted to forcing a man to only make one such arrangement. For example, a polygamous man could divorce one of his wives without at all affecting the status of the others - their marriages to him is completely independent of the divorcing one’s marriage to him. The limiting of men to a single wife did not change the definition of a marriage relationship. It simply said a man can’t have more than one at a time. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 6, 2017, 4:19pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/199 "2017-07-06T16:19:06Z")
> [@Johnny Ace](#): > > What you don’t get is that I am literally trained for this. I’ve debated Ivy Leaguers and people from MIT, BC, and Syracuse, in front of academics, back in the day when formal debate hadn’t turned into some Twilight Zone exercise in speed-talking. So trust me when I tell you that you are a rank amateur at best. Your evasive maneuvers are as transparent to me as glass. > > So if that’s what props up your ego, keep it up, Buttercup. But you’d better bring your A+ game. As I’ve said, I’ll happily lay bare every way in which your argumentation falls short of the standard. My undershorts remain dry. But you are correct - I never would have guessed from reading your posts that you knew anything whatever about debate. > [@Human\_Action](#): > > If schools are whites-only, then no one is excluded from schools. It’s the same logic, and nonsensical in both cases. No, it isn’t the same logic. When equal protection applies, anyone can attend the public schools. When equal protection applies, anyone can enter into the union of one man and one woman. Public education means anyone can attend the school and get the education. That’s what “public education” means. In the same way, “marriage” means “the union of one man and one woman”, and anyone can enter into such a union. > [@](#): > > Again, the (legal) definition of marriage and its (legal) benefits aren’t naturally occurring, they are the product of laws. Agreed. Who makes those laws, and who (properly) changes them? And ultimately, who has the power to enumerate rights that are not already included in the Constitution? Read the Tenth Amendment - it makes that quite clear. Regards, Shodan ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 6, 2017, 4:37pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/200 "2017-07-06T16:37:52Z")
> [@Shodan](#): > > No, it isn’t the same logic. > > When equal protection applies, anyone can attend the public schools. When equal protection applies, anyone can enter into the union of one man and one woman. > > Public education means anyone can attend the school and get the education. That’s what “public education” means. In the same way, “marriage” means “the union of one man and one woman”, and anyone can enter into such a union. Covering the same ground again, but why not, I’ve got the time. So, if a state defined “public education” as something only whites could utilize, what then? It’s not at all clear why you believe legal definitions - the product of laws - are somehow beyond the reach of judicial review, and cannot violate the equal protection clause. Imagine that a state had a law which gave residents a $1,000 per year direct payment. The state further defined “resident” as someone living in the state for at least a year, and proclaiming faith in the divinity of Jesus Christ. How would that play out in court under your interpretation? After all, “resident” means “believer in Jesus”, says so right in the statute book, and anyone could be a believer. Case closed? > [@](#): > > Agreed. Who makes those laws, and who (properly) changes them? And ultimately, who has the power to enumerate rights that are not already included in the Constitution? Read the Tenth Amendment - it makes that quite clear. State and federal legislatures. This lawmaking power is subject to judicial review, however, and the equal protection clause is, in fact, part of the Constitution. [Previous page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=9) [Next page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=11)