# 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:** 11
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 6, 2017, 4:40pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/201 "2017-07-06T16:40:42Z")
Of course the problem is that if a right isn’t enumerated, how do you claim a law violates it? It seems to me that the 9th and 10th amendments only make sense in the context of a drastically limited federal power: that the federal government was originally intended to have zero power not explicitly granted it, and that therefore ANY federal laws exceeding the fed’s mandate were to automatically be a violation of the 9th and/or 10th amendments. But we’ve been sliding down _that_ slippery slope since 1819, with the “Proper and Necessary” case of McCulloch v. Maryland. ---
**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, 4:48pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/202 "2017-07-06T16:48:38Z")
The right to equal protection of the laws has been very well enumerated since the ratification of the 14th Amendment. So? ---
**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, 5:46pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/203 "2017-07-06T17:46:07Z")
> [@cmkeller](#): > > k9befriender: > > 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. Shodan is defining marriage as between one man and one woman. I am just pointing out that that is not how it has always been defined, and in fact, it is relatively recently in the course of human history that it was defined in that fashion. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 6, 2017, 6:02pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/204 "2017-07-06T18:02:29Z")
> [@Richard\_Parker](#): > > 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. “The term “originalism” has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding” > **[Originalism](https://en.wikipedia.org/wiki/Originalism)** > > Originalism is a legal theory that bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism and other interpretations related to a living constitution framework. Instead, originalists argue for democratic modifications of laws through the legislature or through constitutional amendment. > Contemporary originalism emerged during the 1980s and greatly influenced American le... Are you sure you don’t mean federalism or something like that? ---
**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, 6:06pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/205 "2017-07-06T18:06:05Z")
> [@Human\_Action](#): > > 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? That would fail, because it violates the establishment of religion clause, which is enumerated in the Constitution. > [@](#): > > 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. Yes it is. Now all that is necessary is to show who was being denied the protection of being able to enter into the union of one man and one woman, and you will have demonstrated how the 14th was being violated. > [@k9bfriender](#): > > Shodan is defining marriage as between one man and one woman. I am just pointing out that that is not how it has always been defined, and in fact, it is relatively recently in the course of human history that it was defined in that fashion. By “Shodan” I assume you meant “the common law”. There has never been any time in the US where marriage was defined in any other way as “the union of one man and one woman”. Utah had to renounce polygamy before it was accepted into the Union. Note that Utah did not argue that the 14th Amendment meant that marriage meant the union of one man and multiple women or anything else. Regards, Shodan ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 6, 2017, 6:07pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/206 "2017-07-06T18:07:25Z")
Isn’t this a zombie thread? ---
**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 6, 2017, 6:09pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/207 "2017-07-06T18:09:48Z")
> [@Lumpy](#): > > But we’ve been sliding down _that_ slippery slope since 1819, with the “Proper and Necessary” case of McCulloch v. Maryland. Do you know what you call a slippery slope that has lasted for 200 years? A sidewalk. ---
**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, 6:17pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/208 "2017-07-06T18:17:46Z")
Looks like \*\*Shodan \*\*majored in Tautology. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [July 6, 2017, 6:31pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/209 "2017-07-06T18:31:55Z")
> [@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. You sound like the nerd version of Uncle Rico. ---
**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, 6:41pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/210 "2017-07-06T18:41:56Z")
> [@Shodan](#): > > That would fail, because it violates the establishment of religion clause, which is enumerated in the Constitution. That’s what I get for trying to mix up my analogies for the sake of readability. Ok, rephrase: Kentucky law defines a “resident” as a white person who has lived in the state for at least 1 year. Kentucky law further provides a number of benefits available only to residents. Is it a defense to an equal-protection claim to say that the definition of “resident” is “a white person who has lived in the state for a year”? > [@](#): > > Yes it is. Now all that is necessary is to show who was being denied the protection of being able to enter into the union of one man and one woman, and you will have demonstrated how the 14th was being violated. What if - at the risk of blowing your mind - it’s the restriction of marriage benefits to opposite-gender couples that is, itself, the equal protection violation? That is, your assumption that a definition of marriage somehow can’t, all by itself, violate the equal protection clause is incorrect. [Here is Kentucky’s definition-of-marriage statute](http://www.lrc.ky.gov/statutes/statute.aspx?id=36464), from the dusty antiquity of 1998. Note that it is a statute like any other in the Kentucky Revised Statutes. There’s no clause exempting it from judicial review, or having to comport with the state or federal constitutions. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 6, 2017, 7:04pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/211 "2017-07-06T19:04:34Z")
> [@k9bfriender](#): > > Shodan is defining marriage as between one man and one woman. I am just pointing out that that is not how it has always been defined, and in fact, it is relatively recently in the course of human history that it was defined in that fashion. I don’t think it’s right to say that its a relatively recent definition. I think the point that the poster was making is that marriage has essentially always been between one man and one woman. Polygamist cultures allowed that one man (or, rarely, woman) to entered into multiple marriages, but each marriage was bilateral. There have certainly be substantial variations regarding age laws and consanguinity as well as the number of marriages a person can enter into, but I’m not aware of any support for the claim that marriage as a bilateral opposite-sex relationship is a “recent” definition. (I could, of course, be wrong. I’m no anthropologist. I’d certainly be curious to know the historic human definition of marriage). ---
**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 6, 2017, 7:07pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/212 "2017-07-06T19:07:52Z")
Heck, if all it takes to render a law immune to judicial review is artful defining of terms, just define “student” as “white child”. Thus no black child has a case, since they aren’t students by definition. Sure, all \*students \* get equal protection of the law. No problem. I gather it was a mistake for the southern states to pass laws that all _children_ had to go to school, giving SCOTUS room to pounce. Had they instead said: 1. “Student” is legally defined as “white child.” 2. All students (see section 1 for definition) are required to attend school. …then SCOTUS would be helpless. Seriously, treating legal definitions as unassailable? That’s some Sovereign Citizen bullshit right there. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 6, 2017, 7:40pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/213 "2017-07-06T19:40:55Z")
> [@Bryan\_Ekers](#): > > Do you know what you call a slippery slope that has lasted for 200 years? A sidewalk. A sidewalk like the ones in San Francisco on a rainy day you mean? Because we keep sliding further and further. The Interstate Commerce Clause. The end of congressional declarations of war. Executive orders. Never-ending foreign wars. Taxes that are “penalties”, not taxes. At least on the Left, continued attempts to declare the Second Amendment a dead letter. Judicial activism. Have you read the Anti-Federalist papers? Most of the things that critics said would be unintended consequences of the new constitution in fact did come true, and the federalists who poo-pooed them as alarmists were wrong. Strict federalism has become a sick joke. Yeah, maybe that ship sailed before either of us were born but that doesn’t make it right; Roman citizens in Augustus Caesar’s time wondering what the hell happened to the Republic could have said the same. ---
**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, 8:12pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/214 "2017-07-06T20:12:37Z")
It’s just all gone right to heck ever since the Whigs took power, hasn’t 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 6, 2017, 8:16pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/215 "2017-07-06T20:16:23Z")
> [@Lumpy](#): > > A sidewalk like the ones in San Francisco on a rainy day you mean? Because we keep sliding further and further. The Interstate Commerce Clause. The end of congressional declarations of war. Executive orders. Never-ending foreign wars. Taxes that are “penalties”, not taxes. At least on the Left, continued attempts to declare the Second Amendment a dead letter. Judicial activism. Yeah, yeah, dogs and cats, living together, mass hysteria… By any plausible measure, the United States is a stronger, freer, better nation than in 1819. Its citizens lead longer, more prosperous lives than their early 19th-century ancestors, enjoying a standard of living hardly imaginable 200 years ago. The whole point of the slippery slope metaphor is that it warns of a disastrous end result. What you’re describing isn’t even a slope, let alone a slippery one. > [@](#): > > Have you read the Anti-Federalist papers? Most of the things that critics said would be unintended consequences of the new constitution in fact did come true, and the federalists who poo-pooed them as alarmists were wrong. Strict federalism has become a sick joke. Yeah, maybe that ship sailed before either of us were born but that doesn’t make it right; Roman citizens in Augustus Caesar’s time wondering what the hell happened to the Republic could have said the same. Well, you don’t really have _strict_ federalism, you have _strong_ federalism, and unless you view positively the days where states could pass laws discriminating on the basis of race, sex and religion, I’m not sure what it is you’re complaining about. The anti-federalist critics had their concerns, but if they said the results would be overall negative, they were wrong. Sure, maybe there’s some alternate history where the federal government remained weak. I bet a lot of those histories include paths where what is now called the United States isn’t a single country at all, but a Europe-like patchwork of rivaling nations that periodically go to war with each other. Bluntly, I can’t take your complaints seriously because I can’t see how your proposed alternative is any better, and indeed it looks potentially a whole lot worse. ---
**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, 8:20pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/216 "2017-07-06T20:20:31Z")
> [@Bryan\_Ekers](#): > > …unless you view positively the days where states could pass laws discriminating on the basis of race, sex and religion, I’m not sure what it is you’re complaining about. That is exactly the thing that they are complaining about when they talk about “State’s rights”. Well, that and abortion. ---
**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 6, 2017, 8:57pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/217 "2017-07-06T20:57:45Z")
> [@k9bfriender](#): > > That is exactly the thing that they are complaining about when they talk about “State’s rights”. > > Well, that and abortion. Guns, too, I gather. But drugs? No-sir-ee-bob! Banned coast to coast! ---
**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 7, 2017, 2:51am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/218 "2017-07-07T02:51:05Z")
> [@Shodan](#): > > My undershorts remain dry. Congratulations to Fruit of the Loom. > [@](#): > > But you are correct - I never would have guessed from reading your posts that you knew anything whatever about debate. I can’t blame you for that; how would you be able to recognize it? But that’s why I’m here…to redress people’s ignorance. 1. You might want to vet your arguments more carefully. (In formal debate, that effectively happens because you and your partner will go over everything beforehand, so that might be taken care of, if he knows what he’s doing.) You might have discovered, for instance, that _Loving v. Virginia_ is a state case. Or that striking down laws by SCOTUS for unconstitutionality is not the same thing as repeal. If we’re doing the vetting here, you’re leading into #2 below. 2. The ‘throw shit against the wall to see what sticks’ method doesn’t impress. It’s undisciplined, and it appears that you’re casting about for an effective line of argument rather than knowing how you were going to argue in the first place. 3. When you don’t address a topic it’s assumed either that you don’t want to or don’t know how (or both). (There’s a possible reason for it in formal debate, which is that you might run out of time without being able to get to it. But not here. It might get you a hit to speaker points anyway, for poor time management, but what’s certain is that points not dealt with are automatically adjudicated in favor of the opposing team when deciding victory.) Moving the goalposts isn’t going to impress the judges, either, and leads to the same result, since you’re not dealing with the original point. 4. Claiming things without citing evidence when required is a no-no, especially when you spend the time strenuously fighting against providing it. It simply gives the appearance that you have none. There is no legitimate justification for using this tactic, and would get you a big hit, both for its use and for not making the points that you could have made in the time you were arguing why you weren’t going to provide the evidence. 5. This doesn’t really apply here so much as in formal debate, but if you used that sarcastic tone you’d get a hit toward speaker points. It shows disrespect for everyone in the room. (Duh.) Here, it just means you attract it in return. OK. Now. There are two results of a debate: which team won, and speaker points. The former is obvious; the latter is a rating given by each judge for each of the participants in the debate, on a scale of 1 to 10. It has no effect on victory in the debate, but rates the performance and style of each speaker. At the end of a tournament, the person/people with the most speaker points wins the First Speaker award. In this particular debate, as a judge I’d give you a rating somewhere between 2 and 4, probably to the lower end of the spectrum, although your in-person presentation and polish could adjust that up or down slightly. I have no way to judge that here, obviously. But if we included your perpetration of #4 in this debate (which was actually in a different one), it’d be a solid 1. And yes, that’s if you walked into the room and I had no idea who you were. Let’s just say you wouldn’t be winning any trophies. Or anywhere near it, for that matter. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 7, 2017, 12:35pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/219 "2017-07-07T12:35:36Z")
That’s very nice, but are you ever actually going to get to the part where you debate the OP instead of declaring yourself the winner? > [@](#): > > In this particular debate, as a judge I’d give you a rating somewhere between 2 and 4… Good thing you’re not a judge, then, or this might have some relevance. > [@Human Action](#): > > What if - at the risk of blowing your mind - it’s the restriction of marriage benefits to opposite-gender couples that is, itself, the equal protection violation? I think we’ve covered this one. Anyone can enter into the union of one man and one woman. Everyone, therefore, is equally protected by that law. SCOTUS didn’t like that, so they made up a new law and now everyone is equally protected by that. The illegitimacy comes from the fact that SCOTUS made up the law. I think I’ve repeated myself enough for one thread. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 7, 2017, 12:51pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/220 "2017-07-07T12:51:12Z")
> [@Shodan](#): > > I think I’ve repeated myself enough for one thread. That is the only accurate statement you’ve made in it. We still await the day when you realize that repetition is not support. [Previous page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=10) [Next page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=12)