# 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:** 12
**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 7, 2017, 1:06pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/221 "2017-07-07T13:06:37Z")
> [@Shodan](#): > > 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 Fair enough. Either you can’t wrap your head around the counterargument, or you just don’t want to debate it, because none of your repetitions actually addresses it. Oh well; like I said, I had the time. ---
**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 7, 2017, 2:55pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/222 "2017-07-07T14:55:01Z")
It’s like a parallel universe where Jefferson wrote back to the Baptists of Danbury to say “Your tears make me smile, you cuck snowflakes!” ---
**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 7, 2017, 3:33pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/223 "2017-07-07T15:33:58Z")
k9befriender: > [@](#): > > 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. And what I responded, which you don’t seem to have grasped, is that no, that is not a different definition. In polygamist societies, a man could enter into multiple marriages, but each marriage was between one man and one woman. A polygamous man was not in a three-or-more-way arrangement with all of his wives. He was in many simultaneous two-way arrangements, i.e., marriages, by the same definition of marriage we have today in this society (notwithstanding the removal of the man-woman part of the definition in recent years). ---
**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 7, 2017, 3:51pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/224 "2017-07-07T15:51:37Z")
> [@cmkeller](#): > > k9befriender: > > And what I responded, which you don’t seem to have grasped, is that no, that is not a different definition. In polygamist societies, a man could enter into multiple marriages, but each marriage was between one man and one woman. A polygamous man was not in a three-or-more-way arrangement with all of his wives. He was in many simultaneous two-way arrangements, i.e., marriages, by the same definition of marriage we have today in this society (notwithstanding the removal of the man-woman part of the definition in recent years). Were there laws (or at least customs) regarding the divisions of his property upon his death? ---
**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, 5:06pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/225 "2017-07-07T17:06:21Z")
> [@Shodan](#): > > 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? Good thing you’re not a judge, then, or this might have some relevance. 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 Wrong answer, buddy. I am a judge. So are **ElvisL1ves** , and **Bryan Ekers** , and everyone else reading this thread, including lurkers. Yep, we’ve covered it. Equal protection doesn’t mean ‘equal protection only for a man and woman who want to enter into the institution of marriage.’ OK, I’ll play devil’s advocate. If SCOTUS wrote a law, quote it for me, including the specific reference in Federal law. Truth is, you could be a halfway decent debater, if you could get over a few issues. First, your attitude sucks. You don’t convince judges or make friends by being condescending and sarcastic. Second, you keep quoting evidence or logic that is false on its face. You may not be able to see it, but it is. And you emotionally wed yourself to it (pun unintended) so that you can’t let it go. Ask yourself why I’ve been able to catch you in factual inaccuracies and you haven’t, though I know you’ve tried and I’ve swatted you away. Hence the need for vetting. I don’t need that, through long experience and knowing exactly what the fuck I’m talking about. Doesn’t mean that I’m always right, just that I’m not often wrong. And the bottom line is that you’re more interested in winning than finding what’s true. All three of those are deal breakers. ---
**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 7, 2017, 6:14pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/226 "2017-07-07T18:14:58Z")
Bryan Ekers: > [@](#): > > Were there laws (or at least customs) regarding the divisions of his property upon his death? In Jewish law, I don’t believe that a wife ever, by default, inherits her deceased husband’s estate. All wives are entitled to being supported from the estate based on the terms in the “Ketubah” document that is required at a Jewish wedding. This support is ongoing until she remarries. As far as the children inheriting, the sons (or daughters, in the absence of any sons) of all wives have equal rights to shares of the estate. The deceased’s first-born gets a double portion, and all the others get a single portion, regardless of which wife they were born from. ---
**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 7, 2017, 6:29pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/227 "2017-07-07T18:29:20Z")
> [@cmkeller](#): > > Bryan Ekers: > > In Jewish law, I don’t believe that a wife ever, by default, inherits her deceased husband’s estate. All wives are entitled to being supported from the estate based on the terms in the “Ketubah” document that is required at a Jewish wedding. This support is ongoing until she remarries. > > As far as the children inheriting, the sons (or daughters, in the absence of any sons) of all wives have equal rights to shares of the estate. The deceased’s first-born gets a double portion, and all the others get a single portion, regardless of which wife they were born from. And modern-day legal marriages have rules that dispensed with the sexism. It wasn’t a big leap to disregard the sexes, too. I don’t think anyone in this thread has an inability to comprehend anything, there is just varying willingness to recognize the real-world ramifications. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 7, 2017, 6:46pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/228 "2017-07-07T18:46:02Z")
> [@Bryan\_Ekers](#): > > Were there laws (or at least customs) regarding the divisions of his property upon his death? As I understand it, Islamic law calculates a “spouse share” (there are also shares for children and surviving parents) and that is divided equally among the spouses. Alternatively, I believe that some African countries allocate the property based on the number of children. Other societies skip the spouses entirely and the inheritance goes to children (presumably with some sort of maintenance obligation for the widows). ---
**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 7, 2017, 7:12pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/229 "2017-07-07T19:12:19Z")
Bryan Ekers: > [@](#): > > I don’t think anyone in this thread has an inability to comprehend anything, there is just varying willingness to recognize the real-world ramifications. Well, k9befriender was clearly (in his response to me) missing the point of my post about the definition of marriage in past polygamous societies. And you seem to be not comprehending that I’m not at all talking about how things should be going forward, but simply addressing a misunderstanding about what historical polygamy meant vis a vis the historical 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 7, 2017, 7:22pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/230 "2017-07-07T19:22:13Z")
> [@cmkeller](#): > > Well, k9befriender was clearly (in his response to me) missing the point of my post about the definition of marriage in past polygamous societies. And you seem to be not comprehending that I’m not at all talking about how things should be going forward, but simply addressing a misunderstanding about what historical polygamy meant vis a vis the historical definition of marriage. I seriously doubt k9befriender or anyone else assumed historical polygamy meant regular orgies, but the minor point is that there was societal recognition of second wives in societies that permitted polygamy. I suggest the original effort to define marriage as “_one_ man, _one_ woman” was to deny this recognition. The concepts involved are not especially difficult, I’m just tiring slightly of this repetition of “Well, you obviously don’t comprehend _this_” / “Yeah? Well, _you_ obviously don’t comprehend _THIS_”. ---
**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 7, 2017, 7:44pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/231 "2017-07-07T19:44:07Z")
Bryan Ekers: > [@](#): > > I seriously doubt k9befriender or anyone else assumed historical polygamy meant regular orgies, but the minor point is that there was societal recognition of second wives in societies that permitted polygamy. But there was no societal recognition of the second wife as a third party in the marriage that had previously been only between the man and his first wife. Society recognized that a man can enter into multiple two-party agreements. The first and second wife had no legally-recognized relationship to one another. There was a marriage between man and woman 1, and there was a marriage between man and woman 2. The definition of marriage did not change with the outlawing of polygamy. ---
**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 7, 2017, 11:45pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/232 "2017-07-07T23:45:36Z")
Well, now we’re delving into the definition of “definition” and I decline to pursue the matter. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 8, 2017, 1:43am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/233 "2017-07-08T01:43:25Z")
> [@Bryan\_Ekers](#): > > . . . delving into the definition of “definition” . . . “What is ‘absolute truth?’” “A five to four decision of the Supreme Court.” (Dan O’Neill) ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 8, 2017, 2:20am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/234 "2017-07-08T02:20:54Z")
> [@cmkeller](#): > > But there was no societal recognition of the second wife as a third party in the marriage that had previously been only between the man and his first wife. Society recognized that a man can enter into multiple two-party agreements. The first and second wife had no legally-recognized relationship to one another. There was a marriage between man and woman 1, and there was a marriage between man and woman 2. The definition of marriage did not change with the outlawing of polygamy. I question your assertion that, in all the different polygamous societies that existed (and continue to exist) throughout history, none of them ever recognized any kind of legal relationship between two women married to the same man. Also, I dispute the idea that changing marriage from an arrangement that a man could enter with multiple women simultaneously, to an arrangement that a man can only enter into with one woman at a time, is not a change to the 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 8, 2017, 4:56am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/235 "2017-07-08T04:56:42Z")
> [@Trinopus](#): > > “What is ‘absolute truth?’” > “A five to four decision of the Supreme Court.” > (Dan O’Neill) In fairness, getting a matter _to_ SCOTUS is a long and arduous path, through the vetting of lower courts. It’s not like five justices are roaming the country, looking for wrongs to right. If they were, I’m sure they’d be driving a garishly painted van of some sort. “…and it would’ve worked, if not for those meddling judges…” ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 8, 2017, 6:55am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/236 "2017-07-08T06:55:18Z")
> [@Lumpy](#): > > 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. That would reduce the federal government to the status of a very limited free association treaty. And it would make the Reconstruction amendments very strange indeed. I think we more or less have to treat the Tenth as a dead letter, lest we toss great gobs of law since which presumably had good reason to be passed. Whatever the “Constitution in exile” might be interpreted to be, the USA has been a sovereign nation with a constitutional tradition that treats the federal government as a government of the people for a long time. I would happily write a new unitary constitution and shred the one written by slavers if that makes you feel better. ---
**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 8, 2017, 4:42pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/237 "2017-07-08T16:42:11Z")
> [@foolsguinea](#): > > That would reduce the federal government to the status of a very limited free association treaty. Not really. The federal government was originally intended to have very strong authority, just within rigidly established boundaries. For example look at all the sovereign powers Article One Section Ten calls on the states to surrender. > [@](#): > > And it would make the Reconstruction amendments very strange indeed. Amendments are just that, amendments- they modify or overwrite the previous text of the document. Granted the Fourteenth Amendment could have been a hell of a lot clearer on exactly what its scope was to be and how that was to be enforced. > [@](#): > > I think we more or less have to treat the Tenth as a dead letter, lest we toss great gobs of law since which presumably had good reason to be passed. You’re a braver man than I am if you’re willing to stand up in public and say out loud that this silly notion that governments should obey people instead of vice-versa ought to be scrapped. > [@](#): > > I would happily write a new unitary constitution and shred the one written by slavers if that makes you feel better. [parrot voice]: “AAWRK! Slavers! AAWRK!”[/parrot voice] Seriously, _ **that** _ again? That nothing else they ever said or did matters because by progressive standards they forfeited all moral authority? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 8, 2017, 7:04pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/238 "2017-07-08T19:04:58Z")
> [@Lumpy](#): > > You’re a braver man than I am if you’re willing to stand up in public and say out loud that this silly notion that governments should obey people instead of vice-versa ought to be scrapped. States’ rights are not about governments obeying the people. They’re more the other way around: legacy institutions telling the people what we can and can’t do with our national government. **BrainGlutton** isn’t here to make this argument anymore, so I’ll say it as best I can: The people of the USA aren’t really a bunch of European colonies anymore; we have become a nation in our right. The Whig “American System” substantially worked at bringing us together and defining us as a people. Due to internal mobility, the mainstream of the USA is not a Missourian people, a Kentuckian people, an Ohioan people, a Kansan people, and so on, but a United-Statesian people, or what we commonly call “the American people.” The idea of “Jeffersonian democracy” seems to be that we would be ruled by local aristocrats drawn from the largest landowners, while the more mobile working class and middle class are treated as an afterthought, guest workers in their own country. It sneers at the great, unified, industrial society that we have built, and it does not understand it. I can have family roots in Kentucky, be born in Oklahoma, live in Missouri, go to school in Kansas, and get a job in California, and still be in one country–my country. And this is normal. This is what my people actually do. “Federalism” is a fundamental misunderstanding of what my people are and how this country actually works–to lionize Thomas Jefferson but forget Henry Clay; to push an archaic idea of states’ rights that doesn’t understand that the USA became the richest country in the world by union and integration; to take boxes drawn on the map in the great conquest of the continent in the 1800’s and make them higher and more sovereign than the cities built up later by a mature society; to take those boxes and elevate above the people of the United States of America and above our national government, a government and a people without which most of those state governments would be nothing. It is a fundamental error on the level of Adolf Schicklgruber emptying the universities of scholars he found insufficiently German. Your history classes may have taught you that America has always been merely a collection of sovereign states run by benevolent patricians on the Jeffersonian model, but _that doesn’t make it true._ We are not well served by this “federalism.” We are a people, and _our_ government, our sovereign government, is the government of the United States of America. And we will use that government as we see fit, and not be bound by “states’ rights.” What is a state anyway? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 8, 2017, 7:10pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/239 "2017-07-08T19:10:30Z")
More to the point: A state government is no more “the people” than the federal government. They’re a government protesting their historically held privileges. ---
**Author:** ![Pantastic](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@Pantastic](https://boards.straightdope.com/u/Pantastic)\ **Post date:** [July 8, 2017, 9:00pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/240 "2017-07-08T21:00:05Z")
> [@Miller](#): > > I question your assertion that, in all the different polygamous societies that existed (and continue to exist) throughout history, none of them ever recognized any kind of legal relationship between two women married to the same man. Also, I dispute the idea that changing marriage from an arrangement that a man could enter with multiple women simultaneously, to an arrangement that a man can only enter into with one woman at a time, is not a change to the definition of “marriage.” The assertion is bullshit even if you limit it to America - pre-European settlement, a lot of Native American societies had gender, sex, and marriage customs that wildly diverge from European and Middle Eastern norms. This is the first quick article I could find on it, but it’s pretty well documented [Native American Marriage | Native American Netroots](http://nativeamericannetroots.net/diary/1084) . The trick is that Europeans tended to sweep a lot of this ‘unnatural’ stuff under the rug, then actively suppressed anything that didn’t hit a narrow set of norms. [Previous page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=11) [Next page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=13)