# 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:** 2
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2017, 8:20pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/21 "2017-06-26T20:20:51Z")
> [@Lumpy](#): > > How controversial can the simple principle that a legal document says what it means and means what it says be? You’ve misunderstood the competing arguments. It’s not your fault. This straw manning is very common. But, in fact, all sides of the jurisprudence debate believe that laws mean what they say. The question, as ever, is how to resolve situations in which the language itself doesn’t provide a clear answer, or when it fairly provides multiple answers. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 26, 2017, 8:41pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/22 "2017-06-26T20:41:36Z")
> [@Lumpy](#): > > 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. > [@Richard\_Parker](#): > > You’ve misunderstood the competing arguments. It’s not your fault. This straw manning is very common. But, in fact, all sides of the jurisprudence debate believe that laws mean what they say. The question, as ever, is how to resolve situations in which the language itself doesn’t provide a clear answer, or when it fairly provides multiple answers. One of the fallacies that (IMO) the “originalists” and the “strict constructionists” fall for is the idea that there is some single acceptable interpretation of what words mean, either now, or when they were drafted. The debate over the Second Amendment is a classic example. Despite the extensive examination of the meaning of the words in the Amendment by Justice Scalia in his opinion in _D.C. v Heller_, his determination as to what the “original” meaning of those words was in 1791 is fraught with difficulties, many of which are pointed out in the excellent dissent by Justice Stevens. So even without getting into tortured readings that are outcome-determinative, the concept that “words mean what they say” is a sufficient basis for making a decision falls somewhat short of reality. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2017, 8:45pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/23 "2017-06-26T20:45:50Z")
Indeed. The very people who debated and voted on the First Amendment and the Commerce Clause–the originals themselves–had profound disagreements about what they meant. ---
**Author:** ![Weisshund](https://avatars.discourse-cdn.com/v4/letter/w/ba8739/32.png) [@Weisshund](https://boards.straightdope.com/u/Weisshund)\ **Post date:** [June 26, 2017, 9:03pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/24 "2017-06-26T21:03:08Z")
> [@md2000](#): > > for decades, separate but equal was considered a valid reading of the constitution But considered by who? The constitution does not separate people by type, it only sees one people. Society on the other hand is sometimes (or perhaps many times) at odds with the very thing that protects it. > [@](#): > > For example - how is separate washrooms or change rooms or sports programs for men and women different from separate for blacks and whites Probably bad example. Women get certain things separate for reasons most of them probably very much agree with. I think most women kind of like having a locker room where they don’t have some guy standing there fixated on her boobs or vagina. And while not all sports need a division, some do need a separation from the testosterone fueled wargame that is the men’s version, and believe or not, a lot of men still do have some perhaps outdated chivalrous aspects to their nature and wound find it hard to impossible to play the sport if they though that a woman may get hurt and they could be the one causing the hurt. You could call that silly or outdated, maybe even sexist i guess, i call it a damned sight better than the flipside where some think it’s quite alright to use a woman as a punching bag. That is of course in no way on the same level as separate and totally unequal that existed for a person of african descent. (Or what ever is todays PC term) You and i both know that was not even remotely ever designed to be separate but equal. More a case of separate and middle finger at the constitution and law and everything else and we still doing things our way down here boy, 100 years later. ☹ I do not think you can even remotely compare the 2 situations at all ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 26, 2017, 9:04pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/25 "2017-06-26T21:04:30Z")
> [@Weisshund](#): > > 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.\* …all men… The problem with Originalism is that the court then tries to infer what the framers of the constitution (and amendments) specifically intended when they wrote each part. Much has been written, back and forth, for example, about whether the second amendment was about minuteman type militias or the freedom to carry guns, or both, or neither except narrow circumstances. There was a lot less concept of privacy (perhaps). Sexual equality was not a concept. Miranda was nowhere in the framers’ minds, it is thought. And so on… But then, every “deduction” of the framers’ intent is a filter of the wording through the point of view of the person (SCOTUS judge) making the determination. And as mentioned, anything at odds with the interpreter’s morality will of course be more deeply analyzed to “see” what the authors “really meant”. The devil can quote scripture to suit his needs and all that… ---
**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:** [June 26, 2017, 9:13pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/26 "2017-06-26T21:13:27Z")
> [@Richard\_Parker](#): > > Indeed. The very people who debated and voted on the First Amendment and the Commerce Clause–the originals themselves–had profound disagreements about what they meant. During the debate, sure. But presumably they thought they were setting something down when the words on paper were ratified; otherwise, how could they know they were supporting the same thing? I’d like to see a cite for people at the time voting for inclusion of a clause while publicly claiming the clause meant two different things! ---
**Author:** ![RivkahChaya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rivkahchaya/32/8919_2.png) [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)\ **Post date:** [June 26, 2017, 9:21pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/27 "2017-06-26T21:21:57Z")
> [@Doug\_Mac](#): > > 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. Well, except it’s in the body of the document that it can be amended, and how to do so. It’s not the gospels, or the Book of Revelation, or whatever it was that condemned anyone who tried to blot one word from the text. If you never changed a document that had provisions for changing it, and clearly anticipated the need for change, because you wanted to keep it pristine, I think you’d be dishonoring it. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 26, 2017, 9:46pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/28 "2017-06-26T21:46:33Z")
> [@Weisshund](#): > > But considered by who? > The constitution does not separate people by type, it only sees one people. > > Society on the other hand is sometimes (or perhaps many times) at odds with the very thing that protects it. > > Probably bad example. > Women get certain things separate for reasons most of them probably very much agree with. > I think most women kind of like having a locker room where they don’t have some guy standing there fixated on her boobs or vagina. > > And while not all sports need a division, some do need a separation from the testosterone fueled wargame that is the men’s version, and believe or not, a lot of men still do have some perhaps outdated chivalrous aspects to their nature and wound find it hard to impossible to play the sport if they though that a woman may get hurt and they could be the one causing the hurt. > > You could call that silly or outdated, maybe even sexist i guess, i call it a damned sight better than the flipside where some think it’s quite alright to use a woman as a punching bag. > > That is of course in no way on the same level as separate and totally unequal that existed for a person of african descent. (Or what ever is todays PC term) > > You and i both know that was not even remotely ever designed to be separate but equal. > More a case of separate and middle finger at the constitution and law and everything else and we still doing things our way down here boy, 100 years later. ☹ > I do not think you can even remotely compare the 2 situations at all I don’t disagree about the concept - but of course you can. I’m playing devil’s advocate here; a literalist reading of the constitution either meant “all men” or “all people”. Just because some guy is uncomfortable changing in the same room as black people (or drinking from the same fountain) is not a reason to accommodate that feeling. So why is it OK for women vs men? So really what we are seeing is - “based on current moral standards and habitual behavior, separate but equal for sexes is sometimes OK.” In other words, the literal Constitution document can be re-interpreted to adjust for contemporary morality or community standards. Pornography, for example, used to be illegal under those contemporary moral standards. Now _some_ of it is protected free speech. So - literalist or applied to contemporary society? I vote for the latter. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [June 26, 2017, 9:51pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/29 "2017-06-26T21:51:54Z")
> [@Weisshund](#): > > The constitution does not separate people by type, it only sees one people. Or sometimes 3/5’s of a people. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 26, 2017, 9:57pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/30 "2017-06-26T21:57:15Z")
> [@Weisshund](#): > > But considered by who? > The constitution does not separate people by type, it only sees one people. > [@Telemark](#): > > Or sometimes 3/5’s of a people. The Constitution did separate out slaves and free. It did (and still does) separate out Indian Tribes. Article 1, Section 8: > [@US Constitution](#): > > To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes I believe there are a few other places that call out “the Indian Tribes”. ---
**Author:** ![igor\_frankensteen](https://avatars.discourse-cdn.com/v4/letter/i/839c29/32.png) [@igor\_frankensteen](https://boards.straightdope.com/u/igor_frankensteen)\ **Post date:** [June 26, 2017, 10:13pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/31 "2017-06-26T22:13:36Z")
> [@Lumpy](#): > > During the debate, sure. But presumably they thought they were setting something down when the words on paper were ratified; otherwise, how could they know they were supporting the same thing? I’d like to see a cite for people at the time voting for inclusion of a clause while publicly claiming the clause meant two different things! ``` You are making a nonsense argument. First, you are necessarily implying various things, which you have no "cites" for yourself. That the words as written at the time, were selected because they had narrow and specific meanings. That everyone who signed the Constitution supported every word in it. That anyone who wanted a different meaning, made a formal public statement to that effect at the time. ``` Second, your argument demonstrates that you have never studied any non-cartoon history of the Constitutional convention, which would have shown you very clearly, that the so-called Founders DID NOT agree on all sorts of things, and had to use vague language on purpose, in order to get the thing signed at all. And that’s what makes the majority of so-called “originalists” either purposely ignorant, or outright liars, from my own point of view. There WAS no clear and unambiguous “Original Constitution.” The only reason why most people pretend to be “originalists,” if they actually do know the factual history of the United States, is because they want to avoid taking full responsibility for what they know are stands that many people would be furious at them for. The only way someone can be both honestly and factually an “originalist,” is if they are narrowly dedicated to the idea that the actual physical words in the Constitution, are magically rigid, and that the people who participated in putting them on paper were not personally in control of what was written down. ---
**Author:** ![Weisshund](https://avatars.discourse-cdn.com/v4/letter/w/ba8739/32.png) [@Weisshund](https://boards.straightdope.com/u/Weisshund)\ **Post date:** [June 26, 2017, 10:28pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/32 "2017-06-26T22:28:12Z")
> [@md2000](#): > > for example, about whether the second amendment was about minuteman type militias or the freedom to carry guns, or both, or neither except narrow circumstances. Well you could look at two things. 1. Where in the constitution the amendment is 2. To whom does the right pertain to It appears in the Bill of Rights which was put together due to questions of protecting individual rights. And the right is addressed as such “_the right of the people_” As opposed to a right of the state or other. ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [June 26, 2017, 11:07pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/33 "2017-06-26T23:07:14Z")
Moving this thread (which was in General Questions) to Great Debates. **samclem** , moderator. ---
**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:** [June 26, 2017, 11:14pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/34 "2017-06-26T23:14:41Z")
> [@igor\_frankensteen](#): > > That the words as written at the time, were selected because they had narrow and specific meanings. I am astonished that we are even having this debate. Words mean something. Especially in legal documents, they mean something. People study for years to become lawyers so that they can argue that words have a precise meaning. If the words in the Constitution didn’t have a “narrow and specific meaning”, _ **WTF were they for??** _ > [@](#): > > That everyone who signed the Constitution supported every word in it. Of course not. But they accepted that they were getting a package deal: the least-lousy compromise that could be hashed out, and they were choking down the bad with the good. Doubtless the 3/5 compromise on slaves made few people happy; but both the people who’d wanted full apportion including slaves and those who wanted none accepted that 3/5 meant 3/5, not that they expected that they could later argue that it “really” meant something else. > [@](#): > > Second, your argument demonstrates that you have never studied any non-cartoon history of the Constitutional convention, which would have shown you very clearly, that the so-called Founders DID NOT agree on all sorts of things And yet in the end, after weeks of debate and multiple drafts, they ended up with a final document that they agreed that what was set down on parchment and ink was what the states would (or would not) ratify. > [@](#): > > and had to use vague language on purpose, in order to get the thing signed at all. In many cases they had to agree on generalities while leaving specific bones of contention politely unmentioned. But general isn’t the same thing as vague. > [@](#): > > And that’s what makes the majority of so-called “originalists” either purposely ignorant, or outright liars, from my own point of view. There WAS no clear and unambiguous “Original Constitution.” Are you saying that the entire document was a deliberate bunch of weasel words, and the Federalists intended from the start to take a mile of authority from every inch of concession? If so, the anti-Federalists were right and the states got sold a pig in a poke. > [@](#): > > The only way someone can be both honestly and factually an “originalist,” is if they are narrowly dedicated to the idea that the actual physical words in the Constitution, are magically rigid, and that the people who participated in putting them on paper were not personally in control of what was written down. We’re talking about a constitution, the **founding document of a government** , the great granddaddy of all legal documents. It had sure as hell BETTER have “rigid” words, or else all animals are equal but some are more equal than others. If I say “you are a motherfucking idiot”, and you go screaming to the mods that I’ve used abusive language, can I claim that the phrase “you are a motherfucking idiot” is open to interpretation and that it doesn’t “really” constitute a gratuitous insult forbidden by the rules of the board? Or that under “an evolving standard of decency” we’ve come to _de facto_ accept that certain language is acceptable under an expanded standard of free expression? ---
**Author:** ![Weisshund](https://avatars.discourse-cdn.com/v4/letter/w/ba8739/32.png) [@Weisshund](https://boards.straightdope.com/u/Weisshund)\ **Post date:** [June 26, 2017, 11:51pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/35 "2017-06-26T23:51:21Z")
> [@Telemark](#): > > Or sometimes 3/5’s of a people. Come on, really? Since you are going to toss that out like that, perhaps you would like to explain the 3/5ths compromise? Or should we just leave it floating about completely out of context? ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [June 27, 2017, 12:22am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/36 "2017-06-27T00:22:15Z")
> [@Weisshund](#): > > Come on, really? Yes, really. It directly refutes your point, and everyone on this thread knew exactly what it meant. ---
**Author:** ![Weisshund](https://avatars.discourse-cdn.com/v4/letter/w/ba8739/32.png) [@Weisshund](https://boards.straightdope.com/u/Weisshund)\ **Post date:** [June 27, 2017, 12:32am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/37 "2017-06-27T00:32:48Z")
> [@John\_Mace](#): > > The Constitution did separate out slaves and free. It did (and still does) separate out Indian Tribes. Article 1, Section 8: > > I believe there are a few other places that call out “the Indian Tribes”. “Indian Tribes” Are sovereign entities, you might kind of think of them akin to foreign nations i suppose? i think “domestic dependent nations” is the phrasing used? That has no bearing on a native american person as an individual, it pertains to dealing with the tribe as an entity. And 3/5ths is not meant to be a division of the person themselves as a human being Its meant to be a compromised limitation on the states holding that poor person. Guess you could call it a terribly weak wrist slap If that same individual were to find themselves living in the free north, they did not find themselves personally only 3/5ths of a human being. If you want to argue is was a shitty compromise, sure i’ll agree. Im not sure what the alternative would be, if you left me in charge if would probably be a civil war before there is a country to have a civil war and i dont know that the country would be able to take that so soon? Which is why you dont put me in charge, im not good at shitty compromises and stuff like that. I’m sure quite a few people found it a bitter pill ---
**Author:** ![Weisshund](https://avatars.discourse-cdn.com/v4/letter/w/ba8739/32.png) [@Weisshund](https://boards.straightdope.com/u/Weisshund)\ **Post date:** [June 27, 2017, 12:34am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/38 "2017-06-27T00:34:19Z")
> [@Telemark](#): > > Yes, really. It directly refutes your point, and everyone on this thread knew exactly what it meant. No, it actually doesn’t, but if that’s how you want to leave it, so be it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 27, 2017, 1:27am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/39 "2017-06-27T01:27:59Z")
> [@Weisshund](#): > > “Indian Tribes” Are sovereign entities, you might kind of think of them akin to foreign nations i suppose? > > i think “domestic dependent nations” is the phrasing used? > > That has no bearing on a native american person as an individual, it pertains to dealing with the tribe as an entity. Gee, since “foreign nations” are also explicitly called out, no, I don’t think they are akin to that. They clearly are something distinct, else they would not have had to be called out distinctly. And here’s something from the 14th amendment, which mentions Indians as individuals: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” > [@](#): > > And 3/5ths is not meant to be a division of the person themselves as a human being > Its meant to be a compromised limitation on the states holding that poor person. > Guess you could call it a terribly weak wrist slap I made no mention of 3/5s, just “slaves”, which was a separation of people by type, contrary to your claim that no such thing was made in the constitution. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 27, 2017, 2:53am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/40 "2017-06-27T02:53:41Z")
> [@Lumpy](#): > > I am astonished that we are even having this debate. Words mean something. Especially in legal documents, they mean something. People study for years to become lawyers so that they can argue that words have a precise meaning. I won’t even bother with the rest of your rant. But as someone who went through law school, then was an attorney for years, this statement is factually false. Indeed, one could VERY well argue that the MAIN purpose of legal education is to show you how two people can interpret the exact same words in multiple different ways, each of which is perfectly reasonable. Can’t tell you the number of times I had to do exactly that in law school. You are wrong about the meaning of words, and the language of a statute or constitution. Plain, simple, wrong. [Previous page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=1) [Next page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=3)