# 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:** 7
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 3, 2017, 5:44pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/121 "2017-07-03T17:44:18Z")
In some sense I look for the day when Ginsberg and Kennedy are replaced with conservative Justices, and then some decision gets rammed down the throats of liberals. No doubt they will all just shrug their shoulders and say “oh well, it worked and that’s the system we have nowadays”. Regards, Shodan ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 3, 2017, 5:49pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/122 "2017-07-03T17:49:52Z")
> [@Bryan\_Ekers](#): > > For fifty percent of the American population, “marrying your boyfriend” was just fine. For some reason, it was important to make sure the other fifty percent were prevented from doing so, though ninety-plus percent of that fifty percent would never consider it anyway. And yet you couldn’t get legislators to change the law, nor could you amend the Constitution. 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 3, 2017, 5:55pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/123 "2017-07-03T17:55:12Z")
> [@Shodan](#): > > In some sense I look for the day when Ginsberg and Kennedy are replaced with conservative Justices, and then some decision gets rammed down the throats of liberals. No doubt they will all just shrug their shoulders and say “oh well, it worked and that’s the system we have nowadays”. Does it matter to you if it’s a _good_ decision? Would you accept taking a bit of a hit if you were confident liberals were taking a _bigger_ hit? I gather American liberals aren’t too fond of _Citizens United_. How much personal satisfaction did you derive from their reaction, and do you feel _Citizens United_ was a good decision independent of anyone’s reaction? Do you think _Obergefell_ was motivated more by a desire to put “equal treatment” into practice, or more by a desire to spite the conservatives? I’m just curious about the extent of this government-by-payback philosophy. ---
**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 3, 2017, 5:59pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/124 "2017-07-03T17:59:14Z")
> [@Shodan](#): > > And yet you couldn’t get legislators to change the law, nor could you amend the Constitution. Well, it turns out neither was necessary and for that matter, _Obergefell_ wasn’t the first time this sort of thing had happened, was it? That’s why I asked for your opinions on _Brown, Miranda_ and _Roe_. It’s entirely possible that what you’ve been describing as judicial overreach has been going on for decades. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [July 3, 2017, 6:00pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/125 "2017-07-03T18:00:33Z")
Regarding the 3/5 wording and the lack of a truly equal (to races) Constitution…At the time the Constitution was being composed, there were strong factions that believed that blacks and Indians were not fully human enough to be granted equal rights with whites. There were also factions that believed the opposite. If either side had insisted on their preferred wording, there would have been some states that refused to sign and would be left out of the USA. The 3/5th compromise was just that – a compromise that all could – perhaps grudgingly – agree to. Each side got some of what they wanted, enough to not boycott the signing. The writers thought that getting all the states to sign was more important than pleasing one side at the expense of the other, not unlike Lincoln’s desire to preserve the Union. United we stand, divided we fall. I also suspect that they were aware that however imperfect it was, it could be changed later, and that’s exactly what was done. One can only imagine the side arguments…“My slave is worth 80% of your worthless hide, but your slaves are only worth 30%, and Indians are savages, so they are only worth 10%!” ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [July 3, 2017, 6:04pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/126 "2017-07-03T18:04:04Z")
nm. Thoroughly ninja’d. ---
**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 3, 2017, 6:26pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/127 "2017-07-03T18:26:39Z")
> [@Shodan](#): > > It would be if it had been implemented in ways that didn’t otherwise violate the part of the Constitution that says that legislators make laws, not judges. Cite. Oh, that’s right, you can’t. Because no court has ever written a law. Just another exaggeration for effect. ---
**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:** [July 3, 2017, 6:30pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/128 "2017-07-03T18:30:58Z")
> [@Shodan](#): > > No, I meant “a law”. The Constitution doesn’t define marriage, and the 14th refers to the equal protection of the laws. Laws that don’t exist don’t violate the Constitution. Apparently you meant “laws about marriage”, not “law” which would cover any and every law in the US. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 3, 2017, 6:41pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/129 "2017-07-03T18:41:19Z")
> [@Johnny\_Ace](#): > > Cite. Oh, that’s right, you can’t. Because no court has ever written a law. Just another exaggeration for effect. I disagree with this. I think the resolution will turn on what you mean by “written a law,” but in any meaningful functional definition of “law,” courts have written plenty of law. For example, what’s the definition of “burglary?” And where did it come from, in early states’ laws? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 3, 2017, 7:52pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/130 "2017-07-03T19:52:05Z")
> [@John\_Mace](#): > > Apparently you meant “laws about marriage”, not “law” which would cover any and every law in the US. I don’t understand your objection. If you want to change any law in the US, that is a job for legislators. If you meant “as long as it doesn’t violate any enumerated right”, and that’s why you mentioned the Second Amendment, sure, but that has nothing to do with SSM. Because, as mentioned, the Constitution doesn’t define marriage. Marriage is defined, or it was, in the common law, as the union of one man and one woman. SCOTUS changed that. > [@Bryan Ekers](#): > > Does it matter to you if it’s a good decision? No, not particularly. A decision arrived at illegitimately is illegitimate. I don’t want Justices making law from the bench even if I like the laws. > [@](#): > > Would you accept taking a bit of a hit if you were confident liberals were taking a bigger hit? No, I don’t want anyone to take a hit, in the sense of getting or not getting SCOTUS to make up laws. We live in a Constitutional republic, with strictly defined rules of law and a system of checks and balances. I would like that to continue. I put no faith in the rule of wise philosopher-kings even if they have a 5-4 majority on the Court. > [@](#): > > Obergefell wasn’t the first time this sort of thing had happened, was it? That’s why I asked for your opinions on Brown, Miranda and Roe. It’s entirely possible that what you’ve been describing as judicial overreach has been going on for decades. Yes, it has, more’s the pity. _Roe v. Wade_ is the prime example, but perhaps not for the reasons you suspect. Personally, I am pro-choice. I strongly support the repeal of _Roe_, and for many of the same reasons I support the repeal of _Obergefell_. There is no mention of privacy, abortion, or marriage in the Constitution. They are not enumerated rights. Therefore, they are not appropriate topics for the Court. The Tenth Amendment states quite clearly who has the power to define new rights, and it ain’t the Supreme Court. > [@Johnny Ace](#): > > Cite. Oh, that’s right, you can’t. I already have. Before _Obergefell_, the legal definition of marriage was the union of one man and one woman. Now, it isn’t. What legislature changed that? 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 4, 2017, 12:05am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/131 "2017-07-04T00:05:47Z")
> [@Shodan](#): > > No, not particularly. A decision arrived at illegitimately is illegitimate. I don’t want Justices making law from the bench even if I like the laws. What the Justices have been doing for decades seems to be generally acceptable. > [@](#): > > No, I don’t want anyone to take a hit, in the sense of getting or not getting SCOTUS to make up laws. I may have misconstrued your expressed wish to see something crammed down liberals’ throats, then. > [@](#): > > We live in a Constitutional republic, with strictly defined rules of law and a system of checks and balances. I would like that to continue. I’m not sure where you think you live, but you seem to _actually_ live in a place where this kind of judicial ruling (i.e. on an issue not specifically mentioned in your constitution) is actually pretty routine. Do you want to “continue” from January 1803, pre-_Marbury_? I think that’s as far as you’d have to go to recapture the America you’re describing. > [@](#): > > There is no mention of privacy, abortion, or marriage in the Constitution. They are not enumerated rights. Therefore, they are not appropriate topics for the Court. The Tenth Amendment states quite clearly who has the power to define new rights, and it ain’t the Supreme Court. Education isn’t specifically mentioned in your constitution, either. Was _Brown_ a judicial overreach? _Should_ the states be free to mandate racially-segregated schools (or for that matter, decide to do away with schools altogether) ? Can the states mandate religious schooling for all? It seems to follow from the idea that SCOTUS can only rule on issues specifically mentioned in the constitution, that the President and Congress are similarly restricted. After all, if SCOTUS can’t weigh in on these issues, there’s nobody to over-rule Congress or the President on these issues. Forget the Air Force - there’s no constitutional support for it, at least at the Federal level. The states can maintain their own bomber fleets, if they want, though they’d better be careful about letting them fly over each other’s airspace - that’s how wars start. Heck, forget 1803. You may as well try to re-establish the Articles of Confederation. > [@](#): > > I already have. Before _Obergefell_, the legal definition of marriage was the union of one man and one woman. Now, it isn’t. What legislature changed that? Well, at the state level, some legislatures changed their laws before _Obergefell_ and some changed afterward (though at that point, it’s more of a symbolic gesture). Did you mean the _national_ legal definition? ---
**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:** [July 4, 2017, 12:24am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/132 "2017-07-04T00:24:09Z")
> [@Shodan](#): > > I don’t understand your objection. If you want to change any law in the US, that is a job for legislators. If you meant “as long as it doesn’t violate any enumerated right”, and that’s why you mentioned the Second Amendment, sure, but that has nothing to do with SSM. Because, as mentioned, the Constitution doesn’t define marriage. Marriage is defined, or it was, in the common law, as the union of one man and one woman. SCOTUS changed that. You keep jumping between “laws about SSM” and “laws” (emphasis added). One is a tiny subset of the other and what is true of the former needn’t be true of the latter. If you can’t understand that, I can’t explain it any more clearly. ---
**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 4, 2017, 1:29am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/133 "2017-07-04T01:29:47Z")
Heck, if the 14th was only meant to apply to concepts specifically mentioned in the constitution, wouldn’t it be kind of… useless? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 4, 2017, 2:38am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/134 "2017-07-04T02:38:07Z")
> [@Bryan\_Ekers](#): > > Heck, if the 14th was only meant to apply to concepts specifically mentioned in the constitution, wouldn’t it be kind of… useless? Not at all. It provided that states (and not just the federal government in the 5th amendment) must provide citizens with privileges or immunities and due process of law. It also provided that states must provide “equal protection” of the laws (IOW, loitering cannot be illegal if committed by blacks, but legal if committed by whites–read the Black Codes in SC and LA enacted in 1865-that was the primary purpose for the equal protection clause). Equal protection is not as nearly as broad as some on your side make it. We couldn’t have any law if that were the case because every law acts more harshly on the subset of people who wish to break it. Drunk driving laws, for example, affect alcoholics and not teetotalers. What font of substantive rights do you believe we have because of the 14th amendment that we would not have otherwise? (Besides the federal/state distinction). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 4, 2017, 2:47am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/135 "2017-07-04T02:47:16Z")
> [@Bryan\_Ekers](#): > > Education isn’t specifically mentioned in your constitution, either. Was _Brown_ a judicial overreach? _Should_ the states be free to mandate racially-segregated schools (or for that matter, decide to do away with schools altogether) ? Can the states mandate religious schooling for all? > > It seems to follow from the idea that SCOTUS can only rule on issues specifically mentioned in the constitution, that the President and Congress are similarly restricted. After all, if SCOTUS can’t weigh in on these issues, there’s nobody to over-rule Congress or the President on these issues. Forget the Air Force - there’s no constitutional support for it, at least at the Federal level. The states can maintain their own bomber fleets, if they want, though they’d better be careful about letting them fly over each other’s airspace - that’s how wars start. > > Heck, forget 1803. You may as well try to re-establish the Articles of Confederation. Education is not mentioned in the Constitution, but if a State provides a system of education, it must do so without regard to race, which is the purpose of the 14th amendment. Nobody is arguing against judicial review. We are arguing that it must be based upon principles that we agree upon beforehand and are logically consistent. The Constitution has to make sense. If the principles are: 1)equal protection, 2) a right to marriage, so therefore two men must have the right to marry one another, we have to find some sort of sound, logically consistent principle as to why three men or women cannot marry, why children cannot marry, and why an adult father and daughter cannot marry. Nobody has been able to provide that principle that doesn’t simply devolve into their own personal, subjective judgment. ---
**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 4, 2017, 5:32am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/136 "2017-07-04T05:32:31Z")
> [@Bricker](#): > > I disagree with this. I think the resolution will turn on what you mean by “written a law,” but in any meaningful functional definition of “law,” courts have written plenty of law. > > For example, what’s the definition of “burglary?” > > And where did it come from, in early states’ laws? Apparently the way he applies it, any interpretation of a law by the courts with which he disagrees is ‘written a law.’ Burglary came from the Old English system of laws, as did much of our legal system. The technical definition varies with the state, but it originally meant what we now would call ‘breaking and entering’ rather than the commonly-accepted implication of robbery. ---
**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 4, 2017, 5:48am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/137 "2017-07-04T05:48:42Z")
Gah. This site is beginning to get annoying, technically. Multiple posting. ---
**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 4, 2017, 5:52am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/138 "2017-07-04T05:52:04Z")
Two times. ---
**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 4, 2017, 5:58am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/139 "2017-07-04T05:58:35Z")
Apparently I have to quote your own words back at you. > [@Shodan](#): > > It would be if it had been implemented in ways that didn’t otherwise violate the part of the Constitution that says that legislators make laws, not judges. This reflects a basic misunderstanding of the judicial system. You appear to believe that laws’ meanings are always 100% comprehensible in every possible situation. Unfortunately, that isn’t the case. There is a reason why the judicial system exists, and that is _to interpret the law._ You’ve made clear that you don’t like some of their interpretations. As has been said before, sorry, but that’s the way the system works. As _you’ve_ said before and appear to be fond of, if you don’t like it, amend the Constitution. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 4, 2017, 8:11am UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/140 "2017-07-04T08:11:11Z")
> [@Musicat](#): > > Regarding the 3/5 wording and the lack of a truly equal (to races) Constitution…At the time the Constitution was being composed, there were strong factions that believed that blacks and Indians were not fully human enough to be granted equal rights with whites. > > There were also factions that believed the opposite. No. Scientific racism was a century in the future. Opinions holding Slavery to be the natural condition of “the blacks” were also a nineteenth century feature. Slavery was a common thing at the time and people of all races suffered under it. Yes, in America slavery was mostly an African affair, but that was since the supply of slaves was from Africa. At the same time the Turks, the Pesians and the Indians were importing “white” slaves from Europe, the Caucasus and the steppes, alongside African imports. So I don’t think you can attribute such opinions to men of the 1780’s. [Previous page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=6) [Next page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=8)