# 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:** 9
**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, 10:09pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/161 "2017-07-04T22:09:07Z")
I have to wonder if any state ever had on its books a law about education that defined it as something only for white children or accepted it as “common law” that schooling was only for white children. In the absence of a specific constitutional enumeration, SCOTUS not only had no business weighing in on the matter, _they were the biggest traitors in history for even daring to imagine they could!_ Seriously, if there was “nothing uglier” about gays being happy for getting gay marriage, then black children going to school must have been a close second. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 5, 2017, 12:22pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/162 "2017-07-05T12:22:29Z")
> [@Bryan\_Ekers](#): > > That’s not responsive to the question I asked. You asked for evidence that gender was relevant to the definition of marriage. The evidence is that gender is referred to specifically in the definition. > [@](#): > > Related to education, which is not mentioned in the constitution and therefore by your standards, not a topic for SCOTUS. Equal protection is what is mentioned in the Constitution. Therefore it is a topic for SCOTUS. > [@John Mace](#): > > “Anything else” doesn’t have any limits. Now you’ve noted that there is a limit. We are, after all, discussing the idea that “words have meaning”, right? Right. The words where I explained about enumerated rights also have meaning. > [@Shodan](#): > > 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. > [@Moriarity](#): > > Common law is judge made law. Which judge created the definition of marriage as the union of one man and one woman? Regards, Shodan ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 2:04pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/163 "2017-07-05T14:04:54Z")
> [@Shodan](#): > > You asked for evidence that gender was relevant to the definition of marriage. The evidence is that gender is referred to specifically in the definition. You cited the definition in order to answer a question about the definition? Well, I suppose circular logic is a _kind_ of logic… Anyway, now explain how equal protection applies to education but not to marriage. related to my earlier comment, what if a state had segregated schools by law, hence race was “relevant” in the sense of being mentioned in the legal requirements and definitions for education? Still subject to review by SCOTUS? Where is the enumerated right for a black child to attend a whites-only school? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 5, 2017, 2:33pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/164 "2017-07-05T14:33:49Z")
> [@Bryan\_Ekers](#): > > Anyway, now explain how equal protection applies to education but not to marriage. I’ve already done that. **UltraVires** explained it. The state set up an education system. Black students were being denied the equal protection of the laws setting up the system. That was a 14th Amendment violation. There were no laws setting up SSM. Therefore no one was being denied the equal protection of any law, and no 14th Amendment violation. > [@](#): > > You cited the definition in order to answer a question about the definition? > > Well, I suppose circular logic is a kind of logic… It’s not circular logic. A tort, roughly speaking, is a civil wrong not involving a breach of contract. Someone who has suffered a breach of contract has not suffered a tort, because that’s not what a tort is. I understand your confusion. You are trying hard to get me to justify _why_ gender was included in the definition of marriage. That isn’t necessary - it is there already, by definition. You don’t think it should have been, and that’s a reasonable position. But it is there, and the effort to remove the reference to gender should have come thru legislators. Not judges. 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 5, 2017, 2:50pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/165 "2017-07-05T14:50:57Z")
Now explain the difference between straights-only marriage and whites-only education. Since, that is, you can’t address same-race-only marriage. Isn’t your problem really that you aren’t willing to consider same-gender marriage to be marriage at all? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 3:30pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/166 "2017-07-05T15:30:42Z")
> [@Shodan](#): > > I’ve already done that. **UltraVires** explained it. By circling back to the definition itself. But that’s okay, I don’t expect we’ll see much progress on this front. > [@](#): > > . You are trying hard to get me to justify _why_ gender was included in the definition of marriage. Well, more accurately, why gender _need_ be included. I remain curious if you _can_. If so, you would be the first. > [@](#): > > the effort to remove the reference to gender should have come thru legislators. Not judges. Well, the judges did it anyway, and it wasn’t for the first time, and the Republic nevertheless persists, so it’s unclear how your argument is based on anything more than some idealized view of the separation of powers that hasn’t existed in decades, if ever. Was there ever a case where SCOTUS recused itself because sacred “common law” was involved? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 5, 2017, 4:47pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/167 "2017-07-05T16:47:44Z")
**Shodan** , how is it that you’re having trouble recognizing the judiciary’s role in deciding on the constitutionality of laws? ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [July 5, 2017, 5:57pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/168 "2017-07-05T17:57:13Z")
He appears to be arguing that the courts should only deal with the letter of the law, not the consequences it engenders. It doesn’t matter if a law creates or supports discrimination, only that it doesn’t explicitly _say_ that it does. And then the courts are ‘writing law’ by striking it down for its effects. Notice an interesting pattern he uses. He posits a point, gets proven (pretty much unequivocally) wrong, and then never responds to that particular point again, just posits the next point to try to espouse the view that motivated him in the first place. I’ve done it to him several times now, and in each case he’s completely dropped that particular argument with never an admission that he was wrong in the first place. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 6:32pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/169 "2017-07-05T18:32:50Z")
So what makes for the more compelling _Twilight Zone_ premise: 1. A man wakes up in a bizarre alternate America where _a man can marry another man?!_ 2. A man wakes up in a bizarre alternate America where _the judiciary can review and possibly strike down legislation on issues not specifically enumerated in the constitution and has been doing so for decades?!_ ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [July 5, 2017, 6:42pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/170 "2017-07-05T18:42:29Z")
What about the one where a man wakes up in a bizarre alternate America where the judiciary finds a “right to life” for fetuses in the Constitution, and thereafter, all laws made to curb abortions are Constitutional? What about the one where a man wakes up in a bizarre alternate America where the judiciary finds that “shall not be infringed” means that all laws that limit the sale, purchase, or carrying of guns are Unconstitutional? ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [July 5, 2017, 6:57pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/171 "2017-07-05T18:57:07Z")
What about the one where the rightwingers on SDMB don’t post non sequitors in order to circumvent solid points made against their so-called arguments? (Hell, that one’s more off the wall than “Mr Dingle The Strong” 🆒) ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [July 5, 2017, 7:02pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/172 "2017-07-05T19:02:33Z")
What about the one where people didn’t assume someone was a right-winger just because they don’t agree with them 100% on everything? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 5, 2017, 7:19pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/173 "2017-07-05T19:19:23Z")
> [@Slash1972](#): > > What about the one where a man wakes up in a bizarre alternate America where the judiciary finds a “right to life” for fetuses in the Constitution, and thereafter, all laws made to curb abortions are Constitutional? So he wakes up in El Salvador? > [@](#): > > What about the one where a man wakes up in a bizarre alternate America where the judiciary finds that “shall not be infringed” means that all laws that limit the sale, purchase, or carrying of guns are Unconstitutional? So he wakes up in Somalia? ---
**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 5, 2017, 7:20pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/174 "2017-07-05T19:20:09Z")
> [@Shodan](#): > > The state set up an education system. Black students were being denied the equal protection of the laws setting up the system. That was a 14th Amendment violation. There were no laws setting up SSM. Therefore no one was being denied the equal protection of any law, and no 14th Amendment violation. > It’s not circular logic. There were laws setting up _marriage_, though, and they must pass Constitutional muster like any other law. Under your reasoning, whites-only education would be just fine, because there would be no laws setting up non-white education, and no laws means no equal protection violation, right? ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [July 5, 2017, 7:23pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/175 "2017-07-05T19:23:23Z")
> [@Slash1972](#): > > What about the one where people didn’t assume someone was a right-winger just because they don’t agree with them 100% on everything? I think the reason you would be assumed to be a right winger by those talking point is that those are right wing talking points. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [July 5, 2017, 7:39pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/176 "2017-07-05T19:39:32Z")
> [@Bryan\_Ekers](#): > > So he wakes up in El Salvador? > > So he wakes up in Somalia? Yeah, he’s actually in a superposition between El Salvador and Somalia. Only when he measures the amount of judicial activism does his location waveform collapse. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [July 5, 2017, 7:41pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/177 "2017-07-05T19:41:47Z")
> [@k9bfriender](#): > > I think the reason you would be assumed to be a right winger by those talking point is that those are right wing talking points. That’s weird. I wasn’t aware that questions were “talking points.” Nor was I aware that asking someone their opinion of right wing talking points identified the asker as a “right-winger” Strange new world, I guess. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [July 5, 2017, 7:48pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/178 "2017-07-05T19:48:31Z")
> [@Slash1972](#): > > That’s weird. I wasn’t aware that questions were “talking points.” Nor was I aware that asking someone their opinion of right wing talking points identified the asker as a “right-winger” > > Strange new world, I guess. “Just asking questions” is a right wing rhetorical device as well. In the context and in the reply, it can certainly be inferred that the questions you propose are things that you would like to see. Now, while it does not mean that these are positions that you hold, if you were not aware that you were inferring that you did hold those positions, to the point of being surprised that someone assumed that you did, then you lack quite a bit of self awareness and perspective on how your posts are going to be perceived. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 5, 2017, 7:56pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/179 "2017-07-05T19:56:55Z")
> [@Human\_Action](#): > > There were laws setting up _marriage_, though, and they must pass Constitutional muster like any other law. > …? Yes and no. Marriage was traditionally performed by the church and recorded in church records. [Civil registration of marriages](https://en.wikipedia.org/wiki/Civil_registration) did not become mandatory in the UK until 1837, so the USA was well along its own path by then. The system, in as much as there was a singular system, in the United States was that marriages were to be dealt with on a state, rather than federal, level. And so the various states began to regulate marriage in their own ways with slight variations between the states. As recently as 1833 the US Supreme Court ruled that the Bill of Rights applied only to the federal government. So in the era that states began regulating marriages they did so with the legal understanding that the Bill of Rights did not apply. It was perfectly OK if one state wanted to defer to a particular religious denomination’s guidance in formulating marriage laws. Along comes the Civil War and in its aftermath the 14th Amendment was adopted in 1868. Whether or not the authors of the 14th Amendment intended that it result in the Bill or Rights being incorportated against (made applicable to ) the states is of some dispute among historians. Nevertheless by the late 20th century there had been a series of court ruling making the Bill of Rights apply to the states. So… at the time the various laws regulating marriage were passed they did not need to pass constitutional muster in the sense of being in compliance with the Bill of Rights. At the time the Bill of Rights was understood to not apply to the states. And, of course, many of initial state laws regulating marriage were passed prior to ratification of the 14th Amendment, so there was certainly no restraint on marriage laws in anticipation of complying with an Amendment that had not yet been drafted or ratified. Only with incorportation of the 14th Amendment itself and its incorporation against the states was there a need for marriage laws to pass constitutional muster as regards to the Bill of Rights and the 14th. How is that for an “Originalist” view on how the relationship between marriage law and the Constitution evolved over 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 5, 2017, 8:03pm UTC](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894/180 "2017-07-05T20:03:13Z")
> [@Slash1972](#): > > Yeah, he’s actually in a superposition between El Salvador and Somalia. Only when he measures the amount of judicial activism does his location waveform collapse. I’m not sure if you’re trying to be clever-funny, or trying to be bitter-funny. Anyway, “judicial activism” has been going on the U.S. for decades, arguably since _Marbury_. It looks like a feature of the system, not a bug, and I don’t know why _Brown_ and _Loving_ are apparently okay but _Obergefell_ is not (and _Heller_ for not going far enough, it seems). Of the various restrictions proposed for the judiciary in this thread, I’m not sure which, if any, have ever been in effect. [Previous page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=8) [Next page](https://boards.straightdope.com/t/constitutional-originalists-and-slavery/300894.md?page=10)