How do originalists get around the 3/5 rule, and etc.?

As Scalia said once, the Constitution “ought to mean…what it meant when it was adopted.” So Article I Section 2 says that black people get 3/5 of a vote, and Indians none. Fourteenth amendment adopted in 1868 seems to lift the restrictions for blacks but Indians still can’t vote. How did he rectify these archaic notions with his belief in originalism?

They accept the constitution as amended, often urging – if you want to require states to allow something like same sex marriage, pass an amendment, then you’re fine.

Black people were never given 3/5 of a vote, they were disenfranchised completely. The 3/5 compromise was the method by which slaves would be counted for the purpose of determining slave states’ populations and thus their proportional representation in the House.

Section 2 of the 14th Amendment does away with the 3/5 rule, requiring that “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.”

The “Indians not taxed” bit is a rather odd vestigial clause. It is never defined in statute, but in instructions to census takers in the 19th century is given to mean Indians living on reservations or “in the wild.”

In 1924, the Indian Citizenship Act made the clause moot by granting the Dept of the Interior the power to grand US citizenship to all Indians, and make them fall under the “taxed” category whether living on reservations or not.

The 3/5 rule isn’t about black people. It’s about enslaved people.
The 3/5 rule still applies, but since there are no more enslaved people, it never comes up in practice.

Yes, “what it meant when it was adopted” includes the assumption “what each amendment meant when it was adopted.”

After all, the original Constitution includes a mechanism for changing itself. That the document can change is not in dispute by anyone. The argument is whether the Constitution must be changed via the amendment process, or whether it can be changed via evolving judicial opinion.

In Scalia’s opinion, you can’t eliminate slavery merely by reasoning that the culture has changed so we should interpret it differently than the original signers. If you want to eliminate slavery, you get the states to approve an amendment.

Originalists are fine with amendments.

They would also say that the Dred Scott decision was a prime example of the Living Constitution in action.

By reading the text of Article I, Section 2, and then by reading the Fourteenth Amendment.

Did you do that?

If you had, here’s what you would have seen:

First, you see there’s nothing about voting, right? That section is about counting people up for the purposes of assigning Representatives in the U.S. House of Representatives. The southern states wanted slaves to count as one person, and were opposed to the notion that they should count less. The northern states were opposed to counting slaves at all, because that would have given the south more power in the House. The compromise was counting slaves as 3/5ths, Indians that were not taxed – that is, not subject to state or federal authority – were likewise excluded.


I find the death penalty to be an abhorrent and archaic expression of blood vengeance and feel it has no place in a moral and just society.

But I don’t say that it should be forbidden by the Eighth Amendment’s ban on cruel and unusual punishment, because that’s not what the people that enacted the Eighth Amendment thought they were doing. Their idea of permissible punishments included death. So I favor ending the death penalty by legislation or amendment, but not by a court finding the Eighth Amendment prohibits it.

That’s a textualist view.

The Originalist-Textualist-Analist black-robe boys must have their knives presharpened for this one if it ever gets into the courts.

I’d think a better texualist’s view would be what it says. “Cruel or unusual.” If current thinking is that the death penalty is cruel then it should be unconstitutional. One can easily argue the other way as I’m sure that the original writers ideas of permissible punishments didn’t include specifically electrocution or death by lethal injection. So they must not have meant to allow that.

It does not. See the 14th Amendment, as above.

Why? The Constitution explicitly grants Congress the right establish laws on the subject of citizenship and naturalization, as part of their enumerated powers.

My understanding is that the entire Bill of Rights was textually, originally intended to apply only to the Federal government. Many of the original amendments have since been “nationalised” (I think that is the term) over the dead bodies (figuratively speaking) of the TO school. It is also my understanding that this process of nationalization enabled such rulings and legislation of epochal humaneness as Brown and the Indian Citizenship Act. Where was your dude Scalia on those two? I recall a blurb which I cannot cite that he acquiesced on Brown. If so I wonder how he rationalized it (and how Bricker rationalizes it).

What is the difference between a textualist and an originalist, and why does your interpretation of the 8th not include both?

If the definition of “cruel and unusual” is to be limited to what it was at the time the eighth amendment was adopted, then shouldn’t the definition of “arms” in the second amendment also be limited to what “arms” consisted of when the amendment was adopted? We can have all the muzzle-loading weapons we want?

I did not know this, thank you for pointing it out.

And the Constitution also gives Congress the power to regulate commerce with the Indians, and also to impose taxes throughout the US. Taking all those powers together, Congress has plenty of authority to tax Indians within the US, eliminating the concept of “Indians not taxed”.

The Incorporation doctrine is the thing you’re looking for.

Because there was a constitutional amendment: the 14th Amendment was a change to the Constitution which has been interpreted as applying most of the Bill of Rights to the states. That is consistent with Scalia’s philosophy: it is for Congress and the states to change the Constitution, and the courts then apply that change.

A strict textualist interpretation argues that the words of the Constitution have a clear meaning from the text, and that it is not appropriate to consider outside influences to interpret it, such as the drafters’ intent or changes in society.

An originalist says that the text has to be interpreted in light of the drafters’ original intent, and therefore what they said about the Constitution carries great weight in the interpretation of the Constitution.

As I understand it, Thomas is a textualist and Scalia was an originalist?

Original text has to take into account the way vocabulary changes; otherwise the phrase in the King James Bible “Suffer the little children to come unto me” would be taken to mean that Jesus advised us to use corporal punishment to raise our children. What exactly was meant by the phrase “cruel and unusual” at the time? I gather that it had a particular and specific judicial meaning, rather than just a general condemnation of gratuitous punishment. Laws and statutes can be rejected as unconstitutionally vague if they’re not worded precisely.

Right! And in fact, it wasn’t until 2008 that the court decided that the 2nd amendment meant that individuals had the right to bear arms. Up until then, the interpretation had to do with state militias. In 2008, the Scalia court decided that the writers of the constitution meant that 219 years ago but no one noticed?

That’s not so far from the courts have actually done. While you’re obviously allowed more than just muzzle loading weapons, the courts have had no problems with many limitations on what an individual may own. As examples: individuals are not permitted to own nukes, grenades, machine guns, howitzers, missiles, mines, flame throwers, etc.

One issue with interpreting it is that muzzle-loading guns were once the top of the line for both civilian and military use. So even an originalist/textualist has to ask if they intended “only muzzle-loading guns” or “anything but artillery” or something in between? The Constitution itself won’t answer that question and an originalist will then turn to an analysis of other contemporaneous documents and opinions.