# How do originalists get around the 3/5 rule, and etc.? **URL:** \ **Category:** Great Debates\ **Created:** [February 15, 2016, 6:06pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218 "2016-02-15T18:06:31Z")\ **Posts on this page:** 20\ **Page:** 2
**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:** [February 15, 2016, 8:18pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/21 "2016-02-15T20:18:58Z")
> [@CC](#): > > 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? More like, in 2008 the court decided that “The Embarrassing Second Amendment” couldn’t be ignored any longer. Frankly it shouldn’t have taken this long. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [February 15, 2016, 8:26pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/22 "2016-02-15T20:26:04Z")
nm ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [February 15, 2016, 8:35pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/23 "2016-02-15T20:35:19Z")
> [@Bricker](#): > > Exactly. > > 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. Textualism is a myth. The people who eancted the Eighth Amendment didn’t think that the death penalty was ‘cruel and unusual,’ therefore it isn’t prohibited by the constitution. However, the people who enacted the Second Amendment didn’t imagine automatic weapons, for example, but the same textualist will insist that what ‘arms’ means is relative to modern society, and doesn’t specifically apply to what was available at the time. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [February 15, 2016, 8:37pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/24 "2016-02-15T20:37:48Z")
> [@Lumpy](#): > > … 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. We still use the “tolerate” meaning of the word - for example, in “He does not suffer fools gladly.” ---
**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:** [February 15, 2016, 8:41pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/25 "2016-02-15T20:41:26Z")
> [@Eonwe](#): > > Textualism is a myth. > > The people who eancted the Eighth Amendment didn’t think that the death penalty was ‘cruel and unusual,’ therefore it isn’t prohibited by the constitution. > > However, the people who enacted the Second Amendment didn’t imagine automatic weapons, for example, but the same textualist will insist that what ‘arms’ means is relative to modern society, and doesn’t specifically apply to what was available at the time. Does “the Press” mean an actual single-sheet screw press? ---
**Author:** ![muldoonthief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldoonthief/32/3188_2.png) [@muldoonthief](https://boards.straightdope.com/u/muldoonthief)\ **Post date:** [February 15, 2016, 8:51pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/26 "2016-02-15T20:51:00Z")
> [@Eonwe](#): > > Textualism is a myth. > > The people who eancted the Eighth Amendment didn’t think that the death penalty was ‘cruel and unusual,’ therefore it isn’t prohibited by the constitution. > > However, the people who enacted the Second Amendment didn’t imagine automatic weapons, for example, but the same textualist will insist that what ‘arms’ means is relative to modern society, and doesn’t specifically apply to what was available at the time. And of course freedom “of the press” only applies to the printed word - radio, television, internet can all be censored by the government. ETA: I swear Lumpy’s post wasn’t there when I started this. ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [February 15, 2016, 8:59pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/27 "2016-02-15T20:59:13Z")
> [@Lumpy](#): > > Does “the Press” mean an actual single-sheet screw press? Nope. But what exactly constitutes ‘the press’ or ‘peacable assembly’ and what doesn’t is certainly up for debate. But I’m not posting in this thread to make or defend positions on the second amendment as it relates to modern weaponry. My point is merely that ‘_a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed_’ and ‘_excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted_’ are often interpreted by self-described textualists in very different ways, in order to support whatever general feeling they have to begin with about what the law should be today. ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [February 15, 2016, 9:08pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/28 "2016-02-15T21:08:31Z")
> [@Eonwe](#): > > Textualism is a myth. > > The people who eancted the Eighth Amendment didn’t think that the death penalty was ‘cruel and unusual,’ therefore it isn’t prohibited by the constitution. > > However, the people who enacted the Second Amendment didn’t imagine automatic weapons, for example, but the same textualist will insist that what ‘arms’ means is relative to modern society, and doesn’t specifically apply to what was available at the time. A textualist \*might \*come to that opinion, but you’re putting words in their mouths and misconstruing how they would come to that conclusion. As I said in my post, a muzzle loading rifle was the best weapon available in its day. There are quotes that suggest the founding fathers actually intended for a civilian militia to be the nation’s only military defense. For example: “Nor is it conceived needful or safe that a standing army should be kept up in time of peace for [defense against invasion].” --Thomas Jefferson: 1st Annual Message, 1801. ME 3:334 If Jefferson intended civilian militias to beat invading foreign armies, then surely he intended their weapons to keep pace with the technology of the day. In other letters, he compared it to Romans and Greeks, so he certainly saw the civilian militia as a force that adapts to the weapons and tactics of the times. Of course, Jefferson’s is just one contemporaneous opinion, and Jefferson is notorious for contradicting himself. The bottom line is that a textualist would not just look at what’s practical for the modern times as you suggest, but would look at a variety of contemporaneous opinions to clarify whether the original intent of the writers was limited to muzzle-loading guns or whether it was intended as an unlimited right to military grade weapons, or something in between. On this issue in particular, I think even two textualists could come to opposing viewpoints. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [February 15, 2016, 9:12pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/29 "2016-02-15T21:12:25Z")
> [@Eonwe](#): > > ‘_a well regulated Militia_’ Careful with that text, Eugene. You know as well as I do that some clauses are passed over silently in the textualist universe, being meaningless and without interpretation, and that that clause is the most silent of all of them. The Framers could never possibly have mean what they said there, in whole or in part, and therefore it must be interpreted specially, by which I mean into a nullity. Thus we see that there is no possible logical contradiction here, just textualism being used as it always is. ---
**Author:** ![standingwave](https://avatars.discourse-cdn.com/v4/letter/s/9de0a6/32.png) [@standingwave](https://boards.straightdope.com/u/standingwave)\ **Post date:** [February 15, 2016, 9:49pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/30 "2016-02-15T21:49:24Z")
> [@Northern\_Piper](#): > > As I understand it, Thomas is a textualist and Scalia was an originalist? Given that they voted together 91% of the time, I’m assuming it’s a fine distinction. ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [February 15, 2016, 10:21pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/31 "2016-02-15T22:21:18Z")
> [@Derleth](#): > > Careful with that text, Eugene. You know as well as I do that some clauses are passed over silently in the textualist universe, being meaningless and without interpretation, and that that clause is the most silent of all of them. The Framers could never possibly have mean what they said there, in whole or in part, and therefore it must be interpreted specially, by which I mean into a nullity. > > Thus we see that there is no possible logical contradiction here, just textualism being used as it always is. An originalist recognizes that the First Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right. An originalist recognizes that the Fourth Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right. An originalist ALSO recognizes that the Second Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right. And furthermore, an originalist recognizes that the term _militia_ is not defined in the Constitution, but IS defined in current law–Title 10 USC 311: (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. In other words, at a rough guess, there are 60-65 million members of the militia. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2016, 10:27pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/32 "2016-02-15T22:27:45Z")
> [@OldGuy](#): > > 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. No, because the Constitution specifically contemplates the death penalty as acceptable. The textualist reads language _in pari materia_. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 15, 2016, 10:37pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/33 "2016-02-15T22:37:08Z")
> [@](#): > > Quoth **mbh** : > > They would also say that the Dred Scott decision was a prime example of the Living Constitution in action. And they would be wrong. The Dred Scott decision was written by a textualist, who was personally an abolitionist but who refused to take part in judicial activism. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [February 15, 2016, 10:46pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/34 "2016-02-15T22:46:17Z")
> [@Flyer](#): > > An originalist ALSO recognizes that the Second Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right. I note you completely ignored (uh… _interpreted_) the text I actually quoted. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [February 15, 2016, 10:59pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/35 "2016-02-15T22:59:29Z")
The death penalty is undeniably cruel and has become unusual. So it is banned by the 8th Amendment. More to the point, it is unfairly administered and therefore violates the equal protection clause. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [February 15, 2016, 11:03pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/36 "2016-02-15T23:03:32Z")
This is probably better suited to Great Debates than GQ. Colibri General Questions Moderator ---
**Author:** ![typoink](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@typoink](https://boards.straightdope.com/u/typoink)\ **Post date:** [February 15, 2016, 11:04pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/37 "2016-02-15T23:04:13Z")
> [@friedo](#): > > 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. Yeah, it’s always fun to point out to people who mention the “3/5 of a person” thing that the evil slavers were the ones who wanted slaves counted as whole people. The folks who opposed slavery were the ones who would have said they didn’t count as people at all. It’s kind of fascinating to me how rarely people are aware of this. A more accurate but less memorable version would be that slavers felt like they should personally count for an extra .6 people for every human they owned. Own five slaves? Congratulations, you get the voting power of four people! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2016, 11:09pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/38 "2016-02-15T23:09:53Z")
> [@Marvin\_the\_Martian](#): > > 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? No. Textualists read language _in pari materia_. The Constitution explicitly accepts the death penalty as a permissible penalty. It is explicitly constitutional. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2016, 11:12pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/39 "2016-02-15T23:12:20Z")
> [@standingwave](#): > > Given that they voted together 91% of the time, I’m assuming it’s a fine distinction. And Sotomayor and Kagan voted together 94% of the time. Just sayin’. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2016, 11:19pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/40 "2016-02-15T23:19:07Z")
> [@Hari\_Seldon](#): > > The death penalty is undeniably cruel and has become unusual. So it is banned by the 8th Amendment. Nope. Because the penalty is explicitly contemplated in the Constitution. > [@](#): > > More to the point, it is unfairly administered and therefore violates the equal protection clause. Here, you may be on to something. It is absolutely true that it is unfairly administered. And not just generically “unfairly,” but unfairly with respect to race. This is a path worth pursuing. [Previous page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=1) [Next page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=3)