# 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:** 3
**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, 11:27pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/41 "2016-02-15T23:27:37Z")
> [@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. No. The Constitution itself recognizes the acceptability of a death penalty, and 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. Yes. Just as the Fourth Amendment stops a police search using infrared (Kyllo v US) and the First Amendment protects bloggers (Obsidian Finance Group, LLC v. Cox). ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [February 15, 2016, 11:30pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/42 "2016-02-15T23:30:13Z")
> [@Chronos](#): > > 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. The [_Dred Scott_ decision](https://www.law.cornell.edu/supremecourt/text/60/393) stated that > [@](#): > > 1. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States. > > 2. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. > > 3. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves. The [original text of the Constitution](http://www.archives.gov/exhibits/charters/constitution_transcript.html) refers to the concepts of being “a Citizen of the United States” and of being a citizen of one of the several states, but it nowhere defines citizenship. The original text of the Constitution does not at any point refer to “Negroes” or “Africans” or “persons of color” or any similar term. It does refer to _slaves_, consistently referring to them as “other persons”. By the _text of the Constitution_ there would have been nothing to stop some state or states from legalizing slavery for “white” people (thus classifying them as “other persons” rather than as citizens of that state). Arguably an _originalist_ interpretation of the Constitution would agree that _slaves_ were not citizens (I think you’d have to go beyond textualism to originalism, because the _text_ never even uses the word “slave”), but _Dred Scott_ goes beyond simply affirming that states have a right to maintain slavery within their own borders (and to declare that some persons who reside in that state, being property, are not therefore citizens of that state); _Dred Scott_ claimed that even emancipated descendants of slaves _could not be citizens of the United States_. Even if a state emancipated its own slaves by its ordinary legislative processes (something that had certainly been done in a number of Northern states) and then–again by that state’s own legislative processes–decided that the freedmen, or at least some of them, were citizens of that state, according to _Dred Scott_, those citizens of one of the several states _could not_ become “citizens of the United States” or enjoy the “Privileges and Immunities of Citizens” referred to in Article IV, Section 2. And that is a conclusion that is simply not to be found anywhere in the _text_ of the antebellum Constitution. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [February 15, 2016, 11:34pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/43 "2016-02-15T23:34:17Z")
> [@Chronos](#): > > 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. First off, Textualism was mostly developed in the 20th century, and is generally less than a century old. Second, I can find no real evidence to suggest that Roger Taney, assuming that’s whom you were referring to, was a Textualist in any sense. In fact, he seems to have been guided by a guiding philosophy against concentrations of power (a least, when those concentrations offended his gaze)./ Third, and most important, the _Dred Scott_ decision was one of the most activist decisions in history no matter how you slice it. Taney’s decision was not merely examining the text or the context, but _rewriting_ the text with the explicit intent of disenchranchising African-American citizens. Taney couldn’t even be called an Originalist, since he had to impose his own racial views on the past and ignore the plain evidence that African-Americans were considered citizens, and held rights as such. And then Taney went even further and tried to impose slavery on all the territories of the United States, even though this was _obiter dicta_ and even though this was also directly contrary both to the written law and the original practice of it for almost 80 years. I am not criticizing or supporting either approach here, but Dred Scott was a gruesome example of racism, a spark that helped light the Civil War, _and_ a cruelly terrible law doctrine handed down by a court bent on making law instead of interpreting it. ---
**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, 11:42pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/44 "2016-02-15T23:42:53Z")
> [@Bricker](#): > > And Sotomayor and Kagan voted together 94% of the time. Just sayin’. Is one a textualist and the other an origionalist? Otherwise, I have no idea where you’re going with this. ---
**Author:** ![drewder](https://avatars.discourse-cdn.com/v4/letter/d/57b2e6/32.png) [@drewder](https://boards.straightdope.com/u/drewder)\ **Post date:** [February 15, 2016, 11:53pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/45 "2016-02-15T23:53:58Z")
> [@CC](#): > > 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? The 3/5 clause is a very misunderstood section of the constitution. First of all it doesn’t limit a free black person in a state which grants them the vote to having their vote only count 3/5 as much as a white person’s vote. It doesn’t really address voting at all. It addresses how the number of residents a slave holding state would be counted in the census for the purpose of apportioning representatives in the house. The slave holding south wanted slaves to count as full people in order to increase the number of representatives they had in congress. The rest of the country wanted slaves counted as nothing because counting them basically allowed the south to grow in power due to slavery. If the south can claim that slaves were property yet still counted as people for the census then why couldn’t the north count livestock? It had nothing to do with determining the worth of a human being. ---
**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, 11:56pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/46 "2016-02-15T23:56:36Z")
> [@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. I don’t know why the Second Amendment, in drafts as well as the final version, found it necessary to state a reason for itself\*. I do know that it would contradict every recorded word on the subject, from the English Bill of Rights a century earlier up to at least the American Civil War, to suppose that it was considered OK to forbid people to own firearms. \*My guess, and it’s nothing more than that, is that it has the wording it does as a reaction against the clause of the Constitution giving the Federal government co-authority with the states over the militia. ---
**Author:** ![Barrett\_Bonden](https://avatars.discourse-cdn.com/v4/letter/b/5e9695/32.png) [@Barrett\_Bonden](https://boards.straightdope.com/u/Barrett_Bonden)\ **Post date:** [February 16, 2016, 12:12am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/47 "2016-02-16T00:12:53Z")
The question I had always secretly hoped to debate with Justice Scalia is how an Originalist on the Court justifies his own participation in judicial review. The Supreme Court’s practice of judicial review was established by Marbury v. Madison in 1803. It’s not in the Constitution. The framers of the Constitution discussed judicial review in relation to the Supreme Court during the Constitutional Convention but ultimately did not include it in the document, so you can’t argue they meant it to be in there. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [February 16, 2016, 12:15am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/48 "2016-02-16T00:15:58Z")
> [@CC](#): > > 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? Originalism doesn’t hold that the Constitution can’t be amended. It was. Originalists would say that the meaning of the 14th amendment should be what it was understood to mean at the time, for example. They wouldn’t say the 14th amendment doesn’t exist. In fact, an originalist would point to amendments as proof of their view. If someone wants to change the meaning of the Constitution, an originalist would say, then they should amend it. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [February 16, 2016, 12:17am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/49 "2016-02-16T00:17:46Z")
> [@Barrett\_Bonden](#): > > The question I had always secretly hoped to debate with Justice Scalia is how an Originalist on the Court justifies his own participation in judicial review. The Supreme Court’s practice of judicial review was established by Marbury v. Madison in 1803. It’s not in the Constitution. > > The framers of the Constitution discussed judicial review in relation to the Supreme Court during the Constitutional Convention but ultimately did not include it in the document, so you can’t argue they meant it to be in there. That is an awesome point. That is almost as clever as Marbury v. Madison itself. ---
**Author:** ![Barrett\_Bonden](https://avatars.discourse-cdn.com/v4/letter/b/5e9695/32.png) [@Barrett\_Bonden](https://boards.straightdope.com/u/Barrett_Bonden)\ **Post date:** [February 16, 2016, 12:20am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/50 "2016-02-16T00:20:37Z")
> [@lance\_strongarm](#): > > That is an awesome point. That is almost as clever as Marbury v. Madison itself. Oh man, you’re making me blush. ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [February 16, 2016, 12:43am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/51 "2016-02-16T00:43:48Z")
Apparently today’s conservatives think that black Presidents only get 3/5 of a term.😉 ---
**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:** [February 16, 2016, 12:45am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/52 "2016-02-16T00:45:30Z")
> [@Thing\_Fish](#): > > Apparently today’s conservatives think that black Presidents only get 3/5 of a term.😉 Don’t be silly. It’s 3/4! ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [February 16, 2016, 12:54am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/53 "2016-02-16T00:54:17Z")
> [@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. The other issue with textualism and original intent is that our Founding Fathers agreed on little. That they got what they got down on paper was through compromise, negotiation and sheer will by some of the participants. **They** were still arguing over it 20 years later. ---
**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:** [February 16, 2016, 12:58am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/54 "2016-02-16T00:58:18Z")
> [@Dangerosa](#): > > The other issue with textualism and original intent is that our Founding Fathers agreed on little. That they got what they got down on paper was through compromise, negotiation and sheer will by some of the participants. **They** were still arguing over it 20 years later. Why is that a problem? The stuff they got down on paper is what they agreed to. What the didn’t agree to didn’t get down on paper, and so doesn’t mean anything. Also, forget the Founders. The stuff that got written down is what the State Legislatures voted on. So what if Founder D thought X-Y-Z, if it wasn’t something all the states voted on? ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [February 16, 2016, 1:17am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/55 "2016-02-16T01:17:28Z")
The OP, like many liberals, doesn’t grasp that the slave owners were the ones who wanted slaves counted as persons in the census! If every slave counted as a full person, the South would have gotten more Congressmen and more power! ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [February 16, 2016, 1:24am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/56 "2016-02-16T01:24:39Z")
> [@Northern\_Piper](#): > > 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. This is incorrect according to the Wiki link cited in reply #16, which reports that the BOR was as late as the 1920s generally considered to apply only to the Federal Government. Since then the prohibition against cruel and unusual punishment has been incorporated against the states, although the prohibition against excessive fines has not. > [@Northern\_Piper](#): > > 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. Your argument rests upon falsified assumptions about the scope of the 14th amendment. Consequently you have not established that that Scalia thought _any_ of the BOR should have been applied to the states. > [@Northern\_Piper](#): > > 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. In that case incorporation does not have a leg to stand on because both the 1789-1868 text and the 1789 drafters were silent on incorporation. > [@Northern\_Piper](#): > > As I understand it, Thomas is a textualist and Scalia was an originalist? I thought Thomas copycatted Scalia A to Z. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [February 16, 2016, 1:34am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/57 "2016-02-16T01:34:23Z")
> [@astorian](#): > > The OP, like many liberals, doesn’t grasp that the slave owners were the ones who wanted slaves counted as persons in the census! If every slave counted as a full person, the South would have gotten more Congressmen and more power! Also that the three fifths rule was actually replaced with a zero fifths rule. The 14th Amendment says that if a state disenfranchises a group’s 21+ year old male members, that group does not count _at all_ when it comes time to dole out seats in the House of Representatives. If no black men get to vote, then the state doesn’t get to send representatives on behalf of the black people of the state. Obviously this was never enforced, and Jim Crow states were illegally over-represented in Congress for almost a century, but it was the law. ---
**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 16, 2016, 1:45am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/58 "2016-02-16T01:45:44Z")
> [@Xema](#): > > We still use the “tolerate” meaning of the word - for example, in “He does not suffer fools gladly.” Although it’s considered a bit stuffy and old-fashioned. My favorite mutated word is “creature”: Creature- what is created; a create-ture. animals- God’s creatures Frankenstein’s Monster- his creature Creature- thing; strange, unusual, or abnormal animal; monster. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [February 16, 2016, 2:18am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/59 "2016-02-16T02:18:38Z")
> [@John\_Mace](#): > > Why is that a problem? The stuff they got down on paper is what they agreed to. What the didn’t agree to didn’t get down on paper, and so doesn’t mean anything. > > Also, forget the Founders. The stuff that got written down is what the State Legislatures voted on. So what if Founder D thought X-Y-Z, if it wasn’t something all the states voted on? That NONE of them were happy with what they put down on paper, nor did they all agree on what they put down on paper meant. ---
**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 16, 2016, 2:26am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/60 "2016-02-16T02:26:04Z")
> [@](#): > > Quoth **astorian** : > > The OP, like many liberals, doesn’t grasp that the slave owners were the ones who wanted slaves counted as persons in the census! This statement is correct but misleading. Many, perhaps even most, liberals incorrectly think that the South wanted slaves to count as less than human, while the North wanted them to count fully. Many, perhaps most, conservatives also think that. It’s a very widespread misconception among those who didn’t pay close attention in history class, which is almost everyone, of every political alignment. I don’t know if this misconception is more common on one side of the aisle than the other, but it’s so common that it’s hardly worth bothering with that distinction. [Previous page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=2) [Next page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=4)