# 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:** 4
**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, 2:43am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/61 "2016-02-16T02:43:41Z")
> [@Dangerosa](#): > > 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. Cite? But even if true, so what? Like I said, I couldn’t give two shits about what the Founders thought. I care about what the folks who voted on the constitution thought, and all we have is what was written on the paper. If you don’t like what was written on paper, there is process to change it. It’s been used many times. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [February 16, 2016, 3:23am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/62 "2016-02-16T03:23:46Z")
> [@Lumpy](#): > > 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. You’re still ignoring the plain meaning of the phrase “well regulated” and you aren’t even good enough to admit that that phrase even exists, let alone that you need to go through serious mental hoops to equate it with “largely untrained people may amass hundreds if not thousands of semi-automatic firearms apiece with the barest hint of governmental oversight”. If it makes you feel any better, I’m not arguing gun rights here. I take no stand on the current state of Second Amendment jurisprudence in this thread. Right now, my only beef is with the people who think textualism is logically consistent and then develop a massive freaking scotoma right over those two words. “If you don’t see the fnord, it can’t eat you. Don’t see the fnord. Don’t see the fnord…” ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 16, 2016, 4:34am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/63 "2016-02-16T04:34:11Z")
> [@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. It says “cruel and unusual”, NOT or. Punishment can be cruel as fuck if it’s common, or unusual as shit if it’s not also cruel. Since the death penalty is in the constitution itself it’s hard to believe it would fit the “cruel and unusual” criteria. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [February 16, 2016, 5:26am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/64 "2016-02-16T05:26:26Z")
> [@Bone](#): > > It says “cruel and unusual”, NOT or. Punishment can be cruel as fuck if it’s common, or unusual as shit if it’s not also cruel. Since the death penalty is in the constitution itself it’s hard to believe it would fit the “cruel and unusual” criteria. Except the text says “cruel and unusual”, not “cruel and unusual in the context of latter 18th Century penal systems” or anything of the sort. That clause can be evergreen, always right up-to-date with modern penology without needing to change a jot or tittle. It is entirely reasonable for a modern society to consider the death penalty to be “cruel and unusual” and therefore to ban it on Constitutional grounds, and even the strictest textualists should have absolutely no problem with that. Originalists might have a problem with it, but anyone who claims to channel the spirit of James Madison is a bit tetched anyway, and should be politely nodded at and ignored in polite company. ---
**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, 5:47am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/65 "2016-02-16T05:47:09Z")
> [@Derleth](#): > > Except the text says “cruel and unusual”, not “cruel and unusual in the context of latter 18th Century penal systems” or anything of the sort. That clause can be evergreen, always right up-to-date with modern penology without needing to change a jot or tittle. It is entirely reasonable for a modern society to consider the death penalty to be “cruel and unusual” and therefore to ban it on Constitutional grounds, and even the strictest textualists should have absolutely no problem with that… The “strictest textualist” starts out with the assumption that the entire document is to be interpreted in the context of the meaning of the words at the time they were written. Disagree with that if you will, but don’t tell textualists what they should have no problem with when you are talking about the very foundation of their school of thought. ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [February 16, 2016, 7:16am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/66 "2016-02-16T07:16:58Z")
> [@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 amendment process? And shouldn’t everyone want an amendment process instead of hoping for 5 tyrants in black robes that agree with your point of view. Today. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [February 16, 2016, 7:50am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/67 "2016-02-16T07:50:12Z")
> [@John\_Mace](#): > > The “strictest textualist” starts out with the assumption that the entire document is to be interpreted in the context of the meaning of the words at the time they were written. Then there’s no distinction between textualism and originalism for you? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 16, 2016, 9:12am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/68 "2016-02-16T09:12:04Z")
> [@Nelson\_Pike](#): > > [QUOTE=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. [/quote] Actually, it’s right there in the opening paragraph of that wiki article: > [@](#): > > Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. **However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.** It’s also referred to throughout the rest of the article, notably in the “History” section: > [@](#): > > Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States.[2] The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers’ intent should control the Court’s interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham’s congressional testimony.[3] Although the Adamson Court declined to adopt Black’s interpretation, **the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.** [4] It’s true that the Supreme Court did not immediately adopt the principle that the due process clause of the 14th Amendment incorporated provisions of the Bill of Rights and applied them to the states, but beginning in the 1920s, that was the approach taken by the Court. By now, the Court has held that almost all of the first eight amendments in the Bill of Rights have been incorporated into the 14th Amendment and apply to the states. > [@Nelson\_Pike](#): > > [QUOTE=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. [/QUOTE] Since the incorporation doctrine arises out of the 14th Amendment, enacted in 1868, the original text of the Constitution and the intent of the original drafters is not relevant. The 14th Amendment was just that: an amendment which changed the original framework of the Constitution. The incorporation doctrine depends on the wording of the 14th Amendment, and the intent of the drafters of the 14th Amendment, as mentioned in the wiki article. ---
**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, 12:02pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/69 "2016-02-16T12:02:00Z")
> [@Lord\_Feldon](#): > > 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. Great point, and often forgotten. I had totally forgotten about that and thought at first that you were wrong. That explains why the southern states had to pretend to allow blacks to vote on paper while finding sneaky ways to keep them from voting in reality. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 16, 2016, 1:13pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/70 "2016-02-16T13:13:03Z")
> [@Derleth](#): > > It is entirely reasonable for a modern society to consider the death penalty to be “cruel and unusual” and therefore to ban it on Constitutional grounds, and even the strictest textualists should have absolutely no problem with that. > > Originalists might have a problem with it, but anyone who claims to channel the spirit of James Madison is a bit tetched anyway, and should be politely nodded at and ignored in polite company. Textualists would have an equal problem with the idea that the Constitution bans the death penalty, because the Constitution explictly does not ban it. Textualists say that the Constitution says what it says, and as **Bricker** has mentioned twice, it cannot be the case that the Constitution forbids what it allows at one and the same moment. It could be entirely reasonable that a modern society would decide that the DP is “cruel and unusual” and thereby ban it, but this cannot be done on Constitutional grounds unless the Constitution is amended. And[it does not seem to me that the US has decided that the death penalty is cruel and unusual](http://www.gallup.com/poll/186218/solid-majority-continue-support-death-penalty.aspx). Regards, Shodan ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [February 16, 2016, 1:16pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/71 "2016-02-16T13:16:55Z")
> [@Shodan](#): > > Textualists would have an equal problem with the idea that the Constitution bans the death penalty, because the Constitution explictly does not ban it. > > Textualists say that the Constitution says what it says, and as **Bricker** has mentioned twice, it cannot be the case that the Constitution forbids what it allows at one and the same moment. > > It could be entirely reasonable that a modern society would decide that the DP is “cruel and unusual” and thereby ban it, but this cannot be done on Constitutional grounds unless the Constitution is amended. > > And[it does not seem to me that the US has decided that the death penalty is cruel and unusual](http://www.gallup.com/poll/186218/solid-majority-continue-support-death-penalty.aspx). > > Regards, > Shodan The Constitution bans “cruel and unusual punishment”. If the death penalty is cruel and unusual, then it’s definitely banned. If it’s not cruel and unusual, then it’s not. Words like “cruel and unusual” require interpretation – even if they’re applied “literally”. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 16, 2016, 1:37pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/72 "2016-02-16T13:37:39Z")
> [@iiandyiiii](#): > > The Constitution bans “cruel and unusual punishment”. If the death penalty is cruel and unusual, then it’s definitely banned. If it’s not cruel and unusual, then it’s not. Words like “cruel and unusual” require interpretation – even if they’re applied “literally”. It’s the other way around - the death penalty is definitely not banned, therefore it is not “cruel and unusual”. “Interpreting” the Constitution so that it contradicts itself is not a valid legal approach to jurisprudence, as **Bricker** mentions. Regards, Shodan ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 16, 2016, 2:10pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/73 "2016-02-16T14:10:08Z")
> [@Derleth](#): > > Except the text says “cruel and unusual”, not “cruel and unusual in the context of latter 18th Century penal systems” or anything of the sort. That clause can be evergreen, always right up-to-date with modern penology without needing to change a jot or tittle. It is entirely reasonable for a modern society to consider the death penalty to be “cruel and unusual” and therefore to ban it on Constitutional grounds, and even the strictest textualists should have absolutely no problem with that. > > Originalists might have a problem with it, but anyone who claims to channel the spirit of James Madison is a bit tetched anyway, and should be politely nodded at and ignored in polite company. That’s wonderful and all, but I think you missed where \*\*OldGuy \*\*in post #10 made a factual error and misquoted the phrasing of the amendment itself. That’s the part I was correcting. Regardless if you’re a textualist, originalist, or whatever, it’d be nice to get the actual words of the constitution correct. ---
**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, 2:12pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/74 "2016-02-16T14:12:59Z")
> [@Shodan](#): > > It’s the other way around - the death penalty is definitely not banned, therefore it is not “cruel and unusual”. Huh? No specific punishment is banned in the Constitution. Does that mean the Constitution doesn’t ban “cruel and unusual punishment” of any kind? The cruel and unusual punishment clause is an obvious invitation by the authors to interpret what it means. It can’t possibly be enforced without lots and lots of interpretation. It clearly left the decision up to the reader. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 16, 2016, 2:48pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/75 "2016-02-16T14:48:04Z")
> [@lance\_strongarm](#): > > Huh? > > No specific punishment is banned in the Constitution. Does that mean the Constitution doesn’t ban “cruel and unusual punishment” of any kind? The Constitution bans cruel and unusual punishment, but it allows the death penalty. If the death penalty were cruel and unusual punishment, the Constitution would not have allowed it. > [@](#): > > The cruel and unusual punishment clause is an obvious invitation by the authors to interpret what it means. It can’t possibly be enforced without lots and lots of interpretation. It clearly left the decision up to the reader. As long as the reader notices that the Constitution allows the DP, and therefore did not consider it cruel and unusual and therefore did not consider it to be in violation of the Eighth Amendment. You might want to look up what [in pari materia](http://legal-dictionary.thefreedictionary.com/In+pari+materia) means, because it is a principle of textualism and originalism. It is perfectly possible for a society to decide that the DP is cruel and unusual, and therefore ban it. But the Constitution does not forbid the DP, so you can’t outlaw the DP on Constitutional grounds. Because interpretation != contradiction. Regards, Shodan ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 16, 2016, 2:48pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/76 "2016-02-16T14:48:10Z")
> [@Bricker](#): > > No, because the Constitution specifically contemplates the death penalty as acceptable. The fact that some forms of the death penalty are constitutional does not make every form of the death penalty constitutional. Which raises the issue of whether you interpret cruel and unusual trying to decide what some of the people from that time thought, or do you use the words as they are defined. That’s the real, harder issue. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 16, 2016, 2:54pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/77 "2016-02-16T14:54:31Z")
Exactly. The 8th Amendment is not linked to the due process clause, which I gather **Bricker** and **Shodan** are referring to. The 8th is a standalone and means that some punishments are unconstitutional even if due process has been followed. For instance, what about crucifixion? Or a sentence of death to be inflicted by the relatives of the victim, as they see fit? It’s not an answer to say that the Constitution contemplated the death penalty. Some forms of the death penalty will be cruel and unusual; that’s where the 8th comes into play. ---
**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, 3:23pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/78 "2016-02-16T15:23:36Z")
> [@Derleth](#): > > Then there’s no distinction between textualism and originalism for you? “Originalism” can mean taking the “original intent” of the Founders, not just the original meaning of the text. A textualist will usually admit that it’s not possible to know what the intent was, and so they look strictly to the text to determine the meaning. But these terms, along with “strict construction” are used so interchangeably these days that a textualist is hard put to distinguish between them. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2016, 3:30pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/79 "2016-02-16T15:30:44Z")
> [@Hamlet](#): > > The fact that some forms of the death penalty are constitutional does not make every form of the death penalty constitutional. Which raises the issue of whether you interpret cruel and unusual trying to decide what some of the people from that time thought, or do you use the words as they are defined. That’s the real, harder issue. Very true. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 16, 2016, 3:35pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/80 "2016-02-16T15:35:06Z")
The death penalty will probably die at the hands of the Equal Protection Clause rather than the Eighth Amendment. Even in 2016, we still love to kill black men who murder white people much more than anyone else. And, for the most part, only the poor ones. I expect a Court in the next decade will overrule [McCleskey v. Kemp](https://en.wikipedia.org/wiki/McCleskey_v._Kemp), and that will probably be the end of it. [Previous page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=3) [Next page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=5)