# 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:** 14\ **Page:** 6
**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 17, 2016, 10:39am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/101 "2016-02-17T10:39:09Z")
> [@Captain\_Amazing](#): > > I have my own originalist question, and it applies to segregated schools. Pretty much everybody today, originalist and non-originalist alike, agrees that Brown vs Board of Ed was rightly decided, and that segregated schools violate the 14th amendment. The 14th amendment was passed by the 39th Congress in 1866, and then ratified by the states not too long after. If I’m correct, and I think I am, the 39th Congress also passed the law setting up public schools in Washington, DC, and, of course, those schools were racially segregated. If the same Congress that passes the 14th amendment also sets up segregated schools, that suggests that they don’t consider segregated schools to violate the 14th amendment. Nice point - just to add a detail, since DC is not a state, the 14th amendment didn’t apply. DC schools were desegregated BEFORE Brown, in a different case that didn’t rely on the 14th amendment. > **[Bolling v. Sharpe](https://en.wikipedia.org/wiki/Bolling_v._Sharpe)** > > Bolling v. Sharpe, 347 U.S. 497 (1954), is a landmark United States Supreme Court case in which the Court held that the Constitution prohibits segregated public schools in the District of Columbia. Originally argued on December 10–11, 1952, a year before Brown v. Board of Education, Bolling was reargued on December 8–9, 1953, and was unanimously decided on May 17, 1954, the same day as Brown. The Bolling decision was supplemented in 1955 with the second Brown opinion, which ordered desegregatio... ---
**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 17, 2016, 11:59am UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/102 "2016-02-17T11:59:06Z")
> [@Shodan](#): > > 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 Okay, but this doesn’t allow any/all forms of the death penalty, and if, for example, drawing and quartering is “cruel and unusual”, then it is banned; if lethal injection is “cruel and unusual”, then it is banned; if a firing squad is “cruel and unusual”, then it is banned; etc. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 17, 2016, 1:18pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/103 "2016-02-17T13:18:11Z")
> [@iiandyiiii](#): > > Okay, but this doesn’t allow any/all forms of the death penalty, and if, for example, drawing and quartering is “cruel and unusual”, then it is banned; if lethal injection is “cruel and unusual”, then it is banned; if a firing squad is “cruel and unusual”, then it is banned; etc. Yes, certainly. And an originalist would say the same. Indeed, AFAICT that was much of the original intent behind the “cruel and unusual” clause. The Founding Fathers intended to outlaw cruel forms of the DP - no drawing and quartering, no burning at the stake, etc. Forms of the DP that aren’t cruel, like hanging, would not be cruel, and that would set the bar in terms of what could be outlawed as forms of the DP. The idea that is wrong is that the death penalty is cruel and unusual in itself and therefore un-Constitutional. That would be interpreting the Constitution so as to make it contradict itself, which is an incoherent argument. If the Constitution contradicts itself, it needs to be amended. Which is a power to be exerted by the states or the people, as the Tenth Amendment states. Not the federal government, including the Supreme Court. If one wants to argue that lethal injection or whatever is more cruel than hanging, one can try, and if the argument prevails, in theory lethal injection could be outlawed as a method of the DP. This, however, would do nothing to establish that the DP is itself cruel and unusual or un-Constitutional. The Constitution also outlaws excessive fines. The Court could find that some amount of fines is excessive, and that amount would be un-Constitutional. But fines themselves are not. IYSWIM. Regards, Shodan ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 17, 2016, 1:29pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/104 "2016-02-17T13:29:41Z")
I’ve always been more of a textualist than an originalist. I agree with “living constitutionalists” that in some ways, as society changes, the meaning of the Constitution changes. The “cruel and unusual” clause is a great example. But very little of the Constitution is like that. “The Congress shall pass no law” still means exactly what it said when written. THe Constitution is law, so it can’t just magically change with the times if a very clear clause is no longer convenient. If the 3/5ths rule was still valid, then that’s what we would be living under today. We can’t just make a collective unconscious decision to change our laws without actually writing it down. Which is why amendments are passed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2016, 1:39pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/105 "2016-02-17T13:39:14Z")
> [@Shodan](#): > > The idea that is wrong is that the death penalty is cruel and unusual in itself and therefore un-Constitutional. That would be interpreting the Constitution so as to make it contradict itself, which is an incoherent argument. If the Constitution contradicts itself, it needs to be amended. Which is a power to be exerted by the states or the people, as the Tenth Amendment states. Not the federal government, including the Supreme Court. I agree. But just to be clear: the Constitution does not MANDATE the death penalty. We can eliminate it legislatively without amending. And we should. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 17, 2016, 1:43pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/106 "2016-02-17T13:43:16Z")
Yes, we could, but “we” doesn’t mean the Supreme Court. Because the death penalty is Constitutional. And no we shouldn’t. (A gratuitous assertion may be gratuitously denied). Regards, Shodan ---
**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 17, 2016, 3:14pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/107 "2016-02-17T15:14:45Z")
> [@lance\_strongarm](#): > > Nice point Why is that a “nice point”? What does legislation about DC schools have to do with the text of the 14th amendment? We are talking textualists here, not originalists. And remember: the 14th amendment was approved by the required number of state legislatures, none of which had any input into DC public school policy. If you’re going to delve into original intent, what about the intent of all those state legislators who did NOT favor segregation or who were from states where segregated schools were never codified into law? This is one of the problems with original intent-- there are so many people involved it’s almost impossible to know what their collective internet was. But we know exactly what was written down on paper. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2016, 4:58pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/108 "2016-02-17T16:58:16Z")
> [@Shodan](#): > > (A gratuitous assertion may be gratuitously denied). Conceded. That was a gratuitous assertion. I have supported it more fully elsewhere, however. ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [February 17, 2016, 5:27pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/109 "2016-02-17T17:27:01Z")
On the Brown v Board issue, I think even originalists and textualists have to admit that if a founding father had declared martial law and confiscated all firearms, he’d be in violation of the Constitution, no matter what role he played in writing it himself. No reasonable court would give him a free pass just because he helped write the Constitution. So I think even an originalist can say something like this: While the original writers thought segregated schools could be compatible with the 14th amendment, and while previous courts ruled for equivalent-but-separate facilities, we now have evidence that segregation is harmful in and of itself. With our new information, we have to conclude that equal protection and segregation are incompatible. Segregation is a legislative issue, while equal rights is a Constitutional issue, so equal rights has to win out. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2016, 5:34pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/110 "2016-02-17T17:34:17Z")
> [@dracoi](#): > > On the Brown v Board issue, I think even originalists and textualists have to admit that if a founding father had declared martial law and confiscated all firearms, he’d be in violation of the Constitution, no matter what role he played in writing it himself. No reasonable court would give him a free pass just because he helped write the Constitution. > > So I think even an originalist can say something like this: While the original writers thought segregated schools could be compatible with the 14th amendment, and while previous courts ruled for equivalent-but-separate facilities, we now have evidence that segregation is harmful in and of itself. With our new information, we have to conclude that equal protection and segregation are incompatible. Segregation is a legislative issue, while equal rights is a Constitutional issue, so equal rights has to win out. That’s a good point. After all, the Court confronted the issue of equality in Plessy v. Ferguson, and ruled that the Constitution required equality, not mixing – the infamous “separate but equal” doctrine you mention. Brown rested on the judicial notice that segregation was not, in fact, creating equal facilities and access, as well as the legal requirement for equality. ---
**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 17, 2016, 5:53pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/111 "2016-02-17T17:53:54Z")
> [@dracoi](#): > > So I think even an originalist can say something like this: While the original writers thought segregated schools could be compatible with the 14th amendment, and while previous courts ruled for equivalent-but-separate facilities, we now have evidence that segregation is harmful in and of itself. With our new information, we have to conclude that equal protection and segregation are incompatible. Segregation is a legislative issue, while equal rights is a Constitutional issue, so equal rights has to win out. I don’t think an originalist would make that argument. An originalist would argue that the constitution should be amended to reflect this new information. However, a textualist doesn’t have this problem since Separate but Equal is not enshrined in the constitution-- it was a SCOTUS precedent that can be overturned by another SCOTUS ruling. ---
**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 17, 2016, 6:01pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/112 "2016-02-17T18:01:28Z")
> [@John\_Mace](#): > > However, a textualist doesn’t have this problem since Separate but Equal is not enshrined in the constitution-- it was a SCOTUS precedent that can be overturned by another SCOTUS ruling. Nitpick – reversed, not overturned. Only a higher court can overturn a ruling, and it is manifestly impossible for SCOTUS to be higher than itself. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [February 17, 2016, 6:09pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/113 "2016-02-17T18:09:23Z")
> [@dracoi](#): > > 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. Nitpick, “grenades, machine guns, howitzers” are legal but taxed at the federal level and flame throwers are un-regulated for civilian ownership. But the but the “only if they had it back in the day” argument has always been false, does the freedom of religion not extend to Mormons, does the freedom of speech not apply to anything but stuff printed on dead trees by set type? ---
**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 17, 2016, 6:34pm UTC](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218/114 "2016-02-17T18:34:52Z")
> [@Flyer](#): > > Nitpick – reversed, not overturned. Only a higher court can overturn a ruling, and it is manifestly impossible for SCOTUS to be higher than itself. OK. Sideturned then. 😃 [Previous page](https://boards.straightdope.com/t/how-do-originalists-get-around-the-3-5-rule-and-etc/746218.md?page=5)