No. The Constitution itself recognizes the acceptability of a death penalty, and therefore it isn’t prohibited by the Constitution.
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).
The Dred Scott decision stated that
The original text of the Constitution 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.
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.
Is one a textualist and the other an origionalist? Otherwise, I have no idea where you’re going with this.
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.
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.
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.
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.
That is an awesome point. That is almost as clever as Marbury v. Madison itself.
Oh man, you’re making me blush.
Apparently today’s conservatives think that black Presidents only get 3/5 of a term.
Don’t be silly. It’s 3/4!
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?
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!
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.
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.
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.
I thought Thomas copycatted Scalia A to Z.
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.
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.
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.
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.