Uhm, no. All I’m saying is that I’ve heard two narratives: the one you present, and the one I described in that post. I don’t know which is correct. Convince us that yours is.
I can believe that some of them were after glory and security. And I know that it is difficult to see beyond the frame of reference in which one has been endoctrinated. Maybe for a time privileges crossed racial boundaries and property rights boundaries.
But don’t you dare pretend in any way that the framers were “radically egalitarian.” They thought they were. They intended to be. And in their own frame of reference, they came close. But that was far removed from reality.
Those “radically egalitarian” framers did not consider the large majority of the population to be part of "We the people…’ Bless them for their courage, but they were blind.
I don’t have an electronic cite.
But if you want to go to the library, you can read Akhil R. Amar, America’s Constitution: A Biography 11-35 (2005).
Many of my claims are provable simply by looking at the Constitution. There is no property qualification. There is the anti-nobility clause. There is the age qualification.
I’m sure a little googling will turn up the facts about voting qualifications for the ratifying conventions.
But Zoe, what is a fair definition of radically egalitarian?
I would think taking actions that were the most egalitarian political actions in the history of humanity would qualify.
If today you were run a race faster than any race has been run, could we not rightly call you exceptionally fast, without waiting two hundred years to see if someone runs faster? And can we not look back and say you were exceptionally fast?
How does a slaveholder speak of the sacredness of liberty without his tongue catching fire?
The same way I can abhor slave and child labor but buy cheap imports.
Yes, I’m familiar with that book. But keep in mind how powerful the states were in those days. They didn’t need property qualifications in the US Constitution, because they were in the state constitutions and laws. It was (and is) the states that control the elections, not the federal government.
Yes, some of the Founders (like Franklin) were pretty egalitarian, especially for the times. But the system that was actually put in place (by the Founders, as a group) was not. It became so over time, but after many of “the Founders” were dead.
Ok. Then why can’t you say it’s the Fifth and Fourteenth Amendments that forbid torture? Why does it have to specifically be the Eighth Amendment?
Well, sure, both might be described as hypocrisy, I suppose. The Geico Gecko and Godzilla might both be described as lizards.
Ahem.
OK. Then, all other routes having failed, let me make an appeal to practicality:
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It’s not just Scalia’s crazy idea. Every single Supreme Court case that has dealt with the Eighth Amendment has reserved it only for convicted criminals.
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The Supreme Court has already interpreted the Fifth and Fourteenth Amendments as providing even broader protections against mistreatment to pre-trial arrestees. In other words, stuff you can do to convicts CAN be punitive under the Eighth (not cruel, but punishment; on the other hand you can’t punish a person at all if he’s not convicted).
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What’s the harm in buying into this approach, even conditionally? “I personally think they ought to use the Eighth, but I recognize that they’re using the Fifth and Fourteenth for the same purpose.”
PS – I apologize for my earlier suggestion that you were arguing dishonestly. Your having laid out your thought process has made it very clear to me.
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Well, yeah. That is the clear literal meaning. Which is what I said. I further aver, attest, and state that such meaning also, as well, and in addition, underlines the Founder’s abhorrance of cruelty. Best I can do, pal.
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OK-doke.
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None. Said so. See above. But anyone who buys that argument must forever be forbidden from using the construct “Well, the Constitution doesn’t say anything about voting rights for gay whales”.
PS - Por nada. It never happened.
Let me suggest one way that one can buy that argument and still screw the gay whales.
So to speak.
You can desire to use only the text and the plain meaning of that text to interpret the Constitution, and still recognize that mountains of case law has been built on earlier decisions that used more free-flowing methods. You might say, “If I go about overturning all those decisions, I’ll leave a huge mess behind. And since one purpose of the law is to promote predictability and reliance, it’s better to accept the entrenched case law of the past, even though it was built originally on shaky ground, and simply vow to stop repeating the mistake.”
So we’d preserve the current state of the law regarding the reach and breadth of the Fifth and Fourteenth Amendments, but the gay whale crowd would be on their own.
(Somewhere, Harvey Fierstein weeps in solitude).
Could elucidator get why, in practice, the 8th doesn’t apply, but disagree that a strict textualist interpretation gets there?
Probably not. I don’t even get that sentence. No, seriously, I don’t get it.
Which is an elegant way of illustrating why strict textualist interpretation as a judicial philosophy is poppycock.
ETA: oh, not that the opposite end of the spectrum, that the Constitution is a warm and fuzzy interpret as you see fit document isn’t a bit of balderdash as well…
It’s kind of like the difference between a rabid Ayn Rand libertarian, someone who favors free markets as well as a social safety net, and a sophmoric Marxist – two poppycockian ends of a spectrum with a lot of middle ground.
Well, it used to be poppycock, but now that we have all the rights we need, it is no longer. It is a bulwark against the liberal activist judges.
Actually, we do. Let’s talk about what a compass does. It points in a single clear direction, thus providing you with a guide for navigation. Thus, any reasonably good moral compass would point AWAY from torture, and would consistently do so, because only the seriously insane would think it was a good thing … people like Dick Cheney. For ALMOST everyone, state-sanctioned torture is a clear and easy bad thing. The moral compass works there, you see.
It doesn’t work on issues like abortion, because it points in two different directions. On the one hand, there are people whose moral compass says abortion is bad because it consists of destroying potential human lives. On the other hand, there are people who say that abortion is good because it gives women a choice, and forcing women to bear children against their will is an extremely cruel thing to do.
There are no easy answers here, it’s NOTHING like torture. The needle swings all over the place, indefinite in direction.
So, yeah, use your moral compass, but only on issues where its direction is clear and obvious. It’s a limited tool, but it DOES offer the advantage of preventing offenses against basic human dignity and simple common sense, sometimes.
And yet you offer no evidence of said Founder’s* abhorrence, ignoring much evidence to the contrary. There is no evidence that the Framers* abhorred cruelty any more than their contemporaries in Britain and elsewhere. They were men of their times, bothered enough about slavery to “worry” about it, but not bothered enough to free their own slaves. (Perhaps some did, but I can’t see that most who owned slaves did.) What they seem to have abhorred most was being ruled over by a King across the ocean.
While we’re at it: that story about Washington and the cherry tree isn’t true either.
*easily confused with the Framers, as I also did, above. But let’s be clear about this-- it’s the Framers and the Ratifiers who count. That group includes the men at the Constitutional Convention and all the state legislators (white men of property, all).
This is true of voting, to be sure, but not true of the qualifications for candidacy. The framers debated putting in property qualifications for the Congress and rejected the proposal. They didn’t reject it because it was redundant, or in the purview of the states, or some such. They rejected it because it was inconsistent with the rest of the principles they were putting into the Constitution.
It was more egalitarian than any other system in human history. It was more egalitarian than even the most egalitarian states at the time.
Your argument is exactly the same as saying the framers were morally bankrupt because they owned slaves. That’s fine, if you’re willing to make that judgment completely anachronistically. But its wrong if your intention is to calibrate it to history.