Comment by datsci_est_2015
6 days ago
My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
You misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists.
By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM:
>If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible?
An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is.
And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
> Just that those making the constitution weren't that good at it.
They were exceedingly good at it. In my country’s constitution we have all sorts of things from the american constitution, like due process, because we literally have no indigenous words for these concepts.
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Also there’s the difference between intention and interpretation. The authors may have been extremely well-intentioned with regards to the fairness of their laws by writing broadly, but interpreting their writing narrowly robs the authors of their intentions. Ironically, originalists may be less fair than the original authors.
A reasonable initial place to draw the line might be "owns slaves".
Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.
We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?
Well, the same white men created Jim Crow and seggregation.
If you were a black man would you have been disenfranchised when those laws were in force?
I'd say yes.
The fact that it was/is worse elsewhere, e.g. in some places in Asia, doesn't make the critique (of how white Constitutional/law makers historically disenfranchised certain demographics in the US) invalid.
> you were a black man would you have been disenfranchised when those laws were in force?
In a counter-factual world where the founders hadn’t exported their ideas all over the world, I’d be disenfranchised in my own home country! Because everyone was disenfranchised. Everyone was a serf.
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Those rights came to exist in the west in response to kings and tyrants doing whatever they wanted at the expense of their subjects. Also because communities sometimes do bad things to people not able to simply drive away. Pretty sure Asia has had it's share of human rights abuses.
You seem to lack an understanding of technical legal terms in US courts, which is frankly pretty usual even for US citizens.
"Franchise" is the right to vote. Disenfranchisement is legal prohibition against voting. Social behaviors have nothing to do with it.
"Jus soli" is a legal term in English, defined by the chief authority (Black's Dictionary of Legal Terms) as rights achieved by one's place of birth (instead of by one's parentage).
Diplomats are only partially subject to civil law as you have claimed. There is also no practical leverage available to the courts if their funds are not stored in places subject to US jurisdiction. So, a minor backing for your claim, but one that is not in practice applied, nor considered relevant by precedent in regards to the XIVth.
I'm sorry you're being attacked so vociferously in this thread, as you are arguing in good faith with the knowledge you have, but your knowledge base is insufficient for the confidence you show.
No, and politely, wtf is that logic?
You are disenfranchised when your judicial branch interprets law in a way that disproportionately benefits only the people who are most similar to the authors.
Also, how wealthy are you? Why did you bring up your race instead of how much land you own? Why pull the culture war into this? Certain interpretations of the constitution disproportionately benefit people who own a lot of land.
You brought up race. I’m just responding.
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You don't have to be a constitutional scholar to see it's bullshit.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
"absent a constitutional amendment"