Comment by phainopepla2

6 days ago

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?

16 comments

phainopepla2

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datsci_est_2015  6 days ago

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:

  - The constitution grants rights
  - The authors have a bias (WL18CWM)
  - Originalists essentially ignore this bias, leading to fewer or restricted rights to people who are less similar to WL18CWM

coldtea  6 days ago

>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.

  • rayiner  6 days ago

    > 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.

    • bryanrasmussen  6 days ago

      They were extremely good, but they were not near angelic geniuses gathered together and possessed of greater wisdom and capacity by virtue of that gathering than any people ever before or since, which is what many people who like to talk up the founding fathers would have.

      1 reply →

    • coldtea  6 days ago

      And some other country might be liking those Founding Fathers concepts' even more.

      So? Doesn't change the fact that they weren't very good with not letting class/race/gender/etc position influence their policy making.

      And that's the claim we're discussing whether they've been good at, not whether they came up with some good new concepts like "due process" and "the right to free speech".

      They had "due process" but they also had slavery.

      They had "equal rights" and voting but not for poor not land-owning plebes or women.

      They had "free speech" but also McCarthyism.

      Their constitution didn't prevent laws describing how e.g. blacks can't sleep in the same hotels or go to the same schools as whites to be applied and be considered compatible with it.

      And didn't prevent a globally huge per capita prison system, primarily targeting blacks, even today.

      8 replies →

  • datsci_est_2015  6 days ago

    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.