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▲ datsci_est_2015 2 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.

▲phainopepla2 2 days ago | parent | next [-]

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?

▲datsci_est_2015 2 days ago | parent | next [-]

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 2 days ago | parent | prev | next [-]

>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 2 days ago | parent | next [-]

> 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 2 days ago | parent | next [-]

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.

▲rayiner a day ago | parent [-]

They wrote the most influential constitution in the world which has governed the longest-lived extant republic. Most who claim to be smarter have offered mere ideas, never implemented in a real country. Such academic notions often self-destruct when confronted with reality. (I’m reminded of Ashraf Ghani, the professor who “wrote the book” on “Fixing Failed States.” When he was elected President of Afghanistan to actually put his ideas into practice, it was a disaster and resulted in the Taliban reconquering the country. Ideas without implementation are worth nothing.)

▲coldtea 2 days ago | parent | prev [-]

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.

▲rayiner 2 days ago | parent [-]

[flagged]

▲triceratops a day ago | parent | next [-]

> Such mass fratricide for the sake of non-kin was completely unprecedented in history. Africans never did that. Middle Easterners never did that. Asians never did that.

That also means that only in America brother fought against brother to preserve slavery. Not something to brag about.

Most of these other countries were able to abolish slavery* without having half their population preferring fratricide over freeing their slaves.

Even in the New World other states just abolished slavery with far less bloodshed. Example A: https://en.wikipedia.org/wiki/Abolitionism_in_Brazil

> One where (mostly British) Americans killed hundreds of thousands of their own cousins to free enslaved people belonging an entirely different ethnic group

A quote from The Great Emancipator's inaugural address: "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." [1]

Abolition wasn't the war aim at the outset. Preserving the Union was Lincoln's goal. He did everything he could to prevent the slave states from seceding.

Abolition became a goal halfway through the war.

"The abolition of slavery became a Union war goal on January 1, 1863, when Lincoln issued the Emancipation Proclamation, which declared all slaves in rebel states to be free". [2]

Which makes sense. If half your countrymen are driven to take up arms against the other half just to keep some people in bondage, you may as well end that evil institution. Otherwise they're bound to try again.

*With varying degrees of success in the actual implementation.

1. https://en.wikipedia.org/wiki/Abraham_Lincoln#Secession_and_...

2. https://en.wikipedia.org/wiki/American_Civil_War

▲rayiner 21 hours ago | parent [-]

You're ignoring the context of the point--it's not about "bragging." We were discussing the quote above that someone is "disenfranchised" by adhering to the original meaning of the constitution "roughly in proportion to how much they share in common with" "white men." But following that logic to its conclusion leads to absurd results.

By that logic, non-white people would have been less "disenfranchised" if the constitution had been written by people who matched their skin color. But, in fact, that's not true! Slavery was abolished in Africa by force by the British Empire, or else in the 20th century due to international pressure. Those societies never developed large-scale indigenous movements to abolish slavery. So if you were an enslaved person in America, you would have been worse off if the constitution had been written by people from your country of origin! Your best-case scenario would have been to have more of the colonies be populated by Puritans and Quakers, who ultimately proved willing to kill other British people to end the practice of slavery. But Puritans and Quakers were "white" too!

The point is that principles transcend race, and focusing on skin color similarity with the founders (or lack thereof) is sophomoric. The constitution was written by "white" men, but the people living under it today are the spiritual and cultural descendants of those men--even the ones who superficially resemble the African and Middle Eastern counterparts of the American founders.

▲triceratops 9 hours ago | parent [-]

I didn't really follow the long discussion thread y'all were having. I just dislike Civil War revisionism and interjected with a correction.

For me, the British Empire's battle against the Atlantic Slave trade is a worthier example of Western (and especially Anglo) abolition efforts than your example of the American Civil War.

https://en.wikipedia.org/wiki/Blockade_of_Africa

https://en.wikipedia.org/wiki/West_Africa_Squadron

▲TimorousBestie 2 days ago | parent | prev | next [-]

Your second paragraph does not make the argument you seem to intend. Most other places in the world did not require an incredibly bloody civil war in order to (partially) abolish slavery.

https://en.wikipedia.org/wiki/Timeline_of_abolition_of_slave...

> Those cultures didn’t think slavery was wrong.

Southern antebellum culture was so beyond the pale it not only “didn’t think slavery was wrong,” it thought slavery was so good and so fundamental to its way of life that “mass fratricide,” as you put it, was preferable to abolition.

Previously: https://news.ycombinator.com/item?id=45407005

▲datsci_est_2015 2 days ago | parent | prev | next [-]

What’s the endgame of your argument here? It reeks of American exceptionalism of the type where its citizenry is not allowed to critically assess the effectiveness of its systems because other systems are somehow worse in some facets. This entire response is whataboutism.

Should disenfranchised Americans simply roll over because there are people more disenfranchised in other places in the world? Are some forms of disenfranchisement more acceptable than others? E.g. as long as we can narrowly interpret the words of the founding fathers (originalism) to be in favor of it?

▲coldtea 2 days ago | parent | prev [-]

>You’re complaining about where the founders didn’t follow their principles to their logical conclusions. But you overlook that you’re using the founders’ own principles to criticize how they fell short

Which is irrelevant, since it's not their influence on modern principles and their related concepts that's in question, but to whether "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.

It's precisely to the degree we don't interpet the consitution "as written by wealthy, landed 18th century white men", and, for example, extend it to women, blacks, the non land-owning poor, etc, that's

So, again: if you lived in a place that interpreted the constitution exactly in the way the "wealthy, landed 18th century white men" wrote it and interpreted it, e.g. as not incompatible with no-universal vote, few women rights, slavery and seggregation, and no free-speed by the way, would you be disenfrancized or not?

It's not the "Fathers" that de-disenfranchized the modern masses. It's people (including blacks) fighting, establishing newer protections, ammendments, and laxer interpretations, contrary to what the "wealthy, landed 18th century white men" constitutional practice was.

> You can’t even articulate the complaints you’re making using concepts indigenous to Asia, Africa, or the Middle East.

Ah, moving the goalposts again, from just the Constitution to also including Europe (which hopefully I established did many of these things first, and some better, and some much much earlier), the new ask being to find similar things "indigenous to Asia, Africa, or the Middle East".

Which exist. Even in ancient practices. And not just Greeks and Romans. Public deliberation, assemblies, and criticism of those in power have been found as practices all around the world, from egalitarian indigenous societies, even when not having a shorthand rallying cry like "free speech".

>You talk about slavery. But the countries those slaves were from enslaved their own people and sold them to America. Those cultures didn’t think slavery was wrong.

That's not an argument about how those "wealthy, landed 18th century white men" didn't still disenfrachize slaves. It's an excuse about how some other groups did it too. It might have been relevant response, had I claimed those other groups didn't disenfrachize slaves. But I didn't.

>It was the “0 to 1” step that was the hard one from which everything else followed.

Finally, that's an actual argument to the issue under discussion.

May I paraphrase it as "Sure, the founding fathers e.g. disenfrachized blacks etc, but their principles created the foundations for e.g. eventually abolishing slavery (that's an important 0 to 1 step)"?

And yet, tons of other places have either abolished, or practically zeroed, slavery, long before the Constitution was created. Didn't take a whole bloody war to achieve that either.

And we have no reason to believe the same modern changes wouldn't have happened without the Constitution, since parallel developments happened anyway, from Swiss cantons to the British Magna Carta, Bill of Rights, and the rest.

If anything the US in 1787 weren't ahead of the global curve. They were behind the other emerging constitutional states in accepting and even actively establishing constitutional support for slavery (like with the Three-fifths compromise and the Fugitive Slave clause). Even Japan had abolished slavery earlier!

▲rayiner a day ago | parent [-]

> it's not their influence on modern principles and their related concepts that's in question

No, that’s exactly the question. You’re saying that the constitution protects non-white people less because it was written by white people. The logical follow-up is to ask what the constitution would look like if it had been written by non-white people. That would solve the problem, right? In that scenario, people would share more “in common” with the hypothetical non-white framers, right? That would mean they would be more enfranchised, right?

For example, what if the framers had been Bangladeshis like me? Under your logic, I’d be more enfranchised by such a constitution, because I share more “in common” with those hypothetical Bangladeshi framers. But in reality, I’d be less franchised! Because we had no indigenous notions of democracy, civil rights, due process, free speech, etc. I’m actually better off that the framers were white British people than I would have been if the framers had been my own ancestors! Similarly, what if the constitution had been written by people from west africa? The people enslaved during the founding would have been enslaved under that constitution as well!

So the original premise is false. If you’re Asian, or African, or Middle Eastern, you wouldn’t be more franchised in a counterfactual scenario where your ancestors wrote the constitution according to the precepts that prevailed in your own ancestral lands.

▲datsci_est_2015 2 days ago | parent | prev [-]

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.

▲harimau777 2 days ago | parent | prev [-]

A reasonable initial place to draw the line might be "owns slaves".

▲Tadpole9181 2 days ago | parent | prev | next [-]

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.

▲rayiner 2 days ago | parent | prev | next [-]

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?

▲coldtea 2 days ago | parent | next [-]

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.

▲rayiner 2 days ago | parent [-]

> 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.

▲coldtea 2 days ago | parent [-]

In the real world, as a black, you would be disenfranchised in the US, even into the 1960s (and even now in certain systemic aspects), and the Constitution didn't prevent that. In fact it was written by people owning slaces or disenfranchizing blacks, the poor, and women, themselves.

And what we're debating in this subthread, is whether "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".

The fact that the constitution inspired changes "all over the world" doesn't change that fact.

Regarding slavery, which is something somewhat major you'd agree, the Constitution didn't even inspire enough within the US itself, since it took until the Civil War (and, more importantly, it took a civil war) to get it abolished.

>Because everyone was disenfranchised. Everyone was a serf.

You try to paint it as some unique development, but things like Magna Carta and habeas corpus (and even a bill of rights) already existed, as you're aware, the Swiss cantons had democratic (even direct democratic) institutions and the landsgemeinde system, and other such developments.

Slavery too had already disappeared in practice in western europe, but also many other places, centuries earlier. Which is likely why you had to change it to "serfdom", but even that wasn't applicable. The British, the Dutch, and other peoples had also quit (or effectively quit) serfdom as well, before the Constitution. Why, even russia (famous for its miserable serfdom system) had abolished serfdom right about before the Civil War!

▲goatlover 2 days ago | parent | prev | next [-]

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.

▲datsci_est_2015 2 days ago | parent | prev | next [-]

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.

▲rayiner 2 days ago | parent [-]

You brought up race. I’m just responding.

▲datsci_est_2015 2 days ago | parent | next [-]

The notion of “white” in the 18th century is completely detached from the notion of “white” in the 21st century, especially in the context of the US.

Did you edit your comment?

▲ 2 days ago | parent | prev [-]
[deleted]
▲IAmBroom a day ago | parent | prev [-]

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.

▲ 2 days ago | parent | prev | next [-]
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▲notfromhere 2 days ago | parent | prev | next [-]

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.

▲CGMthrowaway 2 days ago | parent | prev [-]

"absent a constitutional amendment"