Originalism is racist. Originalism is sexist. Originalism is homophobic.
Well, the Constitution when originally written permitted slavery. Pretty racist. It permitted unequal treatment of women. Pretty sexist. It provided no protection for homosexuals. Pretty homophobic.
"Originalism" NEED NOT be those things. But it surely CAN BE those things. It once WAS.
Show me wear it promotes slavery, sexism, or anything about sexual preferences? In fact, given the constitution includes your amendments, which specifically bans slavery, sex discrimination, age discrimination, etc...
I would say that your argument is actually backwards. The constitution specifically bans discrimination and the wording of multiple amendments have been used to promote laws, defend laws, and even abolish laws to the contrary.
The only time there has been a discrepancy between "originalists" is to the degree that certain questions are a matter of Federal jurisdiction (Based on the 10th amendment). That amendment leads to arguments against the Federal Government being the ultimate say on things like gay marriage. Not because of any principle that the constitution demands that gays cannot marry, but because marriage is specifically a state issue (you get married by the State Government, and there is no means to marry under Federal law). Under normal circumstances, the 10th Amendment would take precedent (or not depending on the justice's view).
But there is literally nothing in the constitution that promotes any discrimination. To the degree that discrimination existed in any set of laws was simply because the constitution "failed" to address it until amendments were made, making those amendments to be part of the constitution.
For your benefit:
Ignoring the Amendments is like criticizing Christianity entirely on Old Testament teachings that were clarified (or outright changed) by the New Testament. The New Testament is what made Christianity.
In many ways the Amendments are the true heart and soul of the Constitution.
Originally, the Constitution was written in such a way as specifically to PERMIT slavery. The southern states insisted on that, and got their way.
As originally written, the Constitution allowed unequal treatment of women. There is simply no denying that.
As originally written, the Constitution mentioned nothing regarding homosexuals, much less anything about their protection.
To point this out is not to deny that, thank God, we have not insisted on those "original" or "originalist" ways of thinking, but have interpreted and amended, and must continue to interpret and amend, the Constitution in such a way as to correct any kinds of misconceptions, "originalist" or otherwise, that contradict the basic idea that we are all to have equality in life and before the law, no matter what our gender or race or ethnicity or sexual leanings, thus assuring that our nation may ever continue to have "new births of freedom" so that "government of the people, by the people, and for the people shall not perish from the earth."
I do not need to be lectured on that. But perhaps you may need to consider the possibility that some "originalist" understandings of the Constitution could be as wrong now they once were.
Rivals in landmark marriage equality suit: We are both voting for Biden
Opinion by Jim Obergefell and by Richard Hodges
Updated 9:32 AM ET, Sat October 31, 2020
Jim Obergefell is the named plaintiff in the marriage equality decision Obergefell v. Hodges. He is an activist, co-author of "Love Wins," and the co-founder of the wine label Equality Vines.
Richard Hodges is the named defendant in the same case. He was the former director of the Ohio Department of Health and former Republican member of the Ohio House of Representatives. The views expressed in this commentary are their own. ________
(CNN)History will likely remember us mostly for opposing each other in Obergefell v. Hodges, the landmark 2015 US Supreme Court case that ultimately granted marriage equality to all Americans. Then, we were on opposite sides in a case that made national news. One of us is a lifelong Democrat, the other a lifelong Republican.
But in the more than five years since our case, we have found each other in the middle and have become friends -- something that politicians in Washington DC used to do. Our political differences do not change our friendship because we both believe that the other deserves dignity and respect.
Like many SCOTUS decisions pertaining to marginalized groups, our case recognized that same-sex couples were entitled to the freedom and equal dignity of marriage and "would pose no risk of harm to themselves or third parties." And, according to a new survey, 70% of Americans think doing so was a good idea.
Today, many of those rights are at risk. The Donald Trump-Mike Pence administration has been hard at work, tearing away at the rights of oppressed groups and marginalized communities. Only days before the election, they installed a new Supreme Court Justice -- Amy Coney Barrett -- who, as a law professor, criticized Chief Justice John Roberts' decision upholding the Affordable Care Act. And we are in the middle of a deadly pandemic that's killed more than 229,000 Americans and infected more than 9 million.
This is not normal, and it is unacceptable.
For these and many other reasons, we fear that the reelection of President Trump on November 3 would take our country down a path toward the darkest days of our history -- one from which we may never return. These are hyper-polarized times, but this election is not between the lesser of two evils. There are two distinct paths before us, and they could not be more different.
One candidate is a rational, principled, empathetic and competent leader. The other is not.
One respects the office of the presidency and has genuine concern for the people whom he serves. The other does not.
One has a plan to forge a way out of the dark times we face. The other has never offered a national strategy or plan on Covid-19.
While we may not agree with every single component of Joe Biden's plans, we agree with where he's headed.
There is simply nothing more to Trump's campaign than a desire to divide us against each other.
Biden seeks, more than anything, to bring us together.
To get past the challenges we face today, that's what we'll need.
Our system of government is designed to give everyone a voice and to create compromise. However, this President and his enablers seem to have no issue with showing total disregard for the agreed upon norms and traditions of our democracy. This could not contrast more starkly with Biden's long record of working with both parties to accomplish real and lasting change, both as a US senator and as vice president.
And while no person is perfect, we can count on Biden to listen, learn and grow from experience.
Imagine how many more of us would be alive today had someone with that kind of humility and bravery -- and deference to public health experts -- been at the helm when the pandemic began.
In a normal election, we vote based on policies and agendas. We identify candidates that will take the side we agree with on issues we care about. By and large, we choose between two capable, rational people to represent us.
This is not that kind of election.
The last four years have left the oppressed more oppressed, both in word and in deed, and our civil discourse has entirely devolved.
The cost of this presidency has been the integrity of our nation itself.
Are we a nation of the people and justice under law, or are we a nation where those values that we claim as "American" no longer apply?
Each one of us is accountable for our choice on Election Day. Compromising with a man (and an agenda) who is so incredibly flawed makes that choice incredibly flawed.
We encourage our fellow Americans to take the path that leads away from division and darkness and toward a bright new future for our country. A path built by real, substantive, expertly informed plans and a deep desire to bring our nation together again because there is more that brings us together than could possibly divide us. A path forged by a love for one another and compassion for each other.
Together, whether you are Republican, Democrat or Independent, we ask you to vote for Joe Biden.
The Constitution was adopted in 1787. 234 years ago.
You are applying 21st century morality and sensibilities to an 18th century civilization that created the document. And you keep purposely ignoring those amendments that were added as the American civilization evolved.
I'd say it's held up pretty good. And originalism is not just about the constitution. It applies to the original meaning of words in a law at the timw of it's adoption. For example title IX of the civil rights act and the meaning of the word sex. It is obvious that it was meant to only accommodate the binary condition of being male or female as used in the 19th amendment and other federal statues and not the current orientation, gender preference or fashionable meaning applying to the word sex today.
While Goresuch's opinion was textualist, it was not originalist and if left the dangerous door open of changing a law by redefining the words that make up the law. This is one of the tactics George Orwell warned against.
So the Reverend is going to go around in circles and reclaim what has just been proven incorrect.
The only reference I have ever seen regarding slavery in the constitution was in regards to dealing with fugitives in Article 4. While it doesn't specifically refer to slavery, it did at the time apply to fugitive or runaway slaves as well as fugitive or runaway criminals.
Until of course, the 13 Amendment put that to rest. Yet the article is still valid in terms of fugitive criminals and extradition between states.
There is literally nothing in the constitution as it is written today that would affirm slavery, decry women's rights, or otherwise favor any sort of discrimination.
The problem for the left is that many of their plans are based on the idea of Democracy being two wolves and a sheep voting for what to have for dinner. The pesky constitution gets in the way of that by actually protecting Americans in terms of certain inalienable rights that simply cannot be taken away because a new generation of self absorbed people are offended by opinions or what-not.
Liberals are famous for... I don't like this or I don't want this, so you cannot have it or do it either. The constitution protects people in regards to not being "controlled" by the whims of those who feel so self absorbed that everyone should heed their opinion.
70% of Americans (for instance) favor restrictions on Abortions (and a plurality still consider themselves pro-life). Many of the restrictions favored by the majority of Americans run afoul to certain rights perceived by the courts based on privacy and due process under the 14th Amendment of the constitution.
People obviously disagree as to whether the 14 Amendment should cover this particular medical procedure, but it does... as the same 14th Amendment protects many other private decisions that people make (that might not align with the opinions of the majority of Americans).
The left wants to do away with the constitution or otherwise create a court that ignores much of it... instead using a select concept of judicial "fairness" as seen by the liberal ideal. Which of course, would be just as easily replaced with a concept of judicial fairness as seen by the conservative ideal.
Instead... the design of the constitution is about checks and balances. The court is supposed to act 100% outside of politics, not giving a bigger rip what the public "wants" - but making their decisions based on the rights, privacy, and other protections allotted by the very constitution that some want to abolish.
It would be like having no real "rules" in a sporting event other than what the fans really want at the time. If they are rooting for the team that just scored a touchdown after an obvious holding call, then the referee would ignore it. But if the other team scores, the referee would then call holding and overrule the touchdown. But alas, Football has rules that should be followed objectively (what the fans want is irrelevant).
Government needs a court system that is outside of political interference and not attempting to just follow public opinion of the day. Following public opinion is up to Congress to do, and do so within the boundaries of the some objective ruling oversight (in this case the Constitution). They have to determine what is really a whim or opinion of the day, and what is going to be a long lasting game changing issue that will not subject to another change in the near future.
When the Constitution was created in 1787, slavery was a powerful institution and a heated topic at the Constitutional Convention. Most disagreements came when the representatives from slave-holding states felt their "peculiar" institution was being threatened. James Madison, the Father of the Constitution and a slave owner, opposed the pro-slavery delegates and went on to say it would be, "wrong to admit in the Constitution the idea that there could be property in men." He didn't believe that slavery should be justified by federal law. Once the Constitution was ratified, slavery was never mentioned by name. Shouldn't this be obvious support that the Constitution did not support slavery? Not exactly.
When the Constitution was in the process of ratification, anti-federalists, such as Patrick Henry, opposed it, believing that it created a national government that could potentially threaten slavery. James Madison tried to convince the ratification delegates of Virginia otherwise by saying, "The original intent was indeed to protect slave property." So which is it, James: is it wrong to admit slavery into the Constitution, or is it the document's intent to protect it? Although it may seem that he is contradicting himself, both statements could be considered correct. Slavery is never mentioned in the Constitution, but there are 11 clauses that allude to its existence. Of those 11, 10 protect slavery and the power of slaveholders.
There are three blatant examples of slavery's existence in the Constitution. The first is the three-fifths clause. Slave-holding states wanted to gain power by counting slaves as people, thus attaining more representatives in the House. Northerners attacked this idea because previously, slave-holders justified slavery because slaves were not people. In order to prevent the slave-holders from walking out on the convention, and to scale back the power they would attain, the Convention settled on the counted slaves as three-fifths of a person.
The next example is the fugitive servant clause, or more correctly, the fugitive slave clause. This clause states, "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." This obviously prevents slaves from escaping from a slave state and attaining freedom in a free state.
The last, most blatant clause is also the only clause that does not protect slavery, and it wasn't strictly against it either. The international trade clause stated that Congress could not abolish the "Migration or Importation of such Persons" (slaves), until 1808. This meant that Congress could not abolish the international slave trade until 1808, which it did on January 1, 1808. However, even this clause wasn't actually against slavery. It did not say that Congress had to abolish the slave trade at all.
Did these constitutional clauses really give slave-holders that much power? Yes. Thomas Jefferson and James K. Polk were both elected with the help of the three-fifths clause in 1800 and 1844, respectively. Some critics of the influence of the three-fifths clause claim that it only affected representation in the House and not the Senate. However, what these critics do not consider is how it effected the number of electors in the Electoral College. The number of electors is determined by the number of senators, which is two for every state, plus the number of representatives in the House. This means that counting slaves gave slave-holding states more electoral states, and electoral votes then they deserved. In 1800, had the slaves not been counted, John Adams would have won the electoral vote and the election, but instead Jefferson won. This happened again in 1844. James K. Polk was able to defeat Henry Clay based on the electoral votes from the Deep South, slave-holding states. Although the clause directly effects representatives, it was also pivotal in presidential elections.
So who was right? Were John C. Calhoun and the slaveholders right in saying the Constitution protected chattel bondage, or was it Lincoln and Frederick Douglass who believed it didn't? Unfortunately, both can be considered correct. Although not explicitly stated, the Constitution was very pro-slave owner, but it had to be. Had the Constitution not included clauses that were beneficial to slave owners it would not have been ratified by the slave-holding states. However, although those clauses were beneficial to the slave owners, they did not recognize institution of slavery as national law. The vague allusions to slavery acted as both appeasements for slave-owners and damage control. The founders knew very well the hypocrisy of slavery in a country founded on the principles of freedom, therefore, they did not explicitly protect it, but they never denounced it either. Although these clauses may have preserved the Union in 1787, it ensured that the legality of slavery would be decided through war in 1861.
The first time the Constitution references slavery by name was in the 13th amendment, which abolished the institution. Prior to its passage, the Constitution did not support slavery, but it definitely did not denounce it either. The Constitution's indecisive stance on slavery was one of its biggest weaknesses.
Sex Discrimination and the U.S. Constitution Landmark Supreme Court Cases Regarding Women's Rights
The United States Constitution did not mention women or limit any of its rights or privileges to males. The word "persons" was used, which sounds gender neutral. However, common law, inherited from British precedents, informed the interpretation of the law. And many state laws were not gender-neutral. While right after the Constitution was adopted, New Jersey accepted voting rights for women, even those had been lost by a bill in 1807 that rescinded the right of both women and Black men to vote in that state.
The principle of coverture prevailed at the time the Constitution was written and adopted: a married woman was simply not a person under the law; her legal existence was bound up with that of her husband's.
Dower rights, meant to protect a widow's income during her lifetime, were already being ignored increasingly, and so women were in the tough position of not having significant rights to own property, while the convention of dower that had protected them under that system was collapsing. Beginning in the 1840s, women's rights advocates began working to establish legal and political equality for women in some of the states. Property rights of women were among the first targets. But these did not affect the federal constitutional rights of women. Not yet.
1868: Fourteenth Amendment to the U.S. Constitution The first major constitutional change to affect women's rights was the Fourteenth Amendment. This amendment was designed to overturn the Dred Scott decision, which found that Black people "had no rights which the white man was bound to respect," and to clarify other citizenship rights after the American Civil War had ended. The primary effect was to ensure that formerly enslaved people and other African Americans had full citizenship rights. But the amendment also included the word "male" in connection with voting, and the women's rights movement split over whether to support the amendment because it established racial equality in voting, or oppose it because it was the first explicit federal denial that women had voting rights.
1873: Bradwell v. Illinois Myra Bradwell claimed the right to practice law as part of the 14th Amendment's protections. The Supreme Court found that the right to choose one's profession was not a protected right and that women's "paramount destiny and mission" was the "offices of wife and mother." Women could be legally excluded from the practice of law, the Supreme Court found, using a separate spheres argument.
1875: Minor v. Happerset The suffrage movement decided to use the Fourteenth Amendment, even with that mention of "male," to justify women voting. A number of women in 1872 attempted to vote in a federal election; Susan B. Anthony was arrested and convicted for doing so. A Missouri woman, Virginia Minor, also challenged the law. The registrar's action forbidding her from voting was the basis for yet another case to reach the Supreme Court (her husband had to file the lawsuit, as coverture laws forbid her as a married woman from filing on her own behalf). In their decision in Minor v. Happerset, the Court found that while women were indeed citizens, voting was not one of the "privileges and immunities of citizenship" and thus states could deny women the right to vote.
1894: In re Lockwood Belva Lockwood filed a lawsuit to force Virginia to allow her to practice law. She was already a member of the bar in the District of Columbia. But the Supreme Court found that it was acceptable to read the word "citizens" in the 14th Amendment to include only male citizens.
1903: Muller v. Oregon Thwarted in legal cases claiming women's full equality as citizens, women's rights and labor rights workers filed the Brandeis Brief in the case of Muller v. Oregon. The claim was that women's special status as wives and mothers, especially as mothers, required that they be given special protection as workers. The Supreme Court had been reluctant to allow legislatures to interfere with contract rights of employers by permitting limits on hours or minimum wage requirements; however, in this case, the Supreme Court looked at evidence of working conditions and permit special protections for women in the workplace.
Louis Brandeis, himself later appointed to the Supreme Court, was the lawyer for the case promoting protective legislation for women; the Brandeis brief was prepared primarily by his sister-in-law Josephine Goldmark and by reformer Florence Kelley.
1920: Nineteenth Amendment Women were granted the right to vote by the 19th Amendment, passed by Congress in 1919 and ratified by enough states in 1920 to take effect.
1923: Adkins v. Children's Hospital In 1923, the Supreme Court decided that federal minimum wage legislation applying to women infringed on the liberty of contract and thus on the Fifth Amendment. Muller v. Oregon was not overturned, however.
1923: Equal Rights Amendment Introduced Alice Paul wrote a proposed Equal Rights Amendment to the Constitution to require equal rights for men and women. She named the proposed amendment for suffrage pioneer Lucretia Mott. When she reworded the amendment in the 1940s, it came to be called the Alice Paul amendment. It did not pass the Congress until 1972.
In view of these last two articles, it is clear that I was entirely right in stating in my first post:
Well, the Constitution when originally written permitted slavery. Pretty racist.
It permitted unequal treatment of women. Pretty sexist.
And court decision after court decision upheld those statements until amending the Constitution no longer permitted the Constitution to be interpreted as permitting racial discrimination (blacks as slaves subordinate to whites) or gender discrimination (women as subordinate to men), both as less than full citizens.
Last time I checked it's 2020, not 1803, 1868, 1903, 1923, or even 1972...
Last time I checked all of the Amendments are considered part of the constitution, including those that banned slavery and those that provided women and others equal rights.
Last time I checked the courts are obligated to rule on the constitution in it's current form. The entire concept of a textualist or even an originalist is that we don't attempt to rule based on the "assumptions" of what was meant, but rather on what was actually written.
We get into trouble when we attempt to decipher intent, especially when the world was much different. But once you literally ignore "intent" and just go with the actual words, and consider everything (including the amendments) in an objective status (eliminating different opinions even amongst the founding fathers as to "intent") then we have a set of rules that can be followed fairly consistently.
So a "history lesson" about what some scholar believes the intentions were, does not make the constitution in it's current form anything other than WHAT THE CONSTITUTION IS IN IT'S CURRENT FORM!! It's still an objective document that objectively spells out that Slavery is unconstitutional, women and minorities have the same rights as white men, etc, etc, etc....
once again, Reverend...
You should read it yourself https://constitution.congress.gov/constitution/
not depend on the cut and paste of other people's opinion.
Ch, do you really believe what you write? I never said we should disregard the Constitution as it NOW stands written. But you are arguing stupidity in trying to say that it did not originally permit slavery and gender discrimination.
Why were amendments even necessary if it did not?
You continually prove that it is futile to try to have a decent, sensible discussion with you.
I repeat what I said, which I notice you chose not to reply to. But if you had replied, I feel sure it would have been just some more of your obscurantism.
In my next post here I will seek to tell you in all honesty what really is different between you and me.
Before I do that, I will just add here parenthetically that I am glad to have been encouraged to find and read the article at 2:57 and 2:58 above, for it helped me better understand that the founders intended to permit slavery but not endorse slavery, agreeing, as Madison insisted, that the Constitution should not actually state that there could be "property in men." That helps clarify how Lincoln, who hated slavery, could feel justified in promising to leave slavery alone in the South where it existed, while not permitting any new slave states to enter the Union, believing as he did that the institution would ultimately cease to exist in all of the states.
19 comments:
Originalism is racist.
Originalism is sexist.
Originalism is homophobic.
Well, the Constitution when originally written permitted slavery.
Pretty racist.
It permitted unequal treatment of women.
Pretty sexist.
It provided no protection for homosexuals.
Pretty homophobic.
"Originalism" NEED NOT be those things.
But it surely CAN BE those things.
It once WAS.
Well Reverend...
Here is the constitution.
https://constitution.congress.gov/constitution/
Show me wear it promotes slavery, sexism, or anything about sexual preferences? In fact, given the constitution includes your amendments, which specifically bans slavery, sex discrimination, age discrimination, etc...
I would say that your argument is actually backwards. The constitution specifically bans discrimination and the wording of multiple amendments have been used to promote laws, defend laws, and even abolish laws to the contrary.
The only time there has been a discrepancy between "originalists" is to the degree that certain questions are a matter of Federal jurisdiction (Based on the 10th amendment). That amendment leads to arguments against the Federal Government being the ultimate say on things like gay marriage. Not because of any principle that the constitution demands that gays cannot marry, but because marriage is specifically a state issue (you get married by the State Government, and there is no means to marry under Federal law). Under normal circumstances, the 10th Amendment would take precedent (or not depending on the justice's view).
But there is literally nothing in the constitution that promotes any discrimination. To the degree that discrimination existed in any set of laws was simply because the constitution "failed" to address it until amendments were made, making those amendments to be part of the constitution.
For your benefit:
Ignoring the Amendments is like criticizing Christianity entirely on Old Testament teachings that were clarified (or outright changed) by the New Testament. The New Testament is what made Christianity.
In many ways the Amendments are the true heart and soul of the Constitution.
Originally, the Constitution was written in such a way as specifically to PERMIT slavery.
The southern states insisted on that, and got their way.
As originally written, the Constitution allowed unequal treatment of women. There is simply no denying that.
As originally written, the Constitution mentioned nothing regarding homosexuals, much less anything about their protection.
To point this out is not to deny that, thank God, we have not insisted on those "original" or
"originalist" ways of thinking, but have interpreted and amended, and must continue to interpret and amend, the Constitution in such a way as to correct any kinds of misconceptions, "originalist" or otherwise, that contradict the basic idea that we are all to have equality in life and before the law, no matter what our gender or race or ethnicity or sexual leanings, thus assuring that our nation may ever continue to have "new births of freedom" so that "government of the people, by the people, and for the people shall not perish from the earth."
I do not need to be lectured on that. But perhaps you may need to consider the possibility that some "originalist" understandings of the Constitution could be as wrong now they once were.
Perhaps this is appropo:
Rivals in landmark marriage equality suit:
We are both voting for Biden
Opinion
by Jim Obergefell and
by Richard Hodges
Updated 9:32 AM ET, Sat October 31, 2020
Jim Obergefell is the named plaintiff in the marriage equality decision Obergefell v. Hodges. He is an activist, co-author of "Love Wins," and the co-founder of the wine label Equality Vines.
Richard Hodges is the named defendant in the same case. He was the former director of the Ohio Department of Health and former Republican member of the Ohio House of Representatives. The views expressed in this commentary are their own.
________
(CNN)History will likely remember us mostly for opposing each other in Obergefell v. Hodges, the landmark 2015 US Supreme Court case that ultimately granted marriage equality to all Americans. Then, we were on opposite sides in a case that made national news. One of us is a lifelong Democrat, the other a lifelong Republican.
But in the more than five years since our case, we have found each other in the middle and have become friends -- something that politicians in Washington DC used to do. Our political differences do not change our friendship because we both believe that the other deserves dignity and respect.
Like many SCOTUS decisions pertaining to marginalized groups, our case recognized that same-sex couples were entitled to the freedom and equal dignity of marriage and "would pose no risk of harm to themselves or third parties." And, according to a new survey, 70% of Americans think doing so was a good idea.
Today, many of those rights are at risk. The Donald Trump-Mike Pence administration has been hard at work, tearing away at the rights of oppressed groups and marginalized communities. Only days before the election, they installed a new Supreme Court Justice -- Amy Coney Barrett -- who, as a law professor, criticized Chief Justice John Roberts' decision upholding the Affordable Care Act. And we are in the middle of a deadly pandemic that's killed more than 229,000 Americans and infected more than 9 million.
This is not normal, and it is unacceptable.
For these and many other reasons, we fear that the reelection of President Trump on November 3 would take our country down a path toward the darkest days of our history -- one from which we may never return. These are hyper-polarized times, but this election is not between the lesser of two evils. There are two distinct paths before us, and they could not be more different.
One candidate is a rational, principled, empathetic and competent leader. The other is not.
One respects the office of the presidency and has genuine concern for the people whom he serves. The other does not.
One has a plan to forge a way out of the dark times we face. The other has never offered a national strategy or plan on Covid-19.
While we may not agree with every single component of Joe Biden's plans, we agree with where he's headed.
There is simply nothing more to Trump's campaign than a desire to divide us against each other.
Biden seeks, more than anything, to bring us together.
To get past the challenges we face today, that's what we'll need.
Our system of government is designed to give everyone a voice and to create compromise. However, this President and his enablers seem to have no issue with showing total disregard for the agreed upon norms and traditions of our democracy.
This could not contrast more starkly with Biden's long record of working with both parties to accomplish real and lasting change, both as a US senator and as vice president.
And while no person is perfect, we can count on Biden to listen, learn and grow from experience.
Imagine how many more of us would be alive today had someone with that kind of humility and bravery -- and deference to public health experts -- been at the helm when the pandemic began.
In a normal election, we vote based on policies and agendas. We identify candidates that will take the side we agree with on issues we care about. By and large, we choose between two capable, rational people to represent us.
This is not that kind of election.
The last four years have left the oppressed more oppressed, both in word and in deed, and our civil discourse has entirely devolved.
The cost of this presidency has been the integrity of our nation itself.
Are we a nation of the people and justice under law, or are we a nation where those values that we claim as "American" no longer apply?
Each one of us is accountable for our choice on Election Day. Compromising with a man (and an agenda) who is so incredibly flawed makes that choice incredibly flawed.
We encourage our fellow Americans to take the path that leads away from division and darkness and toward a bright new future for our country. A path built by real, substantive, expertly informed plans and a deep desire to bring our nation together again because there is more that brings us together than could possibly divide us. A path forged by a love for one another and compassion for each other.
Together, whether you are Republican, Democrat or Independent, we ask you to vote for Joe Biden.
The Constitution was adopted in 1787. 234 years ago.
You are applying 21st century morality and sensibilities to an 18th century civilization that created the document. And you keep purposely ignoring those amendments that were added as the American civilization evolved.
I'd say it's held up pretty good. And originalism is not just about the constitution. It applies to the original meaning of words in a law at the timw of it's adoption. For example title IX of the civil rights act and the meaning of the word sex. It is obvious that it was meant to only accommodate the binary condition of being male or female as used in the 19th amendment and other federal statues and not the current orientation, gender preference or fashionable meaning applying to the word sex today.
While Goresuch's opinion was textualist, it was not originalist and if left the dangerous door open of changing a law by redefining the words that make up the law. This is one of the tactics George Orwell warned against.
And while no person is perfect, we can count on Biden to listen, learn and grow from experience.
47 years in public office, how much do you think he can grow from experience.
If Biden wins, he would never be the president Trump was and the people who elected him will find out it was the worse mistake in their lives.
So the Reverend is going to go around in circles and reclaim what has just been proven incorrect.
The only reference I have ever seen regarding slavery in the constitution was in regards to dealing with fugitives in Article 4. While it doesn't specifically refer to slavery, it did at the time apply to fugitive or runaway slaves as well as fugitive or runaway criminals.
Until of course, the 13 Amendment put that to rest. Yet the article is still valid in terms of fugitive criminals and extradition between states.
There is literally nothing in the constitution as it is written today that would affirm slavery, decry women's rights, or otherwise favor any sort of discrimination.
The problem for the left is that many of their plans are based on the idea of Democracy being two wolves and a sheep voting for what to have for dinner. The pesky constitution gets in the way of that by actually protecting Americans in terms of certain inalienable rights that simply cannot be taken away because a new generation of self absorbed people are offended by opinions or what-not.
Liberals are famous for... I don't like this or I don't want this, so you cannot have it or do it either. The constitution protects people in regards to not being "controlled" by the whims of those who feel so self absorbed that everyone should heed their opinion.
70% of Americans (for instance) favor restrictions on Abortions (and a plurality still consider themselves pro-life). Many of the restrictions favored by the majority of Americans run afoul to certain rights perceived by the courts based on privacy and due process under the 14th Amendment of the constitution.
People obviously disagree as to whether the 14 Amendment should cover this particular medical procedure, but it does... as the same 14th Amendment protects many other private decisions that people make (that might not align with the opinions of the majority of Americans).
The left wants to do away with the constitution or otherwise create a court that ignores much of it... instead using a select concept of judicial "fairness" as seen by the liberal ideal. Which of course, would be just as easily replaced with a concept of judicial fairness as seen by the conservative ideal.
Instead... the design of the constitution is about checks and balances. The court is supposed to act 100% outside of politics, not giving a bigger rip what the public "wants" - but making their decisions based on the rights, privacy, and other protections allotted by the very constitution that some want to abolish.
It would be like having no real "rules" in a sporting event other than what the fans really want at the time. If they are rooting for the team that just scored a touchdown after an obvious holding call, then the referee would ignore it. But if the other team scores, the referee would then call holding and overrule the touchdown. But alas, Football has rules that should be followed objectively (what the fans want is irrelevant).
Government needs a court system that is outside of political interference and not attempting to just follow public opinion of the day. Following public opinion is up to Congress to do, and do so within the boundaries of the some objective ruling oversight (in this case the Constitution). They have to determine what is really a whim or opinion of the day, and what is going to be a long lasting game changing issue that will not subject to another change in the near future.
When the Constitution was created in 1787, slavery was a powerful institution and a heated topic at the Constitutional Convention. Most disagreements came when the representatives from slave-holding states felt their "peculiar" institution was being threatened. James Madison, the Father of the Constitution and a slave owner, opposed the pro-slavery delegates and went on to say it would be, "wrong to admit in the Constitution the idea that there could be property in men." He didn't believe that slavery should be justified by federal law. Once the Constitution was ratified, slavery was never mentioned by name. Shouldn't this be obvious support that the Constitution did not support slavery? Not exactly.
When the Constitution was in the process of ratification, anti-federalists, such as Patrick Henry, opposed it, believing that it created a national government that could potentially threaten slavery. James Madison tried to convince the ratification delegates of Virginia otherwise by saying, "The original intent was indeed to protect slave property." So which is it, James: is it wrong to admit slavery into the Constitution, or is it the document's intent to protect it? Although it may seem that he is contradicting himself, both statements could be considered correct. Slavery is never mentioned in the Constitution, but there are 11 clauses that allude to its existence. Of those 11, 10 protect slavery and the power of slaveholders.
There are three blatant examples of slavery's existence in the Constitution. The first is the three-fifths clause. Slave-holding states wanted to gain power by counting slaves as people, thus attaining more representatives in the House. Northerners attacked this idea because previously, slave-holders justified slavery because slaves were not people. In order to prevent the slave-holders from walking out on the convention, and to scale back the power they would attain, the Convention settled on the counted slaves as three-fifths of a person.
The next example is the fugitive servant clause, or more correctly, the fugitive slave clause. This clause states, "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." This obviously prevents slaves from escaping from a slave state and attaining freedom in a free state.
The last, most blatant clause is also the only clause that does not protect slavery, and it wasn't strictly against it either. The international trade clause stated that Congress could not abolish the "Migration or Importation of such Persons" (slaves), until 1808. This meant that Congress could not abolish the international slave trade until 1808, which it did on January 1, 1808. However, even this clause wasn't actually against slavery. It did not say that Congress had to abolish the slave trade at all.
Did these constitutional clauses really give slave-holders that much power? Yes. Thomas Jefferson and James K. Polk were both elected with the help of the three-fifths clause in 1800 and 1844, respectively. Some critics of the influence of the three-fifths clause claim that it only affected representation in the House and not the Senate. However, what these critics do not consider is how it effected the number of electors in the Electoral College. The number of electors is determined by the number of senators, which is two for every state, plus the number of representatives in the House. This means that counting slaves gave slave-holding states more electoral states, and electoral votes then they deserved. In 1800, had the slaves not been counted, John Adams would have won the electoral vote and the election, but instead Jefferson won. This happened again in 1844. James K. Polk was able to defeat Henry Clay based on the electoral votes from the Deep South, slave-holding states. Although the clause directly effects representatives, it was also pivotal in presidential elections.
So who was right? Were John C. Calhoun and the slaveholders right in saying the Constitution protected chattel bondage, or was it Lincoln and Frederick Douglass who believed it didn't? Unfortunately, both can be considered correct. Although not explicitly stated, the Constitution was very pro-slave owner, but it had to be. Had the Constitution not included clauses that were beneficial to slave owners it would not have been ratified by the slave-holding states. However, although those clauses were beneficial to the slave owners, they did not recognize institution of slavery as national law. The vague allusions to slavery acted as both appeasements for slave-owners and damage control. The founders knew very well the hypocrisy of slavery in a country founded on the principles of freedom, therefore, they did not explicitly protect it, but they never denounced it either. Although these clauses may have preserved the Union in 1787, it ensured that the legality of slavery would be decided through war in 1861.
The first time the Constitution references slavery by name was in the 13th amendment, which abolished the institution. Prior to its passage, the Constitution did not support slavery, but it definitely did not denounce it either. The Constitution's indecisive stance on slavery was one of its biggest weaknesses.
Sex Discrimination and the U.S. Constitution
Landmark Supreme Court Cases Regarding Women's Rights
The United States Constitution did not mention women or limit any of its rights or privileges to males. The word "persons" was used, which sounds gender neutral. However, common law, inherited from British precedents, informed the interpretation of the law. And many state laws were not gender-neutral. While right after the Constitution was adopted, New Jersey accepted voting rights for women, even those had been lost by a bill in 1807 that rescinded the right of both women and Black men to vote in that state.
The principle of coverture prevailed at the time the Constitution was written and adopted: a married woman was simply not a person under the law; her legal existence was bound up with that of her husband's.
Dower rights, meant to protect a widow's income during her lifetime, were already being ignored increasingly, and so women were in the tough position of not having significant rights to own property, while the convention of dower that had protected them under that system was collapsing. Beginning in the 1840s, women's rights advocates began working to establish legal and political equality for women in some of the states. Property rights of women were among the first targets. But these did not affect the federal constitutional rights of women. Not yet.
1868: Fourteenth Amendment to the U.S. Constitution
The first major constitutional change to affect women's rights was the Fourteenth Amendment. This amendment was designed to overturn the Dred Scott decision, which found that Black people "had no rights which the white man was bound to respect," and to clarify other citizenship rights after the American Civil War had ended. The primary effect was to ensure that formerly enslaved people and other African Americans had full citizenship rights. But the amendment also included the word "male" in connection with voting, and the women's rights movement split over whether to support the amendment because it established racial equality in voting, or oppose it because it was the first explicit federal denial that women had voting rights.
1873: Bradwell v. Illinois
Myra Bradwell claimed the right to practice law as part of the 14th Amendment's protections. The Supreme Court found that the right to choose one's profession was not a protected right and that women's "paramount destiny and mission" was the "offices of wife and mother." Women could be legally excluded from the practice of law, the Supreme Court found, using a separate spheres argument.
1875: Minor v. Happerset
The suffrage movement decided to use the Fourteenth Amendment, even with that mention of "male," to justify women voting. A number of women in 1872 attempted to vote in a federal election; Susan B. Anthony was arrested and convicted for doing so. A Missouri woman, Virginia Minor, also challenged the law. The registrar's action forbidding her from voting was the basis for yet another case to reach the Supreme Court (her husband had to file the lawsuit, as coverture laws forbid her as a married woman from filing on her own behalf). In their decision in Minor v. Happerset, the Court found that while women were indeed citizens, voting was not one of the "privileges and immunities of citizenship" and thus states could deny women the right to vote.
1894: In re Lockwood
Belva Lockwood filed a lawsuit to force Virginia to allow her to practice law. She was already a member of the bar in the District of Columbia. But the Supreme Court found that it was acceptable to read the word "citizens" in the 14th Amendment to include only male citizens.
1903: Muller v. Oregon
Thwarted in legal cases claiming women's full equality as citizens, women's rights and labor rights workers filed the Brandeis Brief in the case of Muller v. Oregon. The claim was that women's special status as wives and mothers, especially as mothers, required that they be given special protection as workers. The Supreme Court had been reluctant to allow legislatures to interfere with contract rights of employers by permitting limits on hours or minimum wage requirements; however, in this case, the Supreme Court looked at evidence of working conditions and permit special protections for women in the workplace.
Louis Brandeis, himself later appointed to the Supreme Court, was the lawyer for the case promoting protective legislation for women; the Brandeis brief was prepared primarily by his sister-in-law Josephine Goldmark and by reformer Florence Kelley.
1920: Nineteenth Amendment
Women were granted the right to vote by the 19th Amendment, passed by Congress in 1919 and ratified by enough states in 1920 to take effect.
1923: Adkins v. Children's Hospital
In 1923, the Supreme Court decided that federal minimum wage legislation applying to women infringed on the liberty of contract and thus on the Fifth Amendment. Muller v. Oregon was not overturned, however.
1923: Equal Rights Amendment Introduced
Alice Paul wrote a proposed Equal Rights Amendment to the Constitution to require equal rights for men and women. She named the proposed amendment for suffrage pioneer Lucretia Mott. When she reworded the amendment in the 1940s, it came to be called the Alice Paul amendment. It did not pass the Congress until 1972.
In view of these last two articles, it is clear that I was entirely right in stating in my first post:
Well, the Constitution when originally written permitted slavery.
Pretty racist.
It permitted unequal treatment of women.
Pretty sexist.
And court decision after court decision upheld those statements until amending the Constitution no longer permitted the Constitution to be interpreted as permitting racial discrimination (blacks as slaves subordinate to whites) or gender discrimination (women as subordinate to men), both as less than full citizens.
So Reverend...
Last time I checked it's 2020, not 1803, 1868, 1903, 1923, or even 1972...
Last time I checked all of the Amendments are considered part of the constitution, including those that banned slavery and those that provided women and others equal rights.
Last time I checked the courts are obligated to rule on the constitution in it's current form. The entire concept of a textualist or even an originalist is that we don't attempt to rule based on the "assumptions" of what was meant, but rather on what was actually written.
We get into trouble when we attempt to decipher intent, especially when the world was much different. But once you literally ignore "intent" and just go with the actual words, and consider everything (including the amendments) in an objective status (eliminating different opinions even amongst the founding fathers as to "intent") then we have a set of rules that can be followed fairly consistently.
So a "history lesson" about what some scholar believes the intentions were, does not make the constitution in it's current form anything other than WHAT THE CONSTITUTION IS IN IT'S CURRENT FORM!! It's still an objective document that objectively spells out that Slavery is unconstitutional, women and minorities have the same rights as white men, etc, etc, etc....
once again, Reverend...
You should read it yourself https://constitution.congress.gov/constitution/
not depend on the cut and paste of other people's opinion.
Ch, do you really believe what you write? I never said we should disregard the Constitution as it NOW stands written. But you are arguing stupidity in trying to say that it did not originally permit slavery and gender discrimination.
Why were amendments even necessary if it did not?
You continually prove that it is futile to try to have a decent, sensible discussion with you.
I repeat what I said, which I notice you chose not to reply to.
But if you had replied, I feel sure it would have been just some more of your obscurantism.
In my next post here I will seek to tell you in all honesty what really is different between you and me.
Before I do that, I will just add here parenthetically that I am glad to have been encouraged to find and read the article at 2:57 and 2:58 above, for it helped me better understand that the founders intended to permit slavery but not endorse slavery, agreeing, as Madison insisted, that the Constitution should not actually state that there could be "property in men." That helps clarify how Lincoln, who hated slavery, could feel justified in promising to leave slavery alone in the South where it existed, while not permitting any new slave states to enter the Union, believing as he did that the institution would ultimately cease to exist in all of the states.
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