[datsci_est_2015]

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]

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]

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]

>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]

> 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]

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]

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]

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.

[datsci_est_2015]

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]

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

[Tadpole9181]

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]

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]

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]

> 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]

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]

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.

[IAmBroom]

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.

[datsci_est_2015]

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]

You brought up race. I’m just responding.

[datsci_est_2015]

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?

[notfromhere]

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]

"absent a constitutional amendment"