4 ms·

I'd say the trans protections are one in a long-running series of examples of US law being written in a clear-cut way that should have protected a given group f

I'd say the trans protections are one in a long-running series of examples of US law being written in a clear-cut way that should have protected a given group from the start, but nonetheless 'obviously' didn't at the time because everyone knew what the lawmakers involved 'really' meant. This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery, and yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people'.

monocasa 6y ago
The constitution as originally written was explicitly in favor of state's being allowed to legalize slavery if they wished. Tons of aspects, the 3/5 compromise, the electoral college, etc were very intentional pieces of the system to say 'oh don't worry, you as a state will have federal representation even if you don't consider a large portion of your population to really be full people'. It very plainly allowed for slaves; no reading between the lines necessary.
- Mirioron 6y ago
  Wasn't the 3/5 compromise rather a way to curb the power of slave owners? The more slaves they had the more power the votes of the state had.
  - monocasa 6y ago
    It was well named as a compromise. One of the possible alternatives was that slaves didn't count at all, not really being full people in the eyes of society. Then the slave owning states wouldn't have had nearly as much federal representation.
sterlind 6y ago
My mom (Republican, lawyer) assured me (trans) that the Court would of course rule that Title VII protects queer and trans people from discrimination, as the plain meaning of the law forbids punishing employees for not conforming to gender stereotypes. She said that the conservative justices, being textualists, would agree. I laughed it off and thought she was drinking the Kool-Aid, but damned if she didn't read the future. Kavanagh forsook textualism, but Gorsuch wrote for the majority, using exactly the language my mom argued.
- srtjstjsj 6y ago
  The court has 5 conservatives and only 2 of them agreed. Textualism is a very weak foundation for a question which is relevant primarily because the issues at hand were not understood well enough to be part of the language when the law was written.
  - amdavidson 6y ago
    Automatic rifles would like to have a word with you.
dragonwriter 6y ago
> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery, Heh. No. Not only was it, from the start, not “incompatible with slavery”, but it made direct accommodations for it and even explicitly protected the slave trade even against Constitutional amendments for a certain period. From Art. I, Sec. 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.” Art. I, Sec. 9, cl. 1: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” Art. IV, Sec. 2: “No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” Art V: “…no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article;…” > yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people' Every article in the Bill of Rights is a limitation on the federal government, none protects against the states or against private parties, nor does any contradict and thus overrule the direct and indirect protections of slavery (including of the property interests of owners of fugitive slaves) and the slave trade written in the plain text of the original Constitution. People sometimes now, after the 14th Amendment, casually make imprecise reference to the Bill of Rights limiting the states, but it is actually the 14th Amendments limitations on the states that courts have interpreted to apply limitations equivalent to many of those in the Bill of Rights against the States.
- jandrese 6y ago
  Even back to the founding of the US slavery was a huge legal and moral problem. It's pretty clear to a disinterested party that the entire system is monstrous and incompatible with the concept of a free society, but at the same time it's a huge industry with enormous political sway. Trying to form the US without slavery means losing half of the states you are trying to pull into the union.
a1369209993 6y ago
> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery I think you're thinking back even further than that, actually, to the Declaration of Independence; slavery is probably the topic the Constitution most does not follow that pattern about.
MereInterest 6y ago
There are also some weird examples of things going in the other direction. The 13th Amendment forbids "involuntary servitude" anywhere within the jurisdiction of the United States. There was a Supreme Court case in the early 1900s concluding that this does not apply to conscription. To me, the draft is very clearly a form of involuntary servitude. To the court, the decision amounted to "well obviously the amendment isn't referring to that sort of involuntary servitude".

monocasa 6y ago

The constitution as originally written was explicitly in favor of state's being allowed to legalize slavery if they wished. Tons of aspects, the 3/5 compromise, the electoral college, etc were very intentional pieces of the system to say 'oh don't worry, you as a state will have federal representation even if you don't consider a large portion of your population to really be full people'. It very plainly allowed for slaves; no reading between the lines necessary.

Mirioron 6y ago
Wasn't the 3/5 compromise rather a way to curb the power of slave owners? The more slaves they had the more power the votes of the state had.
- monocasa 6y ago
  It was well named as a compromise. One of the possible alternatives was that slaves didn't count at all, not really being full people in the eyes of society. Then the slave owning states wouldn't have had nearly as much federal representation.

sterlind 6y ago

My mom (Republican, lawyer) assured me (trans) that the Court would of course rule that Title VII protects queer and trans people from discrimination, as the plain meaning of the law forbids punishing employees for not conforming to gender stereotypes. She said that the conservative justices, being textualists, would agree. I laughed it off and thought she was drinking the Kool-Aid, but damned if she didn't read the future. Kavanagh forsook textualism, but Gorsuch wrote for the majority, using exactly the language my mom argued.

srtjstjsj 6y ago
The court has 5 conservatives and only 2 of them agreed. Textualism is a very weak foundation for a question which is relevant primarily because the issues at hand were not understood well enough to be part of the language when the law was written.
- amdavidson 6y ago
  Automatic rifles would like to have a word with you.

dragonwriter 6y ago

> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery, Heh. No. Not only was it, from the start, not “incompatible with slavery”, but it made direct accommodations for it and even explicitly protected the slave trade even against Constitutional amendments for a certain period. From Art. I, Sec. 2: “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.” Art. I, Sec. 9, cl. 1: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” Art. IV, Sec. 2: “No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” Art V: “…no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article;…” > yet had a Bill of Rights conveniently not applied to slaves because everybody knew what the writers really meant by 'people' Every article in the Bill of Rights is a limitation on the federal government, none protects against the states or against private parties, nor does any contradict and thus overrule the direct and indirect protections of slavery (including of the property interests of owners of fugitive slaves) and the slave trade written in the plain text of the original Constitution. People sometimes now, after the 14th Amendment, casually make imprecise reference to the Bill of Rights limiting the states, but it is actually the 14th Amendments limitations on the states that courts have interpreted to apply limitations equivalent to many of those in the Bill of Rights against the States.

jandrese 6y ago
Even back to the founding of the US slavery was a huge legal and moral problem. It's pretty clear to a disinterested party that the entire system is monstrous and incompatible with the concept of a free society, but at the same time it's a huge industry with enormous political sway. Trying to form the US without slavery means losing half of the states you are trying to pull into the union.

a1369209993 6y ago

> This dates all the way back to the Constitution, which from the very start had a plain-text reading incompatible with slavery I think you're thinking back even further than that, actually, to the Declaration of Independence; slavery is probably the topic the Constitution most does not follow that pattern about.

MereInterest 6y ago

There are also some weird examples of things going in the other direction. The 13th Amendment forbids "involuntary servitude" anywhere within the jurisdiction of the United States. There was a Supreme Court case in the early 1900s concluding that this does not apply to conscription. To me, the draft is very clearly a form of involuntary servitude. To the court, the decision amounted to "well obviously the amendment isn't referring to that sort of involuntary servitude".