5 ms·

My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th

by datsci_est_2015 4mo 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 4mo ago
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
- datsci_est_2015 4mo ago
  You misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists. By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM: - The constitution grants rights - The authors have a bias (WL18CWM) - Originalists essentially ignore this bias, leading to fewer or restricted rights to people who are less similar to WL18CWM
- coldtea 4mo ago
  >If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is. And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
  - rayiner 4mo ago
    > Just that those making the constitution weren't that good at it. They were exceedingly good at it. In my country’s constitution we have all sorts of things from the american constitution, like due process, because we literally have no indigenous words for these concepts.
    - coldtea 4mo ago
      And some other country might be liking those Founding Fathers concepts' even more. So? Doesn't change the fact that they weren't very good with not letting class/race/gender/etc position influence their policy making. And that's the claim we're discussing whether they've been good at, not whether they came up with some good new concepts like "due process" and "the right to free speech". They had "due process" but they also had slavery. They had "equal rights" and voting but not for poor not land-owning plebes or women. They had "free speech" but also McCarthyism. Their constitution didn't prevent laws describing how e.g. blacks can't sleep in the same hotels or go to the same schools as whites to be applied and be considered compatible with it. And didn't prevent a globally huge per capita prison system, primarily targeting blacks, even today.
      - rayiner 4mo ago
        [flagged]
        datsci_est_2015 4mo ago
        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?
        4mo ago
- harimau777 4mo ago
  A reasonable initial place to draw the line might be "owns slaves".
Tadpole9181 4mo ago
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.
deleted 4mo ago
[deleted]
rayiner 4mo ago
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?
- datsci_est_2015 4mo ago
  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 4mo ago
    You brought up race. I’m just responding.
    - deleted 4mo ago
      [deleted]
    - datsci_est_2015 4mo ago
      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?
- goatlover 4mo ago
  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.
- coldtea 4mo ago
  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.
CGMthrowaway 4mo ago
"absent a constitutional amendment"
notfromhere 4mo ago
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.

phainopepla2 4mo ago

Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?

datsci_est_2015 4mo ago
You misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists. By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM: - The constitution grants rights - The authors have a bias (WL18CWM) - Originalists essentially ignore this bias, leading to fewer or restricted rights to people who are less similar to WL18CWM
coldtea 4mo ago
>If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is. And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
- rayiner 4mo ago
  > Just that those making the constitution weren't that good at it. They were exceedingly good at it. In my country’s constitution we have all sorts of things from the american constitution, like due process, because we literally have no indigenous words for these concepts.
  - coldtea 4mo ago
    And some other country might be liking those Founding Fathers concepts' even more. So? Doesn't change the fact that they weren't very good with not letting class/race/gender/etc position influence their policy making. And that's the claim we're discussing whether they've been good at, not whether they came up with some good new concepts like "due process" and "the right to free speech". They had "due process" but they also had slavery. They had "equal rights" and voting but not for poor not land-owning plebes or women. They had "free speech" but also McCarthyism. Their constitution didn't prevent laws describing how e.g. blacks can't sleep in the same hotels or go to the same schools as whites to be applied and be considered compatible with it. And didn't prevent a globally huge per capita prison system, primarily targeting blacks, even today.
    - rayiner 4mo ago
      [flagged]
      - datsci_est_2015 4mo ago
        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?
      - 4mo ago
harimau777 4mo ago
A reasonable initial place to draw the line might be "owns slaves".

Tadpole9181 4mo ago

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.

deleted 4mo ago

[deleted]

rayiner 4mo ago

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?

datsci_est_2015 4mo ago
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 4mo ago
  You brought up race. I’m just responding.
  - deleted 4mo ago
    [deleted]
  - datsci_est_2015 4mo ago
    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?
goatlover 4mo ago
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.
coldtea 4mo ago
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.

CGMthrowaway 4mo ago

"absent a constitutional amendment"

notfromhere 4mo ago

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.