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Thursday, September 20, 2012

Constitutional Originalism

For John, BLUF:  While there was slavery when we adopted the Constitution, thanks to five States (yeah, Massachusetts), Blacks did have skin in the game from the get-go.

Over at the Volokh Conspiracy we have Ilya Somin asking, "Were African-Americans Part of “We the People” at the Time of the Founding?"

Notwithstanding Supreme Court Justice Clarence Thomas recently making news by stating that Blacks were not part of “We the People” at the time of the Founding in the 1780s, it appears they were.  The basis of that assertion is that in five states Backs held full citizenship, and thus helped ratify the US Constitution.

Referring to US Supreme Court Justice Benjamin Curtis, who dissented in Dred Scott v. Sandford, Mr Somin says:
Earlier in the opinion, Curtis explained why citizens of states at the time of the Founding were legally citizens of the United States as well, and described the relevant laws of the five states he refers to:  New Hampshire, Massachusetts, New York, New Jersey, and (most surprising) the southern state of North Carolina.

None of this negates the terrible reality that the vast majority of African-Americans in 1787 were slaves, and as such clearly were excluded from political participation and otherwise severely oppressed.  Even free blacks were also subjected to extensive official discrimination, including exclusion from the franchise in several states.  Nonetheless, it is not true that African-Americans were completely excluded from the “We the People” who established the Constitution.
So what?  In a subsequent post Mr Somin elaborates:
Some critics of originalism have argued that the original Constitution was illegitimate because it excluded blacks.  There is little doubt that the original Constitution tolerated severe racial injustices, most notably slavery.  But there is nonetheless a difference between a Constitution that left slavery and other injustices alone (in part because abolition was politically impossible at the time), and one that categorically denies all blacks any “rights which the white man was bound to respect,” as Taney put it.
If the Constitution is illegitimate, then are we living a lie?  If this becomes an issue, I would vote to readopt the current Constitution, as is, warts and all.  Once you move to change one thing it will be 52 card pickup.

Regards  —  Cliff

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