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Constitutional Interpretation at "The View":
Looks like the Thirteenth Amendment Public Awareness Society has its work cut out for it.
EH (mail):
Yikes, "Us white folk will take care of you." I'll take that as a maybe!
9.12.2008 4:45pm
K. Dackson (mail):
McCain should have responded:

"Dear, you can be anything you want to be."
9.12.2008 4:46pm
Malvolio:
How about "When were you ever a slave, you unfunny Ted-Danson-dating waste of air-time? I doubt you've ever mowed your own lawn."

OK, maybe that's a little too assertive, but McCain should certainly not have said "That's a very good point," because it wasn't.
9.12.2008 4:50pm
J. Aldridge:
Whoopie has complained chain-gangs is slavery. Note the 13th Amendment does not exempt you from slavery for crime.
9.12.2008 4:50pm
David Warner:
And these are the people Palin should be answering to?

I don't think McCain will be winning any "light-on-his-feet" awards any time soon.
9.12.2008 4:53pm
A.W. (mail):
Barbara Walters made me cringe. But Whoopi made me want to throw something at the screen.

Here's a clue to anyone who cares about the 13th Amendment. You are safer when the amendment is in the hands of an originalist, rather than a living constitutionalist. Living constitutionalists can ignore the stuff they don't like. Originalists (true originalists, anyway) can't.

Or let me put it more baldly. When the Supreme Court ruled that separate but equal was okay under the constitution, that was living constitutionalism. When the SC ruled that segregation cannot stand, although the official reasons were living constitutionalism, the result was precisely in line with original intent.
9.12.2008 4:54pm
OrinKerr:
When the Supreme Court ruled that separate but equal was okay under the constitution, that was living constitutionalism. When the SC ruled that segregation cannot stand, although the official reasons were living constitutionalism, the result was precisely in line with original intent.

A.W., I believe most people would disagree with you on that one.
9.12.2008 4:59pm
J. Aldridge:
Speaking of original intent... I read the author of the equal protection clause said it did not address school segregation policies.
9.12.2008 5:00pm
Snaphappy Fishsuit Mokiligon:
I believe John McCain was in the Senate when the 14th Amendment was passed, why don't we ask him?
9.12.2008 5:04pm
Ex-Fed (mail) (www):
I am terribly disappointed, as previously I had looked to "The View" for substantial analysis and intelligent debate.
9.12.2008 5:06pm
some dude:
Here's a clue to anyone who cares about the 13th Amendment. You are safer when the amendment is in the hands of an originalist, rather than a living constitutionalist.
How 'bout strict constructionists? Pretty safe there.
9.12.2008 5:10pm
Loophole1998 (mail):
Why in the world did McCain say that Whoopi made "an excellent point"??? To the uninformed voter he came off looking like somebody in favor of a form of constitutional interpretation that could result in a return to slavery.

How often does the important issue of the proper role of judges come to the public's attention? Hardly ever. The press does not understand it, reporting only outcomes.

Here was McCain blowing a golden opportunity for a "teaching moment."
9.12.2008 5:30pm
Sasha Volokh (mail) (www):
Well, McCain did say he wanted people to interpret the Constitution "as the Founders envisioned it" or something like that, making explicit reference to the "Founders."

Now to some people, the Founders means the authors of the original Constitution. I realize that you could take Founders to mean the framers of every part of the Constitution, so it includes people in 1865 for the Thirteenth Amendment, people in 1971 for the Twenty-Sixth Amendment, and assorted people from the 18th century to 1992 for the Twenty-Seventh Amendment. But that initial reading is non-crazy.
9.12.2008 5:45pm
Jake90024 (mail):
Mac should have said:
"Whoopi, whatchoo talkin bout, girl? Yo, you know you love a strict reading of the Constitution, yo. It's actually the text of the Constitution that eliminates slavery. Those founders -- moronic backwoods hatemongers that they were -- they built in a way for us to change the Constitution as the times change. And so the people ratified the 13th Amendment to the Constitution after all those brave black and white folks from the north won the Civil War. You only have to worry about being enslaved if we put judges on the bench who ignore what the text of Constitution says. Are you wit me girl?
9.12.2008 5:48pm
J. Aldridge:
Sasha, you bring up a very intersting topic. To me, the founders were those 300,000 people who voted to adopt the constitution. These voters wanted nothing to do with an all powerful central government (monarchy) to meddle in their domestic affairs or laws.
9.12.2008 5:56pm
Anon321:
"[Y]ou could take Founders to mean the framers of every part of the Constitution ... from the 18th century to 1992."

We simply can't let the dead hand of 1992 control contemporary society. Why, under McCain's vision of constitutional interpretation (at least insofar as I understand it via Whoopi), we'd all have to listen to Right Said Fred and M.C. Hammer while watching My Cousin Vinnie. At the risk of hyperbole, that's a hundred billion times worse than slavery.
9.12.2008 5:57pm
A.W. (mail):
Orin

> [me] When the Supreme Court ruled that separate but equal was okay under the constitution, that was living constitutionalism. When the SC ruled that segregation cannot stand, although the official reasons were living constitutionalism, the result was precisely in line with original intent.

> [orin] A.W., I believe most people would disagree with you on that one.

That is probably true, but in that case most people would be wrong. They greatly underestimate just how radical the radical republicans were, especially the Father of the Fourteenth Amendment, Thaddeus Stevens. Stevens, for instance, not only expounded a truly color blind philosophy (saying, paraphrase: no distinction shall be tolerated in this purified republic but what arose from merit and conduct), but lived and died by those principles, actually directing that his body would be buried in desegregated cemetery. He said what he meant: no distinction. No discrimination.

The big point of confusion is that many of the founders simultaneously made various comments suggesting they considered African Americans to be inferior (although Stevens himself didn't—and by all evidence actually believed African Americans to be his equal). It was a conundrum to me at first when studying that period, but after a while I got it. you have to understand how discrimination is justified—not just discrimination by race, but discrimination that we think is good, such as discriminating between criminals and non-criminals. It requires two determinations. First, you have to believe there is a significant difference between the groups. Skin color is technically a difference, but I think most sane people would say it is not a significant one. Second, you have to believe that this difference justifies the discrimination in question.

The modern approach to equal opportunity, generally, is to deny the existence of a difference. Fair enough. I agree on the subject of race and sex. But the approach of those who expounded equality of opportunity in the 19th century was to say, even if there is a difference, that doesn't justify discrimination. Believing very much in competition as the best arbiter of talent, they said, more or less, "if black people are not equal, then giving them a fair chance won't hurt me; they will fail anyway." Thus they were often seen to mock the pro-discrimination forces as being afraid of competition with black people. For instance, Stevens offered a version of that when talking about sex discrimination; although Stevens was not racist, he was sexist, but appeared by the time of the founding of the Fourteenth Amendment to favor women's rights. So he argued one day that many in his party feared he rivalry of women the way the democrats feared the "rivalry of the negro."

Another good example came in the founding of Galludet. In the brief debate on that subject, one congressman argued it was ridiculous to give out degrees to the deaf. The response from another congressman (I don't have his name available) was to say that ultimately it will be the deaf person's abilities that will make something of the degree, so why not give him the chance? They didn't think for one minute the deaf were equal to the hearing, nor would that even be a rational position today. Tautologically if you are disabled, you are not equal. But that shouldn't stop us from giving the disabled a chance.

And the reason why they had to believe that, was because the evidence in that day was so meagher. One thing we don't talk about is that if you were living in 1860, the slaves by and large would have struck you as stupid. We don't appreciate that a person without any education whatsoever loses even what is thought of as common sense. Around that time, however, Braille and sign language were invented, and suddenly thousands of people who were assumed to be stupid, found new avenues to education. Watching those handicapped people go from ignorance to education, and seemingly become smarter as well as more knowledgeable, made many bigoted whites wonder if they had made the same incorrect assumptions about black people—that what they mistook as stupidity was really the product of a lack of education. Examples such as Fredderick Douglass only reinforced that notion; like Lincoln, Douglass didn't get a lot of education but really made the most of what he got. So many whites were forced to admit that there were at least some exceptional African Americans mixed in there, and to admit to the possibility that maybe they were all just...equal. But they were not certain. So the approach of saying, "even if they are inferior, this doesn't justify discrimination" is a perfect philosophical fit for someone who suspects, but isn't sure, that the group facing discrimination is really their equals.

And do not discount the importance of the Fifteenth Amendment in this discussion. What could be a greater statement that they believed African Americans should be allowed to enjoy equal rights than that? Bear in mind that meant that in two states you were turning the government over to an electorate that was about 2/3 (South Carolina) and 50% African American (Mississippi).

That fundamental misunderstanding of the founders' philosophy is one reason why their intent is often incorrectly perceived. The second is the common assumption that progress only goes one way. But any serious student of the period recognizes that just after the civil war, there was a brief period where African Americans made incredible strikes, only to be knocked back by Klan-type terrorists. I mean how many times have you seen an African American elected to office in the South somewhere and they would say "______ is the first African American to be elected to that post since just after the civil war." And people forget that this meant many of those famous African American pioneers—first senator, first representative, first lieutenant governor—enjoyed that rise during reconstruction.

Of course that isn't the whole case. It would take too long to go through all of it and I will point out McConnel's work on this subject is also of great value. But I have looked at their words and understood their philosophy. They were opposed to legal segregation in all of its forms.

Some dude:

Fair enough,. I don't use those terms too exactly. I just mean anyone who tries to actually follow the words of the constitution rather than their own sense of justice.
9.12.2008 5:59pm
LM (mail):
A.W.:

Barbara Walters made me cringe. But Whoopi made me want to throw something at the screen.

Here's a clue to anyone who cares about the 13th Amendment. You are safer when the amendment is in the hands of an originalist, rather than a living constitutionalist. Living constitutionalists can ignore the stuff they don't like. Originalists (true originalists, anyway) can't.

So you're bent out of shape that Whoopie Goldberg isn't sufficiently conversant with the debate over Constitutional originalism? Do you also want to remind us how elitism is a liberal disease?
9.12.2008 6:03pm
Edward Lunny (mail):
"Should I be worried about being a slave, about being returned to slavery because certain things happened in the Constitution that you had to change?"....I submit that this is the most perfect example of hysteria shown by a leftist in at least the last day or so. A question that glaringly stupid would, and should, shame anyone with a lick of common sense into hiding until after the winter solstice, at least.
9.12.2008 6:33pm
A.W. (mail):
L.M.

It would be elitist to excuse her from knowing what should be common knowledge.

And of course it is never elitist to point out that one of our elites is just plain dumb, although it is alot like shooting fish in a barrel.
9.12.2008 6:38pm
Christopher Cooke (mail):
I think Whoopi's knowledge of Constitutional Law is comparable to Governor Palin's knowledge of foreign policy. So, I think Obama should nominate Justice Goldberg to the Supreme Court.

Also, A.W., what does it say about McCain's knowledge of Constitutional law that he didn't say to Whoopi, "Well the constitution was amended to prohibit slavery" in response to Whoopi's remarks. To use your words, shouldn't this be "common knowledge?" Or, at least, common knowledge from someone who wants to be President?
9.12.2008 7:06pm
Christopher Cooke (mail):
I think Whoopi's knowledge of Constitutional Law is comparable to Governor Palin's knowledge of foreign policy. So, I think Obama should nominate Justice Goldberg to the Supreme Court.

Also, A.W., what does it say about McCain's knowledge of Constitutional law that he didn't say to Whoopi, "Well the constitution was amended to prohibit slavery" in response to Whoopi's remarks. To use your words, shouldn't this be "common knowledge?" Or, at least, common knowledge from someone who wants to be President?
9.12.2008 7:06pm
Christopher Cooke (mail):
I think Whoopi's knowledge of Constitutional Law is comparable to Governor Palin's knowledge of foreign policy. So, I think Obama should nominate Justice Goldberg to the Supreme Court.

Also, A.W., what does it say about McCain's knowledge of Constitutional law that he didn't say to Whoopi, "Well the constitution was amended to prohibit slavery" in response to Whoopi's remarks. To use your words, shouldn't this be "common knowledge?" Or, at least, common knowledge from someone who wants to be President?
9.12.2008 7:06pm
CherryGhost:

It would be elitist to excuse her from knowing what should be common knowledge.


What should be common knowledge and what is common knowledge are often incredibly divergent. See, e.g., here.

Also, is it elitist to be the arbiter of who gets to call whom elitist?
9.12.2008 7:06pm
Donna B. (mail) (www):
She's a comedian and she got her laughs. She used her race to make him the butt of a joke. There's no way he could have turned that into a teachable moment.

McCain, being an old white guy didn't have a chance. But I'm glad he patronized her :-)
9.12.2008 7:25pm
KWC (mail):
All of you:

Do you really think McCain knows that the 13th Amendment banishes slavery?

Ask average people on the street where (if anywhere) in the Constitution slavery is banished and I'm pretty sure you will get blank stares.

I'd bet a lot of money that he doesn't. If he did, he could have easily made that point instead of saying that he saw her concern.
9.12.2008 8:01pm
Asher (mail):
I think she vaguely knew that the Constitution now bans slavery. She's just trying to say that fidelity to the values of the framers isn't always the best idea. Very poorly put though.
9.12.2008 8:31pm
A.W. (mail):
Chris

> I think Whoopi's knowledge of Constitutional Law is comparable to Governor Palin's knowledge of foreign policy.

I don't know. She has never said anything as stupid as "let's ask the UN Sec. Counsel to restrain Russia." In fact, I haven't seen any lack of knowledge on her part.

> Also, A.W., what does it say about McCain's knowledge of Constitutional law that he didn't say to Whoopi, "Well the constitution was amended to prohibit slavery" in response to Whoopi's remarks.

I don't know he didn't. the clip stops very quickly after her comment.

Cherry

> What should be common knowledge

I'm not letting her off the hook. Paternalism is the worst kind of elitism.
9.12.2008 8:48pm
LM (mail):
A.W.,

Is it paternalistic to think it's OK not everyone has the same interests as lawyers' and blog denizens'? Lots of people know something they think everyone ought to know. Are all of them paternalistic unless they abandon their lives, put on a sandwich sign, and go on a mission to teach the world what it needs to know?
9.12.2008 11:07pm
David Warner:
Orin,

"A.W., I believe most people would disagree with you on that one."

Are you among them? Is this a case of hard cases make bad law?

A.W.,

Thanks for your explanation of the two anti-discrimination rationales - I'd never heard that before.

LM,

I think that people should know that the Constitution is amendable and has been amended, yes. It's reasonable to discuss what civic knowledge citizens should know in a Republic. Maybe McPalin can offer to support an ERA ratification convention in return for a commitment to support axing Roe.
9.12.2008 11:43pm
Brian G (mail) (www):
Tell Whoopi that we have full freedim in this country. A perfect example is my freedom to completely ignore everything she says and does.
9.13.2008 12:17am
David Schwartz (mail):
Her concern is valid. The original founders probably didn't have modern media in mind when they spoke of freedom of the press nor access to DNA evidence in mind when they called for due process. When they talked about the People having inalienable rights, they were thinking about white men.

The Constitution means what the framers meant by the words they used, but not what they had in mind as the referents. In other words, when they talk about "due process", it means that process which is actually due, no what process the framers would have considered to be due.

So to prove that due process requires X, you must simply show that X is in fact a process that is due you. You need not show that the framers would have considered it so. That rational people today consider it so is the best we can do.
9.13.2008 1:29am
LM (mail):
David Warner:

I think that people should know that the Constitution is amendable and has been amended, yes.

I'd hope so too. But that's a far cry from what A.W. suggested. And there's nothing in what Whoopie said to preclude that she does know that.

It's reasonable to discuss what civic knowledge citizens should know in a Republic.

I'd hope so.

Maybe McPalin can offer to support an ERA ratification convention in return for a commitment to support axing Roe.

I'd say that's extremely unlikely. For my money, I'd give up Roe without an ERA convention, but nobody's asking me, and anyway I suspect it's for mostly different reasons than you have in mind. I do think it's a terrible decision. But though I'm generally pro-choice, I'd like to offload Roe primarily to rob the religious right of the motivating force it gives them.
9.13.2008 1:55am
David Warner:
LM,

"And there's nothing in what Whoopie said to preclude that she does know that."

Care to flesh that out a bit? I think that was exactly what her question implied and exactly what McCain should have answered. The whole point of originalism is too reinvigorate civic discourse by requiring persuasion of the people to make changes, not just judges.*

"But though I'm generally pro-choice, I'd like to offload Roe primarily to rob the religious right of the motivating force it gives them."

We're agreed. Likewise NARAL fanatics.


* - of course there are others too, but that's the one that I care most about. If I'm calling it by the wrong name, I'd enjoy a correction. I'm also aware that this approach is at times insufficient. I'm cool with an occasional Brown or Civil War if the alternative is rule by a de facto House of Lords. Not because I don't like the Lords, but because I don't like a disengaged citizenry and the tyranny it portends.
9.13.2008 2:24am
gerbilsbite (mail):
Good to know that, with a man who's likely to be the next President of the United States sitting there dissembling (on the subject of his repeated lying, no less), we're fixating on Whoppi's interpretation of the Founders and the Constitution. Nothing askew about these priorities at all, no sir.
9.13.2008 2:59am
LM (mail):
David Warner,

McCain: "I want people who interpret the Constitution of the United States the way our founding fathers envisioned for them to do."

Whoopie: "Does that... should I be worried about being a slave, being returned to a slave? Because certain things happened in the Constitution that you had to change."

What she said is ambiguous. She may think the slaves were freed extra-constitutionally or she may think it happened by amendment. Either is consistent with a plausible misunderstanding that McCain meant the Constitution should be interpreted as the founding fathers envisioned interpreting only the text they drafted. And I wouldn't fault her for that level of ignorance.

We're agreed. Likewise NARAL fanatics.

I apologize for presuming otherwise. As for NARAL, I don't think they're going anywhere any more than the religious right is. And I'd expect them to be empowered by Roe being overturned, just as the religious right would be dis-empowered. Not that I like doing NARAL any favors, but compared to the religious right I find them a relatively harmless, if incredibly irritating presence. For now anyway. And in light of what I'd expect in a post-Roe world (i.e., abortion not much less accessible than now for most, more expensive and inconvenient for some) I don't see a constituency that can get NARAL the kind of power the religious right has. If that's wrong, I guess we burn that bridge when we come to it.

Considering my track record over more than four decades for predicting social developments, elections, etc., you can take everything I just said to the bank. Indiebank.

About your formulation of originalism, if that's what it is, I like the reasoning, but I couldn't seriously call myself an originalist of any description. I'm an unreconstructed tax-and-spend New Deal Liberal Living Constitutionalist, at least until I see a better way to fulfill what I think is our collective responsibility to the least among us. I realize that's shamelessly result oriented, and to many around here it stinks like moldy sweat socks... but there it is.
9.13.2008 5:14am
Melancton Smith:
I think she mis-interpreted 'originalism'. She heard him say we should interpret the Constitution as the Founders did to mean what it read back in the 1790s.
9.13.2008 10:20am
David Warner:
LM,

"I'm an unreconstructed tax-and-spend New Deal Liberal Living Constitutionalist, at least until I see a better way to fulfill what I think is our collective responsibility to the least among us"


"That charity is bad which takes from independence its proper pride, and mendicity its proper shame."

- Southey

The New Deal, now old, has proven to be older still, indeed the oldest deal there is: the dominance of the weak by the strong via bread and circuses. A Constitution made alive by unelected Guardians does little to ameliorate that weakness, however well-intentioned the Guardians, in contrast to the unprecedented social mobility offered by the American tradition that preceded their rise.
9.13.2008 4:13pm
LM (mail):
I didn't say it was good. Just better than the alternative.
9.13.2008 7:59pm
LM (mail):
I'll save the discussion about social mobility, pre and post New Deal, for another time. Suffice it say we seem to have located our zone of disagreement. And it doesn't look small.
9.13.2008 8:06pm
LM (mail):
... and like most weighty matters it took The View to get to the bottom of it.
9.13.2008 8:14pm
David Warner:
LM,

"I'll save the discussion about social mobility, pre and post New Deal, for another time. Suffice it say we seem to have located our zone of disagreement. And it doesn't look small."

I'll look forward to your explanation for how confiscating the capital (to be returned, of course, when they are no longer a threat, and with 40 years of float skimmed) of the working classes promotes mobility.

It's not called Social Security for nothing.

Philosophically, however, I suspect the gap may be smaller than you think.
9.13.2008 9:32pm
David Warner:
"I didn't say it was good. Just better than the alternative."

Case in point.
9.14.2008 1:52am
LM (mail):
You might be right, but I give you more credit than that. My political philosophy's pretty shallow. You may have seen most of it on this thread.
9.14.2008 3:58am
David Warner:
LM,

"My political philosophy's pretty shallow. You may have seen most of it on this thread."

A philosophy consists of (much) more than words. I've seen how you conduct yourself on these forums. Deeds matter. Hence my provisional but deep support for Palin, for instance.
9.14.2008 1:32pm
LM (mail):
No disagreement there.
9.15.2008 1:12am
Anna Roberts:
It was a stupid comment made by a stupid woman. Disagreements based on legitimate points are one thing, arbitrarily throwing out idiotic comments to try and muddy the waters helps no one. I have never found her to be an overly intelligent woman and a mediocre comedian. Now I find her to be an ignorant woman, but still a mediocre comedian
9.15.2008 6:50pm