Slavery and demography in the USA - 2

Futurist

Ad Honoris
May 2014
22,733
SoCal
Tact can sometimes be useful even between friends, You know?
True, but when you yourself hinted at this once you left this forum, I felt that being honest about this would increase your odds of permanently coming back onto this forum! :)
 
Nov 2019
4
Ukraine
I was aware of the absence of the word 'slavery' but never knew why.
.. living breathing constitution can mean anything at all is a lie spread by originalists.
American slaves were always called chattels - moveable property... In America, slaves had no rights at all.
there is article "The Jurisprudence of American Slave Sales" (Jenny B. Wahl, 1996);
phrase from page 144: "slave law was more sophisticated than the law governing other sorts of transactions, in particular livestock sales..
The law of slave sales concerned itself with the transfer and protection of property rights, not with the establishment of ownership"

please where can we find more details about "slave law", "law of slave sales" mentioned?

as US Constitution (and derivative acts) are under your doubt whether all this means that only judgements of courts are worthy?
 

Chlodio

Forum Staff
Aug 2016
4,723
Dispargum
there is article "The Jurisprudence of American Slave Sales" (Jenny B. Wahl, 1996);
phrase from page 144: "slave law was more sophisticated than the law governing other sorts of transactions, in particular livestock sales..
The law of slave sales concerned itself with the transfer and protection of property rights, not with the establishment of ownership"

please where can we find more details about "slave law", "law of slave sales" mentioned?

as US Constitution (and derivative acts) are under your doubt whether all this means that only judgements of courts are worthy?
Interesting article, but I was only comparing slavery with serfdom - slaves were movable property while serfs were immovable property. I never dug so deep as to examine the nature of property rights. The difference between property rights and ownership are highly technical. Only legal scholars would notice the difference.
 
  • Like
Reactions: Futurist

Futurist

Ad Honoris
May 2014
22,733
SoCal
I think the equal protection clause was intended to guarantee equal education to all.
That's not necessarily guaranteed, though. For instance, some Republicans in 1866-1868 said that the 14th Amendment was equivalent to the 1866 Civil Rights Act--an act that did not include school integration. After the 14th Amendment was passed and ratified, of course, Republicans became more bolder in interpreting it and there actually was a huge Congressional push to integrate the schools in the US in 1874-1875--a push that ultimately failed when some Republicans chickened out after the Republicans' humiliating defeat in the 1874 midterm elections. Of course, had Congress indeed ordered school integration in 1874-1875, there's no guarantee that the US Supreme Court would have actually refrained from striking down this Congressional action; rather, SCOTUS could have struck down this action if it would have believed that this action would have exceeded Congress's authority to interpret the 14th Amendment.

Interestingly enough, as Raoul Berger writes in Government by Judiciary and elsewhere, when the issue of school segregation's compatibility with the federal US Constitution reached US courts, courts have generally ruled that school segregation is compatible with the federal US Constitution. Of course, there were some dissenters in regards to this view back then. Here's the text of an 1883 New York US federal court case which upheld the constitutionality of school segregation but which also had a couple of dissenting voices that argued otherwise:


It is impossible to craft laws that correctly anticipate every problem that will arise. When a problem comes before a court for which there is no black letter legal solution, the court must decide to do nothing, or to make new law. Nature, including human nature, abhors a vacuum. Most people expect the government to be proactive. The biggest cause for the decline in Congress' power and prestige is their persistent refusal to do their job thereby allowing the executive and judicial branches to take up the slack. If Congress would pass timely laws, the courts (and the executive) wouldn't have the opportunity to do it for them. Government is all about power. Everyone in government wants more power. The way to restrict the courts from this blatant power grab is for Congress to exercise its proper power itself and not let the courts do it for them. That's why the founders designed a system of checks and balances. Rather than expecting or hoping for the courts to restrain themselves, it would be better for Congress to act in its own best interest.
Please keep in mind, though, that Congress can only legislate in regards to issues that are actually left to the US federal government. In other words, if something is a state issue and Congress tries to legislate in regards to this, SCOTUS could simply strike down this Congressional action.

Also, originalists don't oppose applying laws to new circumstances. Rather, what they--or at least old originalists in the style of Raoul Berger and Alfred Avins--object to is applying laws (including the US Constitution) in a way that the writers and ratifiers of these laws rejected. For instance, if contemporary supporters of the 14th Amendment didn't actually understand the 14th Amendment as ever giving the US federal judiciary the authority to impose a "one person, one vote" principle on US states, then it would be illegitimate from an originalist perspective for SCOTUS to make rulings that would have done this--rulings such as Reynolds v. Sims.

I'm fine with orginalism if the laws are regularly updated, ie, if we're only applying the original intent of a 20 or 30 year old laws.
Again, originalists don't object to applying laws to new circumstances; what they object is applying laws in such a way that contemporary supporters of these laws rejected.

The electoral college is obsolete. Unfortunately there's too much black letter law protecting it for the courts to overturn it.
I don't know why we infer a right to own a machine gun from a law written in a time of muzzle loaders. If there's a new law authorizing machine gun ownership, that's OK, but don't justify 21st century technology with an 18th century law.
That might be a good point about gun control.

Most state powers and functions have not stood up well against modern communications. When it's so easy to cross state lines, those lines become increasingly arcane and arbitrary. Why do we apportion Congress by states? Would representation be more equal if Montana and the Dakotas shared only two representatives between the three of them? Or maybe Vermont should share its representative with part of New York?
Technically speaking, SCOTUS probably could order the US Congress to increase the size of the US House of Representatives in order to make it more equal.