An interesting point that was not explicitly mentioned in the article: Correct me if I'm wrong, but both Obama and Clinton would have been eligible to run for president even before the 15th/19th amendments, even though they would have been deined the vote. (In Obama's case, I'm assuming that, having been transported back in time, he would materialize as a freeman.)

Although not a practical possibility, there is at least one actual example: Victoria Woodhull ran for president long before women had the right to vote (1872).

That's not exactly true of African Americans, however. In important part, the Supreme Court held in Dred Scott that blacks were never supposed to be considered citizens of the United States, even free blacks in free states. Without being citizens, they couldn't have run for President.

Dred Scott, of course, is one of the worst tragedies of the Supreme Court and led almost directly to the Civil War. Interesting, the Supreme Court used an originalist theory of the constitution to decide that African Americans weren't citizens by finding that it was not the intent of the framers to include blacks within the meaning of citizen.

That fact alone should make us reconsider whether the intent of the framers can usefully inform our constitutional interpretations.

[That fact alone should make us reconsider whether the intent of the framers can usefully inform our constitutional interpretations.]

Then what should, pray tell?

The 200+ years of case law and interpretation. The problem with most originalists is that they want to bypass all that case law and interpretation in order to make new judgements based on the perceived intent of the framers, but then they selectively choose which framers to follow in order to make conservative decisions. Sorry, big dog, but you can't assume that you have some special insight into the intent of the framers, and neither do Scalia, Alito, or Thomas.

Ummm . . . But what you are arguing for is not ignoring the intent of the framers, but of considering what others have said and thought about what the true intent really was.

But that leaves you nowhere. Dredd Scott was settled precedent at one time too. On what basis, using your criteria, would you overturn it?

True, you're a moron. Dred Scott was overruled by the 14th amendment. It never was "settled precedent." It was a decision made in 1858; it lead directly to the Civil War; and was overturned by the ratification of the 14th Amendment in 1868 which states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

That is the FIRST sentence of the 14th amendment. It was specifically written to overturn Dred Scott, especially the part I discuss above wherein the court found that blacks weren't citizens.

Relying on the constitutional gloss built up over the 200 years does not require using originalist interpretation for the simple reason that the courts have not always used orginalism in discussing the constitution. You seem to think that originalism has always been the dominant interpretative theory when in reality it has only been prominent for about 35 years.

Let's be clear about what originalism is: it is a specifically conservative interpretative doctrine that came into existence along side movement conservatism as a way to overturn prior constitutional law. It has always been designed as a way to cover and justify politically motivated, conservative judicial activism.

Since you might have wanted to know the answer to this, Dred Scott was wrong at the time it was decided in large part because the constitution doesn't say a single thing about who is a citizen of this country. The court decided on the basis of original intent rather than actual practice that free black men could not possibly be citizens of the country. But the constitution does not say that at any point.

[Dred Scott was overruled by the 14th amendment.]

Yes, I know that.

[Relying on the constitutional gloss built up over the 200 years does not require using originalist interpretation for the simple reason that the courts have not always used orginalism in discussing the constitution. ]

Yeah, that's true. The courts have often overstepped their rightful bounds.

reece:

Since you might have wanted to know the answer to this, Dred Scott was wrong at the time it was decided in large part because the constitution doesn't say a single thing about who is a citizen of this country. The court decided on the basis of original intent rather than actual practice that free black men could not possibly be citizens of the country. But the constitution does not say that at any point.

Actually, if you read your history a bit, you will find that free blacks enjoyed rights in several northern states at the time of the ratifying of the constitution. Add to that the point you make that the constitution is completely silent on racial qualifications for citizenship, and the conclusion is that original intent would strongly indicate that the constitution should not be understood to automatically blacks the rights of citizens.

What you are arguing for (in this case) actually is original intent.

reece:

Let's be clear about what originalism is: it is a specifically conservative interpretative doctrine that came into existence along side movement conservatism as a way to overturn prior constitutional law. It has always been designed as a way to cover and justify politically motivated, conservative judicial activism.

Not a chance. Many examples prove you wrong.

1. Movement conservatives want to outlaw most abortions. But we do not want the courts to do so, or even the federal government. We only want the right to vote on the issue on a state-by-state basis.

2. Most conservatives are against legalization of pot. But even Bill Buckley has written in support of the state of CA having the right to legalize medical MJ without federal interference as a matter of state's rights.

3. We are almost uniformly opposed to gay marraige. But very few are looking for a federal ban. All we want is to protect our right to decide this issue at the state level.

Originalism is not about "getting our way." It is a principled doctrine of restricting the courts to their legitimate role and allowing the people through their legislatures to govern their own affairs via the democratic process. We are perfectly okay with the people of, say, New Jersey, wanting to live under different laws than the people of Indiana. That's the way federalism is supposed to work.

Except that is not the conclusion that the court actually came to just 70 years after the actual ratification of the constitution. Your argument is that the method wasn't flawed, but that the conclusions were. The problem you have is that the method lead directly to the flawed conclusion--without that method, the decision would not have resulted as it did. As you point out, the practice at the time was that free black men were considered citizens, and as you agree, the constitutional text does not have anything to say about who is a citizen. The idea that free black men weren't citizens is only possible by recourse to some conception of original intent.

I'm not arguing original intent. What you have done is found a way to make "original intent" coincide with the ultimately "right" outcome of the case. We both agree, don't we, that the constitution prior to the civil war amendments could not reasonably interpreted to find that free black men weren't citizens? The difference between you and I on this is that you are positing an extra interpretative principle that is unnecessary to reach that conclusion but which in fact led the Supreme Court to reach the opposite conclusion. My theory of interpretation is superior to yours on the grounds of parsimony, and furthermore, your theory of interpretation can reasonably be used to reach a "false" conclusion as the Supreme Court actually did while mine cannot. After all, if we are to use the "intent of the framers" we must be bound by that intent as we find it, right?

See, this is exactly where we disagree, True, you have drunk the koolaid and believe that originalism is somehow principled. But it's just not, see for example, Scalia's recent opinion in which he states that federal drug regulation overrides state regulation despite obvious federalism concerns to the contrary. See also the recent supreme court decision upholding the federal ban on partial birth abortions despite the fact that it clearly and obviously violates the limitations imposed by the interstate commerce clause.

In some way, I feel sorry for you, True. I'm sure you're a nice and well meaning person, but you have been duped by the right wingers in this country into thinking that abortion is a crucial issue. They have been using you in order to keep power.

reece:

Except that is not the conclusion that the court actually came to just 70 years after the actual ratification of the constitution. Your argument is that the method wasn't flawed, but that the conclusions were. The problem you have is that the method lead directly to the flawed conclusion--without that method, the decision would not have resulted as it did. As you point out, the practice at the time was that free black men were considered citizens, and as you agree, the constitutional text does not have anything to say about who is a citizen. The idea that free black men weren't citizens is only possible by recourse to some conception of original intent.

I'm not arguing original intent. What you have done is found a way to make "original intent" coincide with the ultimately "right" outcome of the case. We both agree, don't we, that the constitution prior to the civil war amendments could not reasonably interpreted to find that free black men weren't citizens? The difference between you and I on this is that you are positing an extra interpretative principle that is unnecessary to reach that conclusion but which in fact led the Supreme Court to reach the opposite conclusion. My theory of interpretation is superior to yours on the grounds of parsimony, and furthermore, your theory of interpretation can reasonably be used to reach a "false" conclusion as the Supreme Court actually did while mine cannot. After all, if we are to use the "intent of the framers" we must be bound by that intent as we find it, right?

What about your claim just above that "original intent" was invented 35 years ago and prior to that the courts didn't use it?

[But it's just not, see for example, Scalia's recent opinion in which he states that federal drug regulation overrides state regulation despite obvious federalism concerns to the contrary.]

I disagree with that decision.

[ See also the recent supreme court decision upholding the federal ban on partial birth abortions despite the fact that it clearly and obviously violates the limitations imposed by the interstate commerce clause.]

LOL! So, the supreme court takes an issue (abortion) that was entirely a state matter, federalizes it via judical fiat, and then I'm supposed to fault the legislature for passing national laws regulating the practice? Nice try.

[In some way, I feel sorry for you, True. I'm sure you're a nice and well meaning person, but you have been duped by the right wingers in this country into thinking that abortion is a crucial issue. They have been using you in order to keep power.]

Ummm . . . Well actually, I tend to think that protecting the citizenship rights of all americans equally is a pretty important issue. If you don't why do you get so exercised about 200 year old court cases that were subsequently overturned?