Does ‘Originalism’ Mean Adhering to the Three-Fifths Compromise?

No.

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A viral Instagram post with text over a photo of recently sworn in Supreme Court Justice Amy Coney Barrett reads: “I’m an originalist, that means I follow the law as it was when the country was founded. Yes I know Black people were considered to be ⅗ human then, so what?” The post has been liked over 28,000 times since it was posted on Tuesday.

https://www.instagram.com/p/CG0nkCAMGAE

Although Barrett does in fact describe herself as an originalist, the post is false.

Barrett described her perspective on originalism on the second day of her confirmation hearing in front of the Senate Judiciary Committee on October 13: “So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it,” said Barrett. “So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

The term “originalism” was coined in the 1980s as a way to describe a judicial philosophy focused on understanding and interpreting the Constitution with its original meaning.

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  1. Avatar photo
    Luke Thompson (not that one)

    The correct answer to the title is yes. The error in the post your fact checking is the claim that "black people" were considered "3/5 human."

    That's far more fundamental, since it reveals that those who shared the meme understand neither originalism nor the Constitution itself.

    All free persons are counted wholly. "Indians not taxed" aren't counted at all, and "all other persons" are counted as three/fifths. That category has nothing to do with race. A free black person (most likely in the north) was counted 100%. Only the slave owners wanted them counted at all. The notion that the racist position is 3/5ths, rather than 0/5ths is historically illiterate.

    Technically, the 3/5ths compromise is still in effect. If we were somehow to raise a group of parakeets to partial sentience and enslave them, they'd only be counted as 3/5ths of a person.

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    1. Avatar photo
      Luke Thompson (not that one)

      you're*. I need to do a better job of proofreading after I reformat sentences.

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    David V

    I want to push back on this one just a little. I agree with everything you've said here. However, I think that the meme doesn't necessarily mean that ACB would still adhere to the 3/5 Compromise. It could be read to mean that we shouldn't be so enamored with the Constitution given that it was written by people who believed black people were worth 3/5 of white people. That's a more defensible position, even if I don't agree with it.

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    1. Scott Lauck

      I don't think that's what the 3/5ths clause meant. It was effectively a penalty imposed on the South for treating some of their as property. Constitutionally, slave states were regarded as smaller than they actually were, giving them less representation in the House and the Electoral College than they otherwise would have had.

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      1. Avatar photo
        Frank Vergden

        I think you're both wrong in your understanding of the history. The slave states were seeking to have slaves counted in full for the purposes of apportionment while the free states wanted them to not count at all. It was not a penalty and it was not a statement about the moral worth of slaves as people. It was, as the phrase "three fifths compromise" suggests, a compromise. While it obviously does not comport with our moral values, it would be incorrect and distorting to characterize it as a moral statement.

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        1. Scott Lauck

          I agree that it wasn't a moral statement, and it clearly had more to do with the power struggles of the original states than fighting the evils of slavery. But, however imperfectly, the 3/5ths clause at least recognized that slaves were in fact people. I can't see how it would have been better to let the South get 100 percent of the electoral benefit from slaves while granting them zero percent of the rights. And I also can't see how it would have been better for the founders to have agreed that counting slaves as people was inherently ridiculous.

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        jhc

        I agree with @DougAz that the 3/5 provision was a gimme to the southern colonies to grant them additional House seats. It kept them in the 'confederation' while it turned into a nation, in other words.

        This 3/5 travesty was why there was a civil war 80-odd years later and why we're stsill dealing with all the consequent damage to the current day.

        I will differ with DougAz on his "slave owning Christian southerners" phrase, tho, since it seems like a gratuitous slam on religion. Maybe it wasn't intended that way; maybe "slave owning" & "Christian" were intended as an ironic contrast.

        That said, it was primarily non-slave owning Christian Northerners who formed the Abolitionist movement. It's a long list that I won't try to re-create here. And don't forget the evangelical Christian, William Wilberforce, or the Anglican clergyman John Newton, both Christians and abolitionists in Britain.

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      3. Avatar photo
        DougAz

        I don't follow you here Scott. First, slaves were considered not human, not people and were not endowed by their Creator with Inalienable Rights.

        Slaves were Property. So 3/5ths was just another demand by slave owning Christian southerners upon the Northern states to
        A. Gain leverage for the Southern efforts vs the British
        B. To count Property for the sole sake of additional Representatives.

        It was atrocious and genocidal in any construction.

        I don't see 3/5ths as a penalty. It was a gift to slave owners

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        1. Avatar photo
          Luke Thompson (not that one)

          The 3/5ths Compromise went both ways. It reduced the representation granted by slaves by 2/5ths, but it also explicitly recognized them as people. The 3/5ths part is the one that was a concession. Abolitionists wanted 0.

          (Also, they weren't trying to gain leverage against the British by the time the Constitution was presented.)

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        2. Avatar photo
          Jason Gibson

          as you know doug i don't often agree with you. but you are are spot on in this case

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