If we’re going to use “originalism” as a standard as this UF law student proposes, shouldn’t “We the People” in the Preamble mean just property owning white men?
“We the People” certainly didn’t apply to women 225-240 years ago.
1. It doesn't matter what "we the people" refers to. The preamble is like the Declaration: they are about the vibes and have no legal effect.
2. This isn't how originalism works. Or certainly not how it's supposed to work, and one would think the judge teaching the class would know that.
A. There are basically two species of originalism: original intent and original public meaning. In terms of original intent, the matter is clear: the Founders intended the constitution to apply to all people regardless of their race or color. That's not to say that everyone was given the same rights in 1789, but the constitution protected everyone. Women couldn't vote, but they absolutely could claim the protections of the 4th Amendment in a criminal prosecution. We didn't have the exclusionary rule yet, so that defense wasn't particularly helpful but it could be brought by anyone.
Part of the reason that women weren't allowed to vote is that there was no real doctrine of voting rights back then. This is the basis for Clarence's hostility to all voting rights; they weren't contemplated at the outset. But that's not the same thing as the constitution not applying; it just means that the constitution didn't confer rights to anyone in this area. Obviously slavery was an exception in some cases, but free blacks still had rights until Dred Scott. They couldn't be conscripted into slavery, for instance.
B. Original public meaning originalism is even worse for the law student. "We The People" would have meant everyone. Nobody thought in terms of "We The White Men," nor would they have criticized the terminology just because reality didn't live up to it. Hell, MLK would talk about how the constitution wrote a promissory note it had not honored. He was right in that assessment. Nobody would have said that We The People didn't include women or minorities. They would have said that of course women couldn't vote because they are too emotional, undereducated, whatever. The inferiority was seen as a product of nature, not of positive law.
3. The law student's argument was just nonsense all around. Even if we disclaim the distributive or social justice factors, and even if we're talking about a short period of time, it's still a horrible argument that cannot be taken seriously. I cannot imagine a paper making those arguments that would have received a passing grade from me.
