Couple Morning Thoughts (Spoiler Alert)

I found a free paperback copy of LM Montgomery's Anne of Green Gables. Some years back, as an adult, I read that amusing book about a red-haired girl.  I also read the sequel and recall reading at least one other in the series.  She had additional ones, including a collection that was published long after her death.  

She also wrote lots of short stories, a trio of "Emily" novels, and various other stand-alone novels.  A few of the books are adult novels, including The Blue Castle, about a twenty-nine-year-old woman.  This is a fun novel about a quiet, unhappy woman who thinks she is going to die, so decides to stop worrying about what others think.  

It has an extended passage that basically talks about a year she had in her "blue castle" and then has a happy ending.  

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I don't want to say much more now about the 14A, sec. 3 article I referenced in my recent SCOTUS post.  Eric Segall's blog post, which I referenced, dropped.  A few words.  

I am not an originalist and do think we have to apply the Constitution as we understand things today, with prudence and current democratic needs factoring in.  I respect that general argument.  I think others also do more than some "pure originalism" (see, e.g., two people at another blog), noting that originalists tend to do in the end anyhow.   

Prof. Segall flags Chief Justice Chase's application of the provision as a rejoinder to the article.  But, Chase -- Segall knows this from his citation of the Legal Tender Cases in his book -- is not free from "values judging." And, people have spelled out (including Mark Graber, who I cited, who argues that Chase simply didn't like the provision, and was not a fair player here) why we should take his interpretation with a hefty grain of salt. 

What does Segall do?  As usual, we get a bit of "originalism is okay if done right" with this comment:

And he did so because he found the consequences intolerable (every official act by the thousands of Southern government officials who participated in the rebellion would be called into question). 

I don't know what this means, actually, but Chase "did so" for some dubious reasons.  See also his overall continual delays in prosecuting Jefferson Davis, which has a lot of politics and policy judgment mixed in.  I am somewhat aggravated about this attack of originalism that involves a confused analysis of what the actual history is.  It just confuses things. 

As Graber et. al. argues, the "authors" Chase went against were not the two who wrote the law article.  It was the actual framers of the amendment.  This is not a big "gotcha" about originalists refuting "someone there."  The ability of people "there" people wrong is suggested by the 5-4 Slaughterhouses Cases.  

Anyway, I'm fine with worrying about "consequences" and think various people who talk about the provision do factor that in.  Plus, some examination of the text and history will help us decide the question, especially since such arguments are repeatedly used by all sides.