The Founders and Slavery

[Paul Finkelman]

It strikes me that West was making two points.  First, that he had a pipeline to what the founders intended, and therefore we should accept his argument (assuming that what they intended mattered at all, but that is an entirely different debate, although it is worth noting in passing that at least Madison is pretty clear in both his actions and his statements in debate that the intentions of the framers don't carry any special weight or
any weight at all);  his other point, it seems to me, is that in employing people we should be allowed to discriminate on the basis of religion.

While obviously my pointing out the problems of slavery and liberty among the founders hit a nerve with West, my main point was that even if we knew what the founders wanted, and even if we should be ruled by their intentions, it is impossible to figure out how we would apply those intentions in a highly pluralistic society with many more religions than the founders could have imagined.  I truly doubt they ever thought Moslems would out
number Anglicans (or Episcopalians) or that Roman Catholics (Papists) would out number every separate sect of Protestants.

If I am misreading West, and he is not advocating a constitutional standard that allows religious bigotry in hiring, then I apologize.  Perhaps he can offer a clarification.


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu