Isn't the role of taint here kinda more subtle. Namely that the taint is evidence that this law didn't really correspond to a general view of the scope of a right because it was motivated by this overriding racial animus and/or was understood not to in practice impinge on the rights of whites?
Even if you didn't think there was anything immoral/tainted about japanese internment I think you would still be justified in treating those laws and Korematsu itself as not being very indicative about the general background idea of the scope of rights (at least pre-war).
I presume the background argument for tradition mattering for textualism is something like: we are trying to divine the original public meaning of a constitutional provision and seeing that people around the time were willing to restrict something -- without worrying about whether it conflicted with said provision -- is some evidence those people didn't understand the provision to cover that activity.
Seems to me the reason the black codes aren't a good fit to that is the suspicion that southern whites of the time were happy to pass laws that only people who could pass some test could vote -- confident that in fact those laws wouldn't be used against them.
Justice Jackson's view-- that the LA law was a permissible firearms regulation impermissibly used to oppress black people--seems most likely to be correct. Even more importantly, how can the historical record itself ever adjudicate between those two plausible interpretations (i.e., that the LA law was an impermissible firearms regulation versus being a permissible firearms regulation that was used in an impermissible way)?
I'm confused by the continuity argument. This confusion may reflect my lack of understanding of the THT test and its appropriate application. I thought the THT test was to be devoid of any moral judgments or modern day views of how we think the world should work. It was only supposed to be based on some "unable to be adequately defined" determination that enough prior laws were analogous enough to a modern day law and those prior laws had to be in place around the first or second founding.
Isn't the role of taint here kinda more subtle. Namely that the taint is evidence that this law didn't really correspond to a general view of the scope of a right because it was motivated by this overriding racial animus and/or was understood not to in practice impinge on the rights of whites?
Even if you didn't think there was anything immoral/tainted about japanese internment I think you would still be justified in treating those laws and Korematsu itself as not being very indicative about the general background idea of the scope of rights (at least pre-war).
I presume the background argument for tradition mattering for textualism is something like: we are trying to divine the original public meaning of a constitutional provision and seeing that people around the time were willing to restrict something -- without worrying about whether it conflicted with said provision -- is some evidence those people didn't understand the provision to cover that activity.
Seems to me the reason the black codes aren't a good fit to that is the suspicion that southern whites of the time were happy to pass laws that only people who could pass some test could vote -- confident that in fact those laws wouldn't be used against them.
Justice Jackson's view-- that the LA law was a permissible firearms regulation impermissibly used to oppress black people--seems most likely to be correct. Even more importantly, how can the historical record itself ever adjudicate between those two plausible interpretations (i.e., that the LA law was an impermissible firearms regulation versus being a permissible firearms regulation that was used in an impermissible way)?
I'm confused by the continuity argument. This confusion may reflect my lack of understanding of the THT test and its appropriate application. I thought the THT test was to be devoid of any moral judgments or modern day views of how we think the world should work. It was only supposed to be based on some "unable to be adequately defined" determination that enough prior laws were analogous enough to a modern day law and those prior laws had to be in place around the first or second founding.