Column No. 93 By Steven Jonas, MD, MPH - January 19, 2006
Note to the reader: Last September 8 TPJ ran the original version of this column. A revised version was published in Inquirer, the monthly publication of the Long Island (NY) Secular Humanists, in the November issue (see page 5) (and is used here with their kind permission). With the Alito hearings upon us and with the Georgite mission of Constitutional destruction now out in the open through the revelation of the extra-judicial domestic spying apparati, I thought that it would be useful and of interest to run it again in this space.
The Republican Religious Right (RRR) in the United States likes to tell us that Constitutional jurisprudence as conducted by the nation’s courts has been all wrong since the time the Supreme Court started coming around to the support of the New Deal in 1938. This jurisprudence has, they tell us, been dominated by “activist,” “liberal” judges who just “impose their own views on the law, in violation of everything good and sound.” What is needed in applying the Constitution to the law, policy, and policy-making, according to the RRR, is a return to what they call the “Doctrine of Original Intent.” This Doctrine can be defined as taking the Constitution literally, as assuming that its words have a plain meaning and that they should be followed in applying it to both the law and the structure and functions of government that it describes and defines.
The RRR holds up Justice Antonin Scalia as their primary avatar of this Doctrine. In the July and August issues of Inquirer, its’ Editor/Publisher Mr. Gerry Dantone considered Scalia’s position on the primacy of “God” and organized religion in public life and what its relationship to the law should be. Proceeding from that foundation, it is useful to examine further how Scalia himself views the Constitution, and indeed how he applies the Doctrine of Original Intent to it. As Mr. Dantone showed, Scalia holds that “God” and organized religion should be at the center of public life, of government, and of Constitutional interpretation. Examining his many speeches, writings, and Supreme Court opinions on various aspects of this subject, it will come as a surprise to many observers that it is clear from his own words that in fact that Scalia himself does not follow the Doctrine of Original Intent.
In relation to the Constitution and its interpretation the most important indicator of Scalia’s non-adherence to the Doctrine is his oft-state belief in something he calls “Natural Law,” standing above the Constitution. For Scalia (as documented in the Dantone articles referred to above) “Natural Law” means “God’s Law.” For a further example, consider the following words of the Justice, as quoted by Sean Wilentz ("From Justice Scalia: A Chilling Vision of Religion's Authority in America," New York Times (republished in Truthout), July 8, 2003). Wilentz wrote: “Beginning with a quote from St. Paul as his thoughts are represented in the New Testament, Scalia had this to say about the subject (2002): ‘For there is no power but of God [St. Paul is said to have said]; the powers that be are ordained of God. . . The Lord repaid -- did justice -- through his minister, the state . . . [This was the consensus] of Christian or religious thought regarding the powers of the state… That consensus has been upset, I think, by the emergence of democracy . . .”
In practice, thus Scalia goes against his own words, for nowhere in the Constitution are any such thoughts or principles to be found, either in its plain language or in any conceivable interpretation of it. He has told us on numerous occasions, the above being but one example, that there no “inalienable rights of man,” for the Framers the basis of Constitutional Law. According to Scalia there are only rights that are granted by God. Since God does not often speak to us directly, in practice that means any individual rights are only those granted by God’s representatives on Earth, in accordance with what they think God’s wishes are (that is unless He or She speaks to such representatives, like Scalia or George Bush perhaps, in private). "Natural Law," the “law(s) of God,” are thus whatever Church authority, such as Scalia’s apparent favorite, the Pope, happens to tell us they are. In reality, this, that is “Natural Law,” standing above the Constitution, is nothing more or less than the rule of man, not law. Again, although I may have missed it, I cannot find anything like Scalia’s jurisprudence anywhere in the Constitution. Nor, by the way, can I find the word “God.”
I happen to believe that, following its own literal meaning, the Doctrine of Original Intent is precisely what the Framers had in mind. Contrary to Scalia, and Clarence Thomas, and the newly minted appellate Judge Janice Rogers Brown who believes that regulation of the economy is a worse institution than human slavery, I am actually a firm believer in following the plain language of the Constitution. That text tells me indeed what the Original Intent of the Framers was, and I think that it should be followed. Surprised? Well, folks, if you read the Constitution clearly, it clearly says “here are some specifics, some definites,” while in other places it clearly says, by being ambiguous, “interpret me please.” There is no evidence that the Framers were dunces, did not know how to use the English language, and thus were not being purposeful in how they used it. As theocratic Georgite fascism comes barreling down the track, it’s all we’ve got to defend ourselves with. Following are some examples of the application of the Doctrine.
Let’s begin with the Preamble, that almost always forgotten, ignored, suppressed part of the Constitution which tells us in plain language what the role of government is, according to the Framers: “We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” That’s a pretty broad, positive, set of tasks is it not? A major characteristic is ambiguity, begging for interpretation one might say, is it not? And if it doesn’t beg for interpretation, then precisely how one would precisely interpret it? The Original Intent here is quite obvious: “Interpret me --- and apply me --- please.”
On the other hand we next come to Article I. In Section 1 it says: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It doesn’t say, as the Georgites would have it, “some legislative powers are vested in the Congress, and the rest in the Executive, subject to the whim of the latter.” Yes, the Original Intent is obvious here too. Sections 2-7 of Article I are mainly about matters of organization, voting, and discipline for the legislative branch, and then we get to the famous Article I, Section 8. It says, in part: “The Congress shall have power to… regulate commerce with foreign nations, and among the several States, and with the Indian tribes…” The term “regulate commerce” is nowhere defined. Again ambiguous, no? It, like the Preamble, begs for interpretation. The RRR would have you think that the Constitution puts strict limits on how the Congress may interpret and apply that clause. Again, I have looked hard for it, but I just cannot find any such language. Again, the Original Intent is obvious here; “interpret me, please.” On the other hand, the Constitution is pretty specific about one power of the Congress: “To declare war.” That one doesn’t seem to be open to interpretation, does it? Original intent strikes the RRR again.
Then there is Article I, Section 9, which says in part: “The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” That seems pretty specific too. Habeas Corpus, according to Original Intent, is to be suspended only in times of rebellion or invasion, and only the Congress may suspend. The President, for example, cannot do it on his/her own authority, nor can Congress authorize its abolition except under those two specific circumstances, certainly nothing as vague as some “war against terror.” The Original Intent is again pretty obvious here, is it not?
Going on to Article II, Section 2 says that “The President shall be Commander in Chief of the Army and Navy of the United States.” Again, vague. Nowhere to be found is a definition of “Commander-in-Chief.” It could mean “General-in-Chief,” as the Georgites would have us believe. But it could just as easily mean that final military authority is simply to be subject to civilian rule, a logical interpretation based upon the historical experience and knowledge of English history of the Framers. Nevertheless, interpretation is invited (although according to the Doctrine of Original Intent, since the words “Air Force” do not appear in it, the President has no authority over that branch of the armed forces). Yes, under the Constitution Bush, in contradistinction to every previous occupant of the White House other than Lyndon Johnson who personally picked out bombing targets in Vietnam, could be what he thinks he is, General-in-Chief.
Article III, Section 1 states that the “judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” While there is a list of powers of the Supreme Court, nowhere to be found in Article III is any description of the power of Judicial Review over the actions of the other two branches of the government. In the early 19th century, Chief Justice John Marshall and his colleagues invented the concept, using some fairly complex legal reasoning and logic to arrive at it. They thus interpreted the Constitution, for nowhere in it is there any plain language or other evidence “original intent” to provide for judicial review. Over the course of two decades, the Marshal construction was accepted by the rest of the polity. (Jefferson was strongly opposed to the idea but even he eventually went along with it.) But it is nowhere to be found in anything approaching explicit language in the Constitution. Therefore, we can hardly say that granting that power to the Court was part of the Original Intent of the Framers. If Scalia were to be consistent, he would have to advocate doing away altogether with the Supreme Court as the arbiter of the Constitutionality of acts of both the Executive and the Legislative Branches. But I don’t think that anyone has ever accused Scalia of being consistent. After all, consistency is just the hobgoblin of small minds, isn’t it?
Moving right along, Article V is quite specific about which body can amend the Constitution. It is not the Executive Branch. Article VI is quite specific that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” (see former White House Counsel and now Attorney General Gonzales and the “quaint” Geneva Conventions, by a provision of the Constitution itself, part of it). The Original Intent is clear once again. I’m sure that if you have lasted this far you get my drift.
Turning to the Bill of Rights, the First, Fourth, Fifth and Sixth Amendments are pretty explicit about the guarantees of the rights with which they are concerned. For example, the Fourth provides protection against unreasonable search and seizure, the Fifth guarantees the protection of due process of law, and the Sixth guarantees jury trial in criminal cases. All happen to have been over-ridden by the Patriot Act, which Scalia has voted to uphold. Finally, there is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” My, my, my, how vague, how broad, how interpretable. No wonder that the authoritarian Judge Bork (you remember him), he who was, and is, supposed to be such an avatar of the Doctrine of Original Intent, described the Ninth as an “inkblot on the Constitution.” It is such an inconvenience for the RRR. After all, this Amendment is wide open to interpretation. For example, it could even be interpreted to mean that there is something called the Right to Privacy.
One must then come to the following conclusion. Yes, the framers did intend that their document and its meaning be followed in our country down through history, as written. Given the presence of ambiguous language in certain places, it is clear that part of that intention was to provide within it the means for dealing with changing times and circumstances. Thus one must conclude that if they had been asked “do you believe in the Doctrine of Original Intent?” they would have replied pretty much in unison as follows:
“Oh yes we do. That is why we made certain clauses as specific as we did, especially those clauses guaranteeing personal freedom and limiting governmental powers in relation to it, as well as those clauses dealing with governmental actions concerning life and death, such as war and making treaties. That is why also we made other clauses vague and open to interpretation, especially those dealing with commerce and industry and economic affairs. For those are areas in which government must have flexibility to deal with changes in human abilities to deal with the physical means of life. That times and needs change too is why we created the Ninth Amendment, in reference to personal rights and liberties. Finally we were intentionally broad, very broad, with the Preamble. There is so much good that government can do, and we want to make sure that ours focuses on it.”
And so, my friends, as the RRR takes over the Supreme Court and Bush runs roughshod over the Constitution, let’s hear it for the Doctrine of Original Intent, as it was originally intended, reading the plain language written by the Framers themselves.