Column No. 119 By Steven Jonas, MD, MPH - August 17, 2006

On August 3 we began a reconsideration of the mode of Constitutional interpretation known as “Strict Constructionism,” or the “Doctrine of Original Intent.”  We showed clearly (I hope) that its current primary judicial avatar, Antonin Scalia, himself actually engages in anything but, when it come to the Constitution.  In this column, we turn to the plain language of the Constitution itself.

A major theme to consider is the contrast found in the document between those sections that have ambiguous meanings and those that have very clear ones. If one reads 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.

We begin with the Preamble, that almost always forgotten, ignored, suppressed part of the Constitution.  It just happens to tell us in plain language what the role of the government as established by the Constitution 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 of the statement is its 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.”  It doesn’t say “well, Congress can pass all the laws its wants to, and the President, in something to be called a ‘signing statement,’ can interpret them any way he wishes to.”  Yes, the Original Intent would appear to be obvious here too.

Sections 2-7 of Article I are mainly about matters of organization, voting, and discipline for the legislative branch.  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.

For example, Janice Rogers Brown, confirmed for an Appellate Judgeship last year after a very hard Georgite push in the Senate, believes that any regulation of the economy, undertaken by the Federal government under the interstate commerce clause since the time of the New Deal, is a worse institution than human slavery (she is an African-American it so happens).  Again, I have looked hard for it, but I just cannot find any language in the Constitution putting limits on the interpretation of that clause.  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?  It doesn’t say, “to declare war except when the President does, or wants to, or labels some military action that he/she has initiated as a ‘war.’ “Strict Construction” 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 Strict Construction, is to be suspended only in times of rebellion (which is when Lincoln did it) or invasion, and only the Congress may suspend it.  According to the plain language, the President, for example, cannot do it on his/her own authority (Lincoln, acting unconstitutionally to be sure, did it on his own authority), nor can Congress authorize its abolition except under those two specific circumstances, certainly nothing as vague as some “war against flanking maneuvers” (sorry, I mean “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 an absolutely strict interpretation, 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.  But then again, he might not be.  But even if he is General-in-Chief, there is nothing in the plain language of the Constitution that would then empower him to violate any other provisions of document on his own authority, at whim.

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 of “original intent” to provide for judicial review.

Over the course of two decades, the Marshall construction was accepted by the rest of the polity. (Jefferson was at first strongly opposed to the idea, but even he eventually went along with it.)  However, it was the result of the application of interpretation to some of the interpretable, non-specific language in the document.  We can hardly say that granting that power to the Court was part of the Original Intent of the Framers, unless we rely on the concept that by being vague, for certain sections they were inviting interpretation.  If, for example, Justice Scalia were to be consistent with what he says he believes in (although he obviously doesn’t, see last week’s column) and insist that interpretation has no place, nowhere in the application of the Constitution, 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 words under Strict Construction are quite clear once again.  This particular provision of the Constitution was used in part by that slender-reed majority of the Supreme Court to rule against the Georgites in Hamdan.  They said yes, indeed, Article VI makes the Geneva Conventions part of the Constitution and therefore the President cannot violate those agreements.  They did not say that he could seek to renegotiate them of course.

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 and requires judicial warrants for making searches, 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 Bush-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 Strict Construction, 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.”

In the final column is this series, we shall examine how Bush himself interprets the Constitution, supposedly using the Doctrines of Original Intent and Strict Constructionism.