Column No. 75 By Steven Jonas, MD, MPH - September 8, 2005
Next week the hearings on the nomination of Judge John Roberts to the Supreme Court are beginning. From the point of view of anyone concerned with the preservation of Constitutional Democracy in the United States (as well as a whole array on individual rights and liberties that have supposedly become part of settled Law in our country) the primary focus of The Political Junkies.net, this man has a lot going against him. The case against has been well and widely reviewed in the liberal and progressive media. I would like to visit a different aspect of the Roberts nomination that has not received as much play on our side. That is how it relates to the doctrine of “Original Intent,” variously known as “Original Intention,” “Literal Interpretation,” and the like. Simply stated, this doctrine says that the Constitution should be interpreted by the Courts as it was written, according to its plain language, without interpretation that is simply the views of one particular interpreter or another, according to his or her personal understanding, predilections, or vision of the law.
A prime contemporary promoter of this doctrine is one of Bush's two favorite Supreme Court Justices, Antonin Scalia. He talks all the time about how he is bound by the words of the document, as they were written, at the time they were written, and that as much as he might like to, he cannot do anything else and be true to what he sees is the calling and the role of a member of the Supreme Court.
It is fascinating that Scalia goes against his own words in practice, for he has told us on numbers of occasions that sees not any “inalienable rights of man,” for the Framers the basis of Constitutional Law, but 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 in private).
And so, as noted by Sean Wilentz ("From Justice Scalia: A Chilling Vision Of Religion's Authority in America," New York Times, July 8, 2003):
“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. . . . The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible.’ “ Since not even the word “God” much less any statement that its authority derives from some divinity (whether St. Paul said so or not) appears anywhere in the Constitution (at least I haven’t ever found it and I have read the document numerous times), Scalia’s philosophy of government hardly is in accord with his claim that he thinks and rules on the Court in accord with “Original Intent.”
But then Scalia isn’t always so transparent. Sometime he, and the other Bush favorite Clarence Thomas, talk about something they call “Natural Law” as standing above the Constitution. (Janice Rogers Brown, the new Appellate Court Judge, she of “economic regulation is worse than slavery because regulation of that type [not of personal behavior of course] is nowhere specifically mentioned in the Constitution” fame is a big fan of “Natural Law.”) That doctrine holds that there is no such thing as individual "rights," much less inalienable ones, and whatever "privileges" anyone has are grants from God.
According to such a belief, these grants come under what was called "Natural Law" (that is the law[s] of God), as, of course, interpreted by whatever Church authority happens to be interpreting them. (And boy, were many bloody religious wars fought over that one!). The latter is, of course, in reality nothing more or less than the rule of man, not law, for the "Natural Law" is what any particular man, say Justice Scalia, says it is. It was the Enlightenment that changed all that, with both the concept of "inalienable rights of man" and the concept of the rule of law, independent of the mind of any particular man. Scalia has taken direct aim at the Enlightenment in speeches, declaring that its concept of democracy is an unfortunate one, in that it pushes God out of government. Again, although I may have missed it, I cannot find anything like Scalia’s jurisprudence anywhere in the Constitution.
Contrary to Scalia, and Thomas, and Rogers Brown, I am actually a firm believer in following the plain language of the Constitution, indeed what the text tells me was the original Intent of the Framers. Surprised? Well, folks, as Georgite theocratic fascism comes barreling down the pike; it is all we have got. 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 set of tasks is it not? And 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 would one precisely interpret it. The Original Intent here is quite obvious: “Interpret me, please.”
On the other hand we next come to Article I, Section. “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, and by the way we’ll decide which are ours.” Yes, the Original Intent is obvious here too.
Sections 2-7 of Article I are mainly about matters of organization, voting, and discipline, and then we get to the famous Article I, Section 8, which says, in part: “The Congress shall have power to
. . . regulate commerce with foreign nations, and among the several States, and with the Indian tribes;” “Regulate commerce” is nowhere defined. Again, ambiguous, no? It, like the Preamble, begs for interpretation. The Right Wing would have you think that the Constitution puts strict limits on how the Congress may interpret 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 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 pretty obvious here too, no?
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.
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. Justice John Marshall and his colleagues in the early 19th century invented the concept, using some fairly complex legal reasoning and logic to arrive at it. Over the course of two decades, it 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 with the Supreme Court as the arbiter of the Constitutionality of acts of both the Executive and the Legislative Branches altogether. (Indeed, that is what Chief Justice “Steps” does do in The 15% Solution, chap. 5.) 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, and 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.” 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 (and I have spoken specifically of the violations of the latter three by the Patriot Act on more than one occasion in this column).
And then 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.” But then again, this Amendment is no less open to interpretation, for example and interpretation that says that there is something called the Right to Privacy, than are a number of other provisions of the Constitution cited above.
One must then come to the following conclusion. Yes, the framers did intend that their document be followed in our country down through history, as written. At the same time, they recognized that times change and needs change. And 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, “oh yes we do. And 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 we move into the Roberts confirmation hearings, let’s hear it for Original Intent, as it was originally intended, reading the plain language written by the Framers themselves.
Correction. In the last paragraph of my original column on the atomic bombing of Japan (TPJ, August 25, 2005) I said: "That the US did use it, once, established a precedent that numbers of Right-Wing American politicians have been tempted to follow right up to the present day (Dick Cheney [oh what a great whipping boy], anyone?). " That was not a true statement. It wasn't just right-wingers at the top end of American Administrations who considered using nuclear weapons. In an article published in Newsday on August 26, 2005, under the title "JFK advised to nuke China," it was stated that: "President John F. Kennedy's advisers urged him to consider the use of nuclear weapons to defend India from an attack from China, according to Cold War audiotapes released yesterday by the Kennedy Library." The advisers in question were Sec. of Defense Robert McNamara and Chief of the Joint Chiefs of Staff Maxwell Taylor. I apologize for the omission.