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Let's Hear it for Original Intent

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Antonin Scalia ---Still with us, even from the grave.
Antonin Scalia ---Still with us, even from the grave.
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"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)


As the Trumpublicans© bull their way to an extra Supreme Court Seat*, you are going to hear a lot about "Original Intent." "We want to make sure that the majority of Justices on the bench [would that they could be ALL ours] are committed to the Doctrine of Original Intent." That is that the Constitution should be interpreted in the context of the meanings of the language in which it was written over 230 years ago. The most prominent recent avatar of this approach was Justice Antonin Scalia. He was clearly devoted to the doctrine of "original intent" --- except when for political reasons he wasn't. See, e.g., his majority opinion in "Heller," on gun control, which opened the modern floodgates for the NRA and the gun industry for which they are the shills. The Second Amendment begins with the words "A well-regulated militia." Giving permission for private ownership of guns in the home had nothing to do with militias, well-regulated or not. But Scalia had the votes, and away he went.

In this context, let's take a look at the Doctrine of Original Intent in terms of the Court and its powers. Everybody takes for granted that the Supreme Court is a co-equal branch of government, actually a little bit more than co-equal. That is because it has the power to declare actions of the other two branches "unconstitutional," and thus make them null and void. Which is quite a bit of power. Surely that power is clearly written into the Constitution, is it not? Well, it's not. The balance of this column will show a) that indeed it's not and b) how, nevertheless, it came to be, functionally.

In 1996, under the pseudonym "Johnathan Westminster," I published a book entitled "The 15% Solution: A Political History of American Fascism, 2001-2022." In 2013 I published a 3rd version (not a third edition) of the book under the title "The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022 ." (Actually, if Trump is reinstalled as President --- note I didn't use the word "win" --- that is precisely what is going to happen, more under Barr than under Trump [which will be the subject of another column shortly down the road].) That book, with an eye-catching cover if I do say so myself (although I did not design it), is advertised with every one of my OEN columns, towards the end of each.

In the plot of the book (which I wrote in 1994-95) control of the instruments of government get tighter and tighter for the Right. One venerable institution which could get in the way, even though the Right has a major majority, is the Supreme Court. So, a case comes up (it's school prayer case, actually, sponsored by the old Southern Racist-Rightist Jesse Helms, see the Postscript at the end of this column) that gives the Court the chance to do away with the powers of judicial review. A majority decision written by Chief Justice Steps (Scalia, It., get it?) reviews the cases that in the early 19th century formed what came to be known as "judicial review," and gave the Supreme Court that "over-rule/declare-Unconstitutional" power. Which, in fact, you may be surprised to learn is nowhere to be found in the Constitution's Article III (which defines the Supreme Court) or anywhere else for that matter. So in my book Chief Justice "Steps" proceeded. And here, with introductory material, is his (fictional, do recall) opinion in the case, "Anderson v. Board of Education," from Chapter 5, of the book (as fictionally summarized in the Supreme Court Bulletin of the time, which is a real publication).


Summary of the Decision (Supreme Court Bulletin [fictional])

"Supreme Court Has No Constitutional Review Authority"

Anderson v. Board of Education, Cer­tiorari to United States Court of Ap­peals for the Third Circuit.

No. 101"11. Argued October 31, 2002Decided May 13, 2003.

Petitioner, a parent acting on behalf of her minor child, brought a civil ac­tion against the Board of Education of the state of New Jersey seek­ing to pre­vent it from enforcing a law passed dur­ing the 2001 ses­sion of the State Legis­lature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Su­preme Court. With­out arguing the merits, respon­dent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, gener­ally known as the "Helms Amend­ment [1]," the U.S. Su­preme Court did not have ju­risdiction in this case.

Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Fur­ther, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its "constitutionality."

(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: "The judicial power shall extend to all cas­es, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affect­ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to contro­versies to which the United States shall be a party; to controversies between two or more states."

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Steven Jonas, MD, MPH, MS is a Professor Emeritus of Preventive Medicine at StonyBrookMedicine (NY) and author/co-author/editor/co-editor of over 35 books. In addition to his position on OpEdNews as a "Trusted Author," he is a Senior Editor, (more...)
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