Original Intent

Antonin Scalia, lately departed Associate Justice of the Supreme Court, will likely be best-remembered for his advocacy of the “doctrine of original intent”.  Under this doctrine, Justice Scalia asserted that modern Americans should be guided by the ideas of the Founding Fathers, as revealed in the precise words of the Constitution of 1789 (as amended).

I mostly agree.  Where I differ with Justice Scalia is in his belief that the Founders – most of whom had legal training and/or significant judicial or legislative experience – would have drawn up the Constitution without reference to the tradition of the English Common Law, under which judges had, for many centuries, “found” new law by applying existing laws to new situations.

 

But that’s an argument for another time.

Today, I want to note that the Republican leadership of the United States Senate, and particularly, the eight Republican Senators on the Judiciary Committee, have announced that they will not consider any nominee to replace Justice Scalia offered by President Obama.

And I’d like to suggest the application of the logic of “original intent”, as enunciated by Justice Scalia, to their refusal.

Now, let’s be clear about this.  There is absolutely nothing in the Constitution which suggests that a President in his last year in office cannot nominate a Justice to the Supreme Court.  

While most of the Founders were still very much alive, President John Adams – who had been defeated for re-election by Thomas Jefferson (and Aaron Burr) – appointed his Secretary of State, John Marshall, to serve as Chief Justice of the Supreme Court.   This appointment is generally considered the best, and most consequential, judicial appointment in American history.

Adams appointed Marshall on January 20, 1801 – months after he had been defeated for re-election and just six weeks before his “lame duck” presidency was due to expire.  The “lame duck” Senate confirmed Marshall one week later, and Marshall officially assumed his duties on March 4 – the day on which his cousin, Thomas Jefferson, was sworn in as Adams’ successor.

So let’s not kid ourselves.  If the Founders had anything like an “original intent” about late-term presidents not appointing justices, no one told John Adams - or John Marshall, for that matter.

But let’s go a step further and discuss the Senate leadership’s refusal to consider any nominee Mr. Obama names. 

Not consider, and then reject that nominee. 

Refuse to consider him.

I’d like to suggest that you take a break here and find a copy of the Declaration of Independence – the original expression of the Founders’ “original intent”.  

Read it carefully.  Not just the familiar parts at the beginning and end, but the long list of grievances which the Founders believed justified them in taking up arms against King George III.

Note the first three grievances, which accuse King George of failing to do his job, by refusing to pass necessary laws, and by interfering with the ability of colonial governments to pass necessary laws.

Note the sixth grievance, complaining of the King’s refusal to permit the elections of colonial legislatures, thus making it impossible for the colonies do necessary legislative work.

Pretty clearly, our nation’s Founders thought a ruler who refused to do his job had forfeited his right to govern, and justified them in rebelling against him.  Four of their first six grievances concerned precisely this – the royal neglect of duty.

Now, ask yourself this:  What do you suppose the Founders would have said about a handful of legislators who announced their refusal to do their job – for the next eleven months – thus leaving the highest court in the land understaffed?

I suggest that, in terms of their “original intent”, the Founders would have considered that the American people are entirely justified in removing those legislators from office.

And since there is no legal mechanism for doing so, I suggest that the Founders would have considered us justified in exercising what they called the "right of rebellion", i.e., removing them by extralegal means.

If necessary.

In the years leading up to the American Revolution, Patriot activists in Boston and other cities often expressed their displeasure with oppressive Royal officers by tarring and feathering them, then riding them out of town on a fence rail.

If the Senate Republican leadership continues to refuse to do its job – by considering President Obama’s forthcoming nominee to replace Justice Scalia – perhaps we should take a page from the late Justice’s book.

Apply the Founder’s “original intent”.

With a bucket of tar and a brush.