The following essay was written and completed in the days preceding the sudden unexpected death of Judge Antonin Scalia. So I dedicate this essay (and another one, previously composed) to his outrageous memory. Judge Scalia described himself as a “textualist” – one who believes that “[it] is the law that governs, not the intent of the lawgiver”. Judge O.W. Holmes described textualists as those who say, “We do not inquire what the legislature meant, we ask only what the statutes mean.” With respect for the scholarship of Judge Scalia, I submit the following accidentally timely essay, and one other directly relevant, certainly more important essay, each of which catch me employing truly “textualist” argument, such as was professed by Judge Scalia. (Scalia himself clarified that “textualism should not be confused with so-called strict constructionism, which brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be.”) Read it only if you can appreciate the irony of someone like me honoring the spirit of Antonin Scalia. Both of them are direct, concise, easy reading. And the one that follows, below, is also light-hearted.
The Preamble and the seven Articles of the U.S. Constitution employ @ 4500 carefully chosen and well-written words to establish the framework for a revolutionary new government. It was compromised, and it wasn’t perfect, but the Constitution itself was actually pretty good, considering who did and, more importantly, who did not write it, and the historical circumstances. The first three Articles outlined the three branches of the government that it was establishing. Article I outlined the legislative branch, Article II the executive branch, and Article III the judicial branch.
Section 1 of Article III states in two sentences, “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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, etc…”
Back in the late 1700’s, writers using the English language seemed to capitalize the first letter of words in the middle of sentences quite a bit more liberally and freely than we do today. They capitalized the first letter of words where we today never do that. Read the beginning of section 1 of Article III again, or any other passages in the Preamble and the Articles, to see what I mean. We in the 21st century would certainly not capitalize the first letter in the words, “Power”, “Offices”, or “Behavior” for example. But the Founders did. If you read the entire 4500 word original text, you’ll find hundreds of words with the first letter capitalized, none of which we today would capitalize. Conversely, I doubt that you will find a single word in that entire text, the first letter of which the Founders did not capitalize, but which we always capitalize today.
Well. Maybe I’m wrong about that last statement. Hmmm. I think there is one single word in the entire U.S. Constitution, as originally ratified, that the Founders did not capitalize, but which we modern Americans have been trained to always capitalize, wherever it may appear. That’s strange. Why would we do a linguistic about-face like that? Can you think of that rare phrase in which we moderns capitalize the first letter wherever it appears in a sentence, but which the archaic Founders did not? I’ll spare you the agonizing search. That anomalous phrase is in the first sentence of Article III, quoted above. It’s the phrase “supreme Court”. The Founders never capitalized the first letter of the word “supreme” when they established the supreme Court.
You see, the “judicial Power” can not, in any way, be construed as “supreme” to the “legislative Power” or the “executive Power” of the government. The “supreme Court” certainly can not be superior to the sovereignty of “the People”, who had established (pursuant to the Preamble, and to the Declaration and the War of Independence) the Constitution and the three branches of government. The U.S. Constitution establishes the “supreme Court” as “supreme” only in relation to any “inferior Courts”. And section 1 of Article III helps make that clear.
You might also notice, and reflect for a moment, on the fact that officers of the “supreme Court” are referred to as “Judges”, not as “Justices”, by the United States Constitution. I’ve had trouble referring to officers of the supreme Court as “Justices”, whenever I think of some of the outrageous frauds and injustices that they have imposed upon people and upon our Constitution. For example, consider the blatantly and transparently unconstitutional deciding Opinion expressed by Judge Taney in 1857, declaring that people of African ancestry “… had no rights or privileges but such as those who held the power and the Government might choose to grant them.” This despite the incontrovertible facts that (1) the U.S. Constitution considered such “beings” to be “Persons” in the meaning of the Constitution, and that (2) the Constitution described certain specific and general rights of “Persons”. Taney felt incorrectly that only “citizens” had Constitutional rights. But despite widespread, brutal, massive, long uncorrected violations of their Constitutional rights, as exemplified by Judge Taney’s notorious official Opinion of the Court – which ultimately helped make the Civil War necessary – slaves (as well as free Africans) in the USA always possessed at least some Constitutional rights – rights which were long denied to them, by figures and forces such as Judge Roger Taney of the U.S. supreme Court. Taney’s legal rationale was exactly contrary to a “textualist” analysis.
For another example, during a 2005 supreme Court appointment, I urged that candidates should be rejected, unless they themselves rejected the unjustifiable legal theory that a corporation is a Constitutional “person”. Unfortunately, no one with the authority to nominate, advise, or consent to a supreme Court appointment, and no one in the mass media thought to publicly ask such a question. The questioneers were focused instead on looking good, and on exploiting divisive partisan hot-button wedge issues. Eleven years later, it may be that we the people will now, finally demand that this question move to the highest priority, in qualifying a candidate for the supreme Court.
The second, and far more important essay, which I now wish to also dedicate to the memory of Judge Antonin Scalia; as well as to the larger than life, yet down to earth character and courage of underground-railroad-riding and-bootstraps-lifting citizen-scholar-organizer Frederick Douglass; also employs (among other things) a solid textualist argument in presenting an unequivocally radical and unassailable Constitutional proof – one that serves We the people and our 21st century needs.