Category Archives: Justice Scalia

Justice Scalia is dead…wrong

Justice Scalia is Dead…Wrong

I know what freedom is. I live in a country where I can write those provocative words on the day of the funeral of Justice Scalia and other than hearing a few groans nothing will happen to me. To some degree I have Justice Scalia to thank for that, as well as others in his line in the history of America, many of whom I disagree with. But that does not mean that I buy into their notion of the Constitution. Most of them are wrong…dead wrong.

The Declaration of Independence and the Constitution were writing assignments, largely undertaken by slave holders. One task was to set up a government conceived in “liberty” where about one fifth of the population would be slaves without mentioning the word “slave” or “slavery”. Done. Neither document concerned itself with any rights of women, doing so without mentioning the word “woman”. In 1776, Abigail Adams wrote to her husband…””Remember that all men would be tyrants if they could”. I do not recall her receiving an invitation to the love fests we call the continental congress or the constitutional convention. As I have previously stated in this series, the men who wrote these documents had their own problems to solve, and their results did not benefit the situation of others in their midst.

My particular concern here is for the “originalists” like Justice Scalia and the many dark suited disciples who follow him, who worship the text of the founding documents. The Dred Scott decision was decided by an “originalist” too, one who held that no person of African descent could ever be a citizen United States. That Justice, Justice Taney, understood that the founders were dividers, not uniters. Justice Taney understood that the founding documents that many hold sacred purposely set up different rights for different classes of people. “Originalists” are honoring that tradition.

James Madison, a slave holder of course, thought he solved a problem by setting up the three/fifths compromise in the Constitution. How can a slave can be a person for the parts of the Constitution that benefit Virginia, but not for other parts that benefit the person? It was similar to the solution of Thomas Jefferson in speaking of liberty and rights while owning slaves and thereby destroying the meaning of those words. These two actually perpetrated a hoax onto an unsuspecting America, and we today must still deal with the remnants of their handiwork. The Declaration of Independence and Constitution are more than founding documents, they embrace political philosophies where words are deprived of their common meaning. Women still do not have rights to control their lives under the constitution. That is “originalist”.  There remain many in this country who although are not slaves, have no realistic opportunity to partake of the American Dream. That is “originalist”. The beautiful land and beautiful people of this country continue to be stifled by documents that were not set up to benefit them, but only to benefit others.  That is “originalist”. The original “originalists” set up a system that made their government difficult to change. Let us try. Let us today move past originalism. There has to be something better.

Today’s Lesson on the Constitution 2/18/2016

Today’s Lesson on the Constitution 2/18/2016

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. (Justice Taney Opinion: Dred Scott v. Sanford, 60 US 393 (1856)).


After being out of work for a while I decided I would do what most out of work attorneys do…write a book about something of interest to me. I stumbled on the story of Bill Richmond, who was born a slave in America about 1763 and who became the Mohammed Ali of his time as a boxer in England. As I began my research, I had few preconceived notions about the direction I would take. Like most Americans, I shared the basic admiration for the work of our Founders and wanted them to figure into the story. In my past I had done a lot of reading about the Revolutionary War period, and as a attorney I was fairly well acquainted with the early legal cases that helped form our nation.

I reread the decision in Somersett’s Case, which was a 1772 decision of the highest court of the land, the British Court of Chancery. In that case the brilliant Judge Lord Mansfield ruled that slavery was an odious institution that could not be supported by natural law. It occurred to me that the Founders, as learned men,  must have read this decision and accounted for it in their founding documents. It struck me that for Bill Richmond to succeed in England when he was but a slave in America meant that the British had to be the more civilized of the two places, at least as to the issue of rights for minority populations. The thought crept in…perhaps we were on the wrong side in the American Revolution. And worse, was a desire to maintain slavery a core principle in fighting the Revolution and breaking away from those enlightened of England, like Lord Mansfield, who were questioning the right to maintain the institution?

Eventually my research led me to reread perhaps the most despised Supreme court decision, Dred Scott, quoted above, even though it was decided way past the years of my book. As we today contemplate the legacy of Justice Scalia, who is considered brilliant by some, I am struck by the above language which easily could have come from one of Scalia’s opinions. Instead it was written by Justice Taney in a decision held to universal condemnation since it put forth the notion that those of African descent were not and could not be a part of “we the people” and that almost any law passed by Congress which suggested otherwise was unconstitutional. The concepts of “original intent” and Scalia’s “originalism” are not new…they are the long standing bogus religions of those who really do not understand the promise of America.

It gets worse. Justice Taney requires us to make a choice. He quotes the Declaration of Independence and then puts forth an incredible notion that I took very personally.

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. (Justice Taney in Dred Scott)

As I contemplate the Dred Scott opinion I agree with Justice Taney that each American has to choose between accepting one of two difficult notions; that either many of our founders lacked insight and specifically set up a nation where those of African descent were never to be included, or that many of the Founders were hypocrites who deserve universal rebuke and reprobation. He chose the former and I have chosen the latter.  That leaves me where I am today, pretty much in condemnation of our Founders and their documents. I am convinced that you cannot understand the founding documents without questioning the purity of our Founders. The goals of the Founders must be analyzed and resolved for there to be legitimate analysis and criticism of their work. A new view of our Constitution is required…one that requires every word to be analyzed for its possible link to maintaining the scourge of slavery.