Let’s Hear it for Original Intent

Gun Rights


Either this nation shall kill
racism, or racism shall kill this nation.” (S. Jonas, August, 2018)

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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., “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

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


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

Court Has No Constitutional Review Authority”

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.

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.

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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