Why Neil Gorsuch and Originalism does not bode well for Equality in America

In the United States, the Constitution is the Supreme law of the land. And it is a deeply held belief that the United States Constitution is synonymous with justice.  That is why before sitting on the court, Supreme Court Justices are required to take two oaths. The first, taken by all Federal Employees, is an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”  The second, the Judicial Oath taken only by Justices of the Supreme Court, is an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

To secure the appointment of Judge Neil Gorsuch to the United States Supreme Court, Senate Republican Majority leader Mitch McConnell enacted what has been referred to as the “Nuclear Option.” What this means is the Senate rules were permanently changed so Supreme Court nominees can be confirmed with a straight majority vote instead of a 2/3 majority. This rule change is a break for the Senate which historically is known for being a more deliberative body that generally places some value on consensus building. Implementing the Nuclear Option allowed Republicans in the Senate to confirm Judge Gorsuch with a simple majority vote of 54 to 45 instead of the previous threshold of 60.

While much attention has been given to the conservative slant that Judge Gorsuch would bring to the Supreme Court, I would like to raise a different concern that has not received as much attention.

Judge Gorsuch embraces an interpretative understanding of the Constitution known as "originalism." This is the theory that the Constitution should be interpreted according to the meaning of words and phrases as they were understood in the times they were written.  According to a story in the LA Times, Justice Scalia "was the foremost champion of this approach. Often frustrated inside the court, he traveled the country, scoffing at liberals who believed in a 'living' Constitution that changes with the times."

While I am not fully on the side of a "living" Constitution, I have deep concerns with the tenants of "originalism."

In an essay titled "The Originalists Perspective" (The Heritage Guide to the Constitution), David Forte, a professor of Law and Cleveland-Marshall College of Law, identifies several components that an Originalist would look for in their effort to ascertain the original meaning of the Constitution. A few of the components identified in the article are:

• The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
• Historical, religious, and philosophical authority put forward by the Framers.
• The words in the context of the revolutionary struggle.
• The subsequent historical practice by the Founding generation to exemplify the understood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
• Early judicial interpretations.

Allow me to address each of these components.

The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
and
Historical, religious, and philosophical authority put forward by the Framers.

In 1452, Pope Nicholas V wrote the following words in the Papal Bull Dum Diversas.

“…invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit”

This Papal Bull, along with others written between 1452 and 1493 collectively became known as the Doctrine of Discovery. The Doctrine of Discovery is essentially the Church in Europe saying to the Nations of Europe, wherever you go, whatever lands you find not ruled by white Christian rulers, those people are less than human and the lands are yours for the taking.

This is literally the doctrine that allowed European nations to colonize the continent of Africa and enslave the African people. Because they did not consider black Africans to be fully human. It is also this Doctrine of Discovery that allowed Columbus, who was lost at sea, to land in a "New World" that was already inhabited by millions and claim to have "discovered" it.

Common sense tells us that you cannot discover lands already inhabited. That process is known as stealing, conquering or colonizing. Because, to this day, the United States of America refers to what Columbus did as "discovery", the implicit racial bias of our country is revealed; Indigenous Peoples of North America, black people from Africa, and generally, people of color are not fully human.

Steve Newcomb, Shawnee/Lenape, is co-founder and co-director of the Indigenous Law Institute and author of the book Pagans in the Promised Land, discusses the Doctrine of Discovery through what he terms a framework of dominance.

The papal bull Romanus Pontifex, issued in 1455, serves as a starting point to understand the Doctrine of Discovery, specifically, the historic efforts by Christian monarchies and States of Europe in the fifteenth and later centuries to assume and exert rights of conquest and dominance over non-Christian indigenous peoples in order to take over and profit from their lands and territories. The overall purpose of these efforts was to accumulate wealth by engaging in unlimited resource extraction, particularly mining, within the traditional territories of indigenous nations and peoples. The text of Romanus Pontifex is illustrative of the doctrine or right of discovery. Centuries of destruction and ethnocide resulted from the application of the Doctrine of Discovery and framework of dominance to indigenous peoples and to their lands, territories and resources.

The Doctrine of Discovery created a world view that put white, European, Christian males at the center and reduced everything else in the natural world to mere resources for their exploitation and profit.


The words in the context of the revolutionary struggle.

In the Proclamation of 1763, King George drew a line down the Appalachian Mountains and essentially told colonies that they no longer had the right of discovery of the Indian lands west of the Appalachia’s. That right now belonged solely to the Crown. This proclamation upset the colonists, they wanted access to those lands, so a few years later they wrote a letter of protest. In their letter they accused the King of "raising the conditions of new appropriations of land." They went on in their letter to declare that "he [King George] has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages..."

They signed their letter on July 4, 1776.

Photo by Kris J Eden

Literally 30 lines below the term "All men are created equal, the Declaration of Independence refers to the indigenous people of Turtle Island as "merciless Indian savages."  This makes it very clear that the only reason the Founding Fathers used the inclusive term "all men" is because they had a worldview informed by the Doctrine of Discovery that gave them a very narrow definition of who is actually human.

This worldview was utilized again, 11 years later, when the Founding Fathers wrote another document which they began with the words "We the People..."

The preamble to the Constitution of the United States begins with very inclusive language. Language which is quoted frequently by both citizens and politicians as proof that the US a nation of laws and equality. However, very seldom do people read Article I Section II, a mere four sentences later in the document. Article I Section II defines who is represented within this Union, in other words, who the Constitution was written to protect.

Article I Section II
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons...”

When reading this section, it is important to note that women are never mentioned. Indigenous people are explicitly excluded. And all other persons (I.e. Black slaves) were counted as three fifths. This reduced those included in "We the people" primarily to white, land-owning men.  It is helpful to stop and ponder this.

The Constitution of the United States was originally written to protect the interests of white, land-owning men.

We act surprised that in 2017, women earn 70 cents to the dollar. This should not surprise us. The original intent of the Constitution is working.

We act astonished that our prisons are filled with people of color. This should not astonish us. The original intent of the Constitution is working.

We act incensed that in 2010 the United States Supreme Court sided with Citizens United and ruled that corporations now have the same rights to political free speech as individuals. Allowing the creation of super-PACS and unlimited contributions to political candidates. This should not surprise us.  The original intent of the Constitution is accomplishing exactly what it was setup to accomplish. It is protecting the interests of white, land-owning men.

Now maybe you are thinking, "Wait. Didn't we correct that?"

Well, Congress tried. About 90 years later they passed the 13th Amendment. The popular belief is that the 13th Amendment abolished slavery. But anyone who has read the entire amendment knows that is not the case.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

"...except as a punishment for crime..."

As it turns out, the 13th Amendment never abolished slavery, it merely redefined it and codified it under our criminal justice system.  This makes the incarceration rates in the United States even more troubling. According to the Prison Policy Initiative, the United States incarcerates people at a rate of 693 per 100,000. That is by far the highest incarceration rate of any country in the world, with second place falling to Turkmenistan (583 per 100,000). And the US rate is more than 5 times higher than most other countries.

And the numbers get even worse when broken out by race/ethnicity.

• Blacks.....................2,306 per 100,000
• Hispanics...................831 per 100,000
• American Indians......895 per 100,000

Of course, at 450 per 100,000, whites in the United States are incarcerated at rates much lower than the national average.

The 13th Amendment to the US Constitution, never abolished slavery. It merely redefined and codified it. To this day, slavery is alive, well, and legal in the prison system of the United States of America, under the judication of the Judicial branch of our government.

Just a few years later, the US Congress also passed the 14th Amendment. This amendment was written specifically to address the shortcomings of Article I Section 2 of the Constitution.

Section I
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Amendment starts out well. Beginning with the inclusive language "all persons", it extends the rights of citizenship to anyone born or naturalized in the United States, under the jurisdiction of the government. However, Section II of this amendment is not nearly as inclusive.

Section II
"Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."

Indigenous peoples were still explicitly excluded. Women were again left out. And, for a second time, those convicted of crimes were also excluded. When paired with the 13th Amendment, the 14th Amendment had very little impact on the long-term prospects of freedom and equality for anyone not white, land-owning and male. True, it granted conditional rights of citizenship to former male slaves, but it still left marginalized and disenfranchised huge segments of the population. Women didn't get the right to vote until 1920 with Women's Suffrage. Natives didn't become citizens until 1924 and in some states, like Arizona and New Mexico, we didn't get the right to vote until 1948. And one must not forget, Jim Crow laws were still written after the 14th Amendment. Indian boarding schools were established after the 14th Amendment. Internment camps, segregation, Indian removal, lynching, mass incarceration of people of color; all these, and more, took place after the 14th Amendment. And in 1970 the 14th Amendment was used in Roe v. Wade, which concluded unborn babies are not human and therefore they can be aborted.

What this demonstrates is that at the heart of our Constitution, and in the world view of the original framers, there is not a comprehensive value for life or equality. There is a practice of marginalization and dehumanization. And the value tends towards exploitation of the marginalized and profit for the dominant. Since its origins, the Constitution of the United States has been an extremely racist and sexist document that assumes the white, land-owning male has the authority to determine who is and who is not human.

This of course, has major implications for the judicial branch of our government, especially for those who have an Originalist method of interpreting the Constitution.

The Declaration of Independence and the US Constitution are documents born out of the revolutionary and colonial periods of America. It is because they originated from the world view of Doctrine of Discovery, that the framers used such inclusive language as; All men, We the People, All Persons and Whole number of Persons.  They used inclusive language because their worldview gave them an extremely narrow definition of humanity.

The subsequent historical practice by the Founding generation to exemplify the understood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
and
Early judicial interpretations.

In 1823 two men or European descent were litigating over a single piece of land. One obtained the land from a native tribe, the other obtained the same land through the US government. They wanted to know who owned it. The case, Johnson v. M'Intosh went all the way to the Supreme Court. The court had to determine the principal for land titles.  The Supreme Court, led by Chief Justice John Marshall, ruled that:

As they [European colonizing nations] were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The court went on to reference the Doctrine of Discovery as a legal instrument and concluded that American Indians only had the right of occupancy to the land, while Europeans had the right of discovery to the land, and therefore the true title to it.

This case, along with a few other during the Marshall Court era created the legal precedent for land titles.

This precedent, and the Doctrine of Discovery, was referenced by the Supreme Court in 1954.

II. Indian Title. -- (a) The nature of aboriginal Indian interest in land and the various rights as between the Indians and the United States dependent on such interest are far from novel as concerns our Indian inhabitants. It is well settled that, in all the States of the Union, the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. That description means mere possession not specifically recognized as ownership by Congress. After conquest, they were permitted to occupy portions of territory over which they had previously exercised "sovereignty," as we use that term. This is not a property right, but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties, but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians.

This position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained. 1 Wheaton's International Law, c. V. The great case of Johnson v. McIntosh, 8 Wheat. 543, denied the power of an Indian tribe to pass their right of occupancy to another. It confirmed the practice of two hundred years of American history "that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest." 8 Wheat. at 21 U. S. 587.

Again in 1985 - City of Oneida v. Oneida Indian Nation

[Federal Common Law]
By the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe's interest in its property and how those interests could be conveyed. It was accepted that Indian nations held "aboriginal title" to lands they had inhabited from time immemorial. The "doctrine of discovery" provided, however, that discovering nations held fee title to these lands, subject to the Indians' right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign.

And most recently in 2005 - CITY OF SHERRILL, NEW YORK v. ONEIDA INDIAN NATION OF NEW YORK

(Footnote 1) Under the ìdoctrine of discovery,î County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 234 (1985) (Oneida II), fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign first the discovering European nation and later the original States and the United States.

Not only did the 1823 Supreme Court led by Chief Justice John Marshall, and subsequent Supreme Court judicial interpretations, perpetuate the dehumanizing worldview of the Doctrine of Discovery, but they transformed the Doctrine of Discovery into a modern day legal instrument that has become the bedrock of the legal principal for land titles in the United States.

This is important because it means that the United States of America has a Constitution which not only was originally written with the understanding that American Indians and black people were not citizens, but we were actually considered to be sub-human.

We the People v. All the People

In his final state of the Union, when talking about our nation’s need for a new politics, President Obama quoted the Constitution.  He said, "We the People.' Our Constitution begins with those three simple words, words we’ve come to recognize mean all the people."

Now that sounds beautiful, and I am sure there are many Americans who believe it. The problem is, we have never decided as a nation that We the People means All the People. Our founding fathers did not believe it. The Civil war and the 13th and 14th Amendments did not get us there. The Civil rights movement got us closer, but not all the way. Electing a Black President did not get us there, and I am certain President Trump will not get us there.

The original intent of our founding documents was to protect, benefit and profit white, land-owning men. And this was accomplished through the exploitation of women, black people from Africa and the indigenous peoples of Turtle Island.

As Americans, we tend to think that our country struggles with racism despite our founding documents. But I would argue that the United States of America is systemically racist because of our founding documents. The problem is our founding fathers embraced the dehumanizing world view of the Doctrine of Discovery and then implied it, embedded it, and wrote it into the foundations of our country.

In the United States, the Constitution is the Supreme law of the land. And it is a deeply held belief that the United States Constitution is synonymous with justice.  That is why, on Monday April 10, 2017, Justice Neil Gorsuch, like the 100 Supreme Court Justices before him, took two oaths. The first was an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”  The second, the Judicial Oath, taken only by Justices of the Supreme Court, was an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

Unfortunately, on occasion, these oaths are mutually exclusive. And those who interpret the Constitution as originalists will, from time to time, be forced to choose which oath to keep. The founding fathers, the Constitution, and Supreme Court legal precedents have made it quite clear; when push comes to shove, when land titles or the economic/military security of our nation is at stake, We the People does not mean All the People.

Mark Charles
(Navajo)