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The Constitution: Dead or Alive?

I have always been chagrined to admit that the most engaging writer on the U.S. Supreme Court is Antonin Scalia, chagrined at having to say that about the right anchor, the prince of darkness. So it’s only fair that I admit his skills again on his passing. He was a man of immense energy and skill.

The seat on the SCOTUS Scalia occupied was formerly held by Robert H. Jackson and the second Justice Harlan—no slouches as wordsmiths. Still, neither Harlan nor Jackson ever taught me words like “jiggery-pokery” and “argle-bargle” or brought “tutti-frutti” to Supreme Court opinions direct from Baskin-Robbins.

The other modern justice in that seat—just before Scalia---gave Indians the gift of truth when he reportedly fumed about being assigned “a chickenshit Indian law case.” Whether William Rehnquist said that or not, the chaos of federal Indian law is powerful evidence that it’s not very high on the SCOTUS agenda.

With Justice Scalia, as well, we usually knew where we stood. I counted him as one of the sure thing votes, in a proper case, for the proposition that any program that benefits Indians is unconstitutional discrimination against white people.

At my age, you don’t make light of anybody’s death, but I care about the interests of Indians because they are family and friends. In virtually everything I’ve said or published about what federal Indian law ought to be, Justice Scalia was a worthy adversary, a man of talent and skill. He was just wrong.

Whether or not we agree about his talents, Justice Scalia’s death changes the shape of several playing fields, but the most important are the SCOTUS itself and the road to the presidency.

The SCOTUS matters because it created a doctrine out of whole cloth called “plenary power” over Indian nations. Justice Scalia and all good conservatives should have disrespected the doctrine, because you would have to waterboard the Constitution to get it to utter such nonsense. But plenary power is the law.

The SCOTUS created the power but located it in Congress, where Indian needs get substantially less attention than who gets a corner office. It’s the legislative equivalent of “a chickenshit Indian law case.” When things change on the ground for Indians, it’s often the SCOTUS making the change and, lately, not for the better.

The current Justices split 4-4 too often for the comfort of people who think words have meaning. Until Justice Scalia is replaced, that 4-4 split will leave the judgment of the last court to hear the case on the way up standing.

After Justice Scalia is replaced, ties will start getting broken by his replacement. Indians who risk narcolepsy by watching the hearings to replace Scalia on C-SPAN will not be awakened by any question in Federal Indian Law.

The only input we have is through our senators during “advise and consent.” For those who can get their calls returned by a senator, how can they maximize our hopes for justice?

Scalia would bull though negative knee jerks to call the Constitution “a dead document.” Whatever it meant was made permanent in 1788. The Fourteenth Amendment, site of many attacks on tribal nations, died when it was ratified in 1868.

Because “plenary power” over Indian nations did not come along until 1886, we might be OK with the dead document if it were not a zombie that eats the brains of any judge who comes near it. The status of Indian nations as nations against which the U.S. could wage war and with which it could make peace was understood when the Constitution died. The advocates of the dead document seem to always find a way to make the dead cat bounce against Indian interests.

We who consider ourselves respectful adversaries of the dead document idea think that the genius of the document is in its ambiguity. The broad pronouncements leave plenty of room for 128 years of change. Many of the most serious problems in Indian country did not exist or had not become critical during the lifetimes of the Founders.

Scalia’s death changes the stakes in the presidential election because now, as Sen. Ted Cruz put it, "two branches of government hang in the balance.” Mark this day on your calendar as the time I agreed with Sen. Cruz.

I write within 24 hours of the news, and virtually every Republican in the Senate has already said they will not consent to Scalia’s replacement by President Obama without regard for whom Obama puts forward. President Obama, in his press statement on Scalia’s passing, said that he would nominate a replacement.

Obama could send some liberal hero on the theory that he or she will not get confirmed anyway and senators busting the appointment would highlight the importance of the election.

Or, Obama could send a completely non-ideological legal scholar who would have the support of most practicing lawyers from either side. If that person were busted, it would be even stronger evidence of how important the decision is voters will be called upon to make this year.

Should the senate force the appointment to the next POTUS, it becomes very important to press the candidates for some assurance that their appointee will understand that real people stand to get harmed in every “chickenshit Indian law case” and the dangers of the 21st century require the flexibility of a living document.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.