There’s no denying that Chief Justice John Marshall was a very smart lawyer, and he probably belonged at the top of the new- judicial system being created out of whole cloth for the new country. He was charged with making the earliest attempts to square the circle of interpreting a written constitution within a system based on English common law.
English legal theory was all about how to adapt to the exigencies of new situations without disturbing the unwritten body of jurisprudence everybody relied upon. It was the attempt to write down fundamental law that enabled Justice Antonin Scalia to describe the Constitution as “a dead document,” words that acquired all the meaning they would ever have in 1788 (the year of ratification).
Marshall walked on in 1835, and it’s his legacy that makes American Indian legal scholars better equipped than their peers to deal with the virus in the body politic that is Donald J. Trump. If you all will remain seated and keep your hands where I can see them, I will try to explain.
During the ratification debates, the Founders decried “factions,” but the differences publicly debated between the Federalists and the anti-Federalists presaged the two-party system. Marx could have told them that would happen, had he been in the debate. The more I think about the uses of language as the revolutionaries formed the factions that have characterized all revolutions since, the more convinced I am that either Marx would have seen it coming—Karl or Groucho.
The historical understanding of sovereignty was a role vested in a human being by supernatural authority. The sovereign had the power.
All of it.
As government got more complicated than a competition among a few warlords allowed, the sovereign delegated more authority to others. Bureaus require bureaucrats, but all the power vested in bureaucrats was delegated by the sovereign and that delegation was always subject to the whims of the individual who was, in the immortal description of George W. Bush, “the decider."
The function of a judge was simple. It was to speculate on what the sovereign would do confronted with the case in front of the judge. Compare this with what most of us think today, that the acid test of a fair justice system is whether the government can lose in its own courts.
Before Magna Carta, there could have been no dissent from the government’s view because the government’s view was the law. You might say this was “socialist legality” before Marx. It’s Karl and not Groucho who has taken the historical rap for there being no daylight between what the government wants the law to be and what the law is.
Marshall’s legacy interpreting the written Constitution is that if the “dead” document fails to provide what you need, your reputation will survive making something up. As long as you claim that it’s so clearly implied by the text any fool could see it. That, Scalia would claim, is the law according to Groucho.
A modern example would be the right to privacy. The concept first appeared in the Harvard Law Review in 1948. The word “privacy” appears nowhere in the document, so whether it’s dead or alive is beside the point. It took a mere 17 years for privacy to migrate from the Harvard Law Review to the SCOTUS.
Parts of the Constitution were, apologies to the memory of Justice Scalia, dead on arrival. The Third Amendment has never decided a case because Congress has never quartered troops in private homes without permission, but the Third Amendment certainly is one of several specific guarantees in the Bill of Rights that casts a penumbral shadow where Justice William O. Douglas purported to find a right to privacy.
The power to declare war is vested in Congress by Article I, Section 8. Any schoolchild knows we go to war all the time without Congress. This is not so much executive usurpation as Congressional negligence. As long as Congress takes no public vote, they can cheer and claim credit when the war goes well and hang the POTUS out to dry when it goes poorly. There is no political gravy in voting on a declaration of war. It’s not the war that scares them; it’s the voting.
Article VI says there will be no religious test for public office.
Who ignores that? The voters.
Then there is the Seventh Amendment guarantee of a jury trial when the amount in controversy exceeds twenty dollars. Are you kidding me?
If the so-called dead document must account for inflation, it also must account for technology. Think of the phrase “unreasonable search and seizure,” which is in the Constitution, in light of a lot of technology that is not. Just to name actual cases: telephones, infrared scanners, GPS locators....
“Domestic dependent nations” are not in the Constitution, and that document only tells us two things about Indian nations.
Article I, Sec. 2, the Apportionment Clause, says that when Congress reapportions legislative districts after the Census every 10 years, Indians don’t count. Those who ratified this would say it’s fair because Indians are not citizens and Indians can’t vote.
After the Civil War, the 14th Amendment offered a do-over of apportionment and the do-over included ex-slaves but still excluded Indians.
Article I, Sec. 8, the Indian Commerce Clause tells us that the federal government has the power to control commerce with the Indian nations to the exclusion of the states.
There are some quibbles. Both times the document speaks of legislative apportionment; it says, “Indians not taxed.”
To the average settler, that’s a recognition of what the current U.S. government would call an “alternative fact,” that no Indians pay taxes.
To this Indian lawyer, it means “Indians that maintain tribal relations.” But that’s not the only place where what I think is simple gets ignored, so I’ll STFU.
The other quibble is that the 14th Amendment contains birthright citizenship, which this country boy would have thought included Indians born within the U.S. borders. The SCOTUS didn’t get that memo either.
I think I’ve said enough now—although there is much more—to demonstrate that American Indian legal scholars or, to be fair, scholars of American Indian law, spend most of their time trying to analyze the arrangement of the furniture down the rabbit hole.
I start out thinking Indians rather than Indian law scholars generally because skins have skin in the game. We have no choice but to take up the vorpal sword and chase the Jabberwock.
Other legal scholars have the option of staying on ground that does not shift, where you know that the SCOTUS will not make up special rules to avoid treating your clients like any other beneficiary of a trust, any other party to an agreement, any other holder of a constitutional right that it might inconvenience the government to recognize.
Indians have to get used to uncertainty.
This strange POTUS is breaking new ground in so many ways. At this writing, the man Trump fired from heading the Russian hacking investigation, Jim Comey, is scheduled to testify before Congress. The Tweeter-in-Chief has called Comey a liar. Can you imagine the gall it takes for Donald J. Trump to question somebody else’s truthfulness?
Leaving aside pots and kettles, Comey’s worst enemies—most of whom are Clintonistas, who believe he blew Hilary Clinton’s campaign out of the water—do not say he’s a liar. They say he’s a drama queen. They say he bends the rules. They say he’s a glory hog. If he’s a liar, it will come out in the wash.
With Trump, it would be easier to list his truths than his lies. The POTUS must be able to lie. It’s part of the job description. But Trump’s lies do not have to do with the covert activities of the government. Sometimes it’s hard to assign a reason.
Trump is using the presidency to make money. He is not the first, but he may take it to new levels. It’s in that pursuit where Trump may step into some esoteric legal issues. His son in law has been caught meeting with Russian businesses subject to U.S. sanctions. If he was talking business, he was outside the law—but what if he was talking politics to the end of legalizing the business?
Trump is stepping all over a part of the Constitution as virginal as the Third Amendment. The last sentence of Article I, Sec. 9:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Trump has been sued for violating the Emolument Clause, but not so far by anyone with standing to sue.
Trump’s hotel has become the place foreign delegations want to be seen. The hotels that are losing the business have standing. Everywhere Trump has convinced people they must pay to play, somebody lost business and has standing to sue.
Unless Trump gets caught stealing in the old-fashioned sense, it will be necessary at some point to construe the Emolument Clause.
Indian lawyers, having vast experience watching the SCOTUS make up law to disadvantage them, should be better fixed than the average lawyer to make up law for more benign purposes.
With Trump running the government, every principle is up for grabs. There is no set of lawyers better suited to operate in the absence of fixed principles than those who make a career navigating federal Indian law.
Steve Russell, Cherokee Nation of Oklahoma, is a retired Texas trial court judge and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.