Indian Canon Originalism

Oddly enough, as I read the Chapter in Wilkins on implied repeals I kept thinking back to Justice Scalia lecturing some crowd in a YouTube video about the virtues of what I thought he called ‘textualism.’  Then, moving to Schuman I couldn’t help but wonder if his entire article was a dig at Scalia – whom he mentions several times in his piece.  Justice Scalia was a supposedly hardcore originalist, but of course when it came to other “quasi-constitutional” or constitutional texts such as Indian treaties, he apparently didn’t have any problem with the court deviating from his absolutist position.  It may have been a bit of a zinger aimed at Scalia, this article by Schuman, applying Scalia’s own myopic methodology of “originalism” to quasi-constitutional documents such as Indian treaties.

Originalism is a patently absurd methodology to apply in order to interpret documents written in the 18th century.  One example of the myopia that ensues using the methodology is evident in the narrow decisions from District of Columbia v Heller and later McDonald v City of Chicago.  In these cases, Justice Scalia essentially conjured up new law by declaring the second amendment to guarantee the right to handgun ownership in the United States.  Of course, the text of the Bill of Rights was written when people carried muskets, round shot, powder, cotton, and a long rod to reload the rudimentary weaponry of the time.  But somehow, for Scalia, the text read ‘handgun,’ or ‘AR-15’.  If every judge views every case through the strict lens of originalism, we will all be living in a lawless, anarchist dystopia. 

That’s because as soon as you apply this myopic “originalist” lens all of the other meaning, history, subtext, nuance, and any other hint of dissent in a legal issue is made invisible, left to the peripheral vision at best.  That is especially true for treaty language.  As Schuman noted, not all treaties were clearly written so as to delineate what Indians actually owned upon ratification.  Words were used to obfuscate the terms of the agreement or to intentionally confuse the indigenous peoples.  Applying a structured originalist approach to interpreting these documents is both out of the time of the “now” and unfavorable to the Indians, who were granting rights to the government and not the other way around.  They must be interpreted organically, and holistically.

Constitutional documents are living documents – they can be updated, reworded, and/or replaced as societies rise and fall.  As recently as the 1950’s, Denmark entirely rewrote its constitution.  We the people can amend or replace the Constitution at will – it is not an entirely static document, in the least.  On the contrary, I would bet dollars to doughnuts the founding fathers like Jefferson and Franklin would be delighted to know that we had expanded and improved upon their amazing experiment in self-governance.

As has been noted recently by comedians, the appointment of a new judge to replace Scalia is not a matter of jurisprudence or rule of law for citizens or lawmakers.  Instead, it has been turned into a wholly political appointment and, in today’s political clime, a fiasco.   And as the history that we have reviewed in this class has shown, as the court goes, so goes the rights and statuses of whole Indian nations.  They have been wholly eradicated through genocidal activity when the court turned a blind eye under the guise of “the political question rule” and they have been partially restored when other courts have applied the liberal canon of American Indian law conceived by Justice Marshall and in treaties with the U.S. 

Only by interpreting documents in the context of the times in which we live today will people today be able to fully exercise their liberties, including Indians and every other American.  Hopefully, the judges of tomorrow will approach Constitutional interpretation with nuance and an eye to social democracy, and our living documents will breathe again so as to deliver on their promises of liberty to all.