The United States Constitution is a living document, adapting to the changing needs of the times. Despite what Justice Scalia and the Federalist Society want us to believe, the doctrine of “original intent” is nonsensical, because determining the original intent of the framers depends on which framer you ask and at what time in his life you ask him. The framers disagreed with each other about the meaning of the document, and they sometimes disagreed with themselves, changing their minds through the course of their lives as they watched the workings of the Constitution unfold. Their successors came to their own interpretation of the meaning of the document over the centuries.
Determining original intent is also difficult because, although Article III of the Constitution establishes the Supreme Court, it says little else about the judicial system. Here’s the full text of this article:
Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section 2
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;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
In summary, Section 1 basically says there will be a Supreme Court and probably some other courts but we don’t know what they will be. Section 2 establishes the jurisdiction of the Supreme Court but says little else that is useful. Section 3 says treason is bad.
That’s it. The first Congress passed the Judiciary Act of 1789, establishing the federal court system, but there was little sense of what this court would actually do. The first case in which the Supreme Court weighed in on the constitutionality of a law was Marbury v. Madison in 1803; it didn’t use this power again until Dred Scott vs. Sanford in 1857. In the intervening years, the court was making other rulings – specifically on statutory interpretation, or deciding what laws meant and how they could be applied to various circumstances.
When I taught the history of the Supreme Court in my high school AP Government classes, I divided the history of the institution into three eras:
1789-1860 – Who’s in charge here – the states or the central government?
1865-1932 – What powers does the central government have to regulate the economy?
1932-present – What role does the court play in protecting individuals?
These are broad categories and obviously they don’t identify every case decided in these eras. But they’re a good starting point.
Which brings us to the 1832 case Worcester v. Georgia (of course it does.) Here’s what this case was all about:
In 1828, the state of Georgia passed a series of laws stripping local Cherokee Indians of their rights. The laws also authorized Cherokee removal from lands sought after by the state. In defense, the Cherokee cited treaties that they had negotiated, as an independent "nation," with the United States, guaranteeing the Cherokee nation both the land and independence. After failed negotiations with President Andrew Jackson and Congress, the Cherokee, under the leadership of John Ross, sought an injunction ("order to stop") at the Supreme Court against Georgia to prevent its carrying out these laws.
The Court, in Cherokee Nation v. Georgia, ruled that it lacked jurisdiction to hear the case and could not resolve it. The Court began by sympathizing with the Cherokees' plight, acknowledging that they had been persecuted and marginalized by America's European settlers, then asserted that Indian nations were both "foreign nations" and people within U.S. boundaries. In other words, the Cherokee, though sometimes viewed as an independent nation, were also dependent people on the nation that envelopes them. Thus, the Court asserted that "foreign nations," as used in the Constitution, could not include "Indian nations." Because the Constitution only authorizes the Supreme Court to hear cases brought by "foreign nations," not "Indian nations," the Court was not authorized to entertain this case and dismissed it.
Meanwhile, in 1830, Georgia passed another law requiring its citizens to obtain a state license before dwelling inside the Cherokee Nation. A group of missionaries residing there, including Samuel Austin Worcester, refused to obtain such a license. The missionaries were known supporters of Cherokee resistance to Georgia's removal efforts. Worcester and a fellow missionary were indicted by a Georgia court, brought to trial, and convicted. Worcester appealed to the U.S. Supreme Court, claiming that the Georgia court lacked authority to convict them.
On review of the case, the Supreme Court in Worcester v. Georgia ruled that because the Cherokee Nation was a separate political entity that could not be regulated by the state, Georgia's license law was unconstitutional and Worcester's conviction should be overturned. The Court first pointed to evidence proving that the Native American communities were conceived of as "separate nations" dating back to the time of early colonial America. The Court then argued that today's "treaties and laws of the United States [also] contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union." Therefore, only the United States can negotiate the terms of Indian lands and the use thereof. States lack constitutional power to deal with such "nations" at all. Thus, Georgia could not pass the license law and convict Worcester for violation of that law.
The Supreme Court's ruling, however, was neither followed by Georgia nor enforced by the U.S. government. President Andrew Jackson, sensitive to Georgia's claims of independence at a time when the states wielded considerable power, had no interest in enforcing the Court's decree. The missionaries remained imprisoned until 1833, when a new Georgia governor negotiated for their release. The Georgia Cherokees themselves were forcibly relocated in 1838, pursuant to a U.S. treaty, to present-day Oklahoma ("the Trail of Tears"). Today, the substantive ruling in Worcester is no longer binding: the Supreme Court holds that, to a certain extent, a state may regulate the Indian territories within its boundaries.
Jackson is famous for having responded to the Court’s ruling with these words: "John Marshall has made his decision, now let him enforce it." The words may be apocryphal, but the sentiment was not. The ruling was neither followed by Georgia nor enforced by the United States government.
Very interesting, Karen. Thanks for the history lesson. But why are you writing about this today?
I’m glad you asked. Texas Governor Greg Abbott has stated that he will ignore this week’s decision by the Supreme Court ruling that he couldn’t put razor-wire on the southern border in order to drown migrants. His resistance is being encouraged by a number of Republican government officials – including the frontrunner for the GOP presidential nomination along with members of the House of Representatives and United States Senate. Abbott didn’t say explicitly “John Roberts has made his decision, now let him enforce it,” but he might as well have.
Meanwhile, Republicans in the Senate appear poised to kill a potential negotiated compromise on border security because #P01135809 wants the bad situation at the border to remain unsolved so he can campaign against it over the next 10 months. Last night, #P01135809 called on Republican-controlled states to send National Guard troops to Texas to help the Texas governor repel a supposed “invasion.”
Just to refresh: The Border Patrol under the Biden administration has clashed with Texas, which is installing razor wire along the border as its own form of deterring migrants from attempting to cross. Federal agents have warned this is obstructing them from doing the actual work of safely apprehending and processing migrants.
Earlier this week, a divided Supreme Court allowed the Border Patrol to clear away razor wire as needed, in a rebuke to the Texas efforts. Abbott, however, has continued to have the National Guard install more obstructions as they come down, and issued a letter proclaiming the migrants to be an act of war against his state and vowing not to back down. Since that letter emerged, most Republican governors have signaled their support for Texas.
Abbott’s supporters are echoing the language of Southern secession before the Civil War, saying that the federal government has broken its contract to defend the state of Texas and that Texas thus has the right to ignore the rulings of the federal government, including the Supreme Court. Meanwhile some Democrats are encouraging President Biden to federalize the Texas National Guard and Biden’s Department of Homeland Security has written to Texas, demanding “full access” to the border by January 26. Maybe Biden should even send in the 101st Airborne to exert federal power against a recalcitrant state – you know, like President Eisenhower did in Little Rock in 1957 in response to Arkansas’s defiance of a presidential order.
As a signal of how unserious Republicans are about actually solving this problem, the prize for the most ridiculous name for a proposed piece of legislation goes to Republican Mike Collins of Georgia for his Restricting Administration Zealots from Obliging Raiders (RAZOR) Act that would prohibit the federal government from removing or tampering with any state border barriers. The Razor Act, get it? Har-de-har-har.
And Abbott must be worried that he won’t get the annual cruelty award, so he continues to ship migrants off to northern cities – just because he can.
These people need to stop playing games. This is as serious as it gets, folks. The United States fought a Civil War over this kind of shit.
The VP has done good work on helping Central American counties on base issues. I think it needs more pr. Abbot needs to have the weight of the fed gov land upon his head and the prez needs a visible exec action at the border since Congress won’t let anything move forward because their deal leader says so. Oh, and the former guy needs a gag order on himself. Who in the world would make a comment like that about the natl guard?! Astonishingly maddening.
There are several issues with our border laws and enforcement. First of all our currant laws don't provide for closing the border. The Border Patrol can only enforce whatever the currant laws are, they can't just make up new laws. Congress is responsible for making new laws and for providing the money to enforce those laws. And there is the main issue, money. Congress is aware of how much it would cost to close the border and they aren't willing to fund it. They are also worried that even if they wrote the laws and provided the money that there isn't anyway to hire and train enough agents to do the job. It would probably take two Army infantry divisions to effectively close the border (about 40,000 soldiers), that may well ne a low estimate. Bill Clinton was the first President that wanted to build a wall to close the border. Initially, Congress gave him 8 billion dollars to build his wall. After he had spent about 4 billion dollars the took the rest back as they realized what it was going to cost.