Ee'd Plebnista, the Tea Party, Scalia, and "original intent"

Posted on: Tue, 01/04/2011 - 21:32 By: Tom Swiss

In the Star Trek (original series) episode "The Omega Glory", Kirk, Spock, and the gang find a planet inhabited by two warring tribes, the "Yangs" and the "Kohms". It turns out that these tribes are devolved remnants of American -- "Yanks" -- and Asian Communist -- "Comms" -- societies.

(Are the Kohms Chinese? Vietnamese? Korean? It's left as an unspecified yellow peril. And how did these tribes get there? Presumably either from Earth via an early space colonization effort, or by the same sort of parallel planetary evolution that gave us a planet with a technologically sophisticated Roman Empire in another episode. They never say, and it's really not important to this anvilicious tale.)

One of the chief holy relics of the Yangs is a copy of the U.S. Constitution. Problem is, the Yangs are an illiterate tribe, with no idea what the Constitution says or means. They refer to the Constitution as the "Ee'd Plebnista" (some sources render this as "E Pleb Neesta" or "E Plebnista") -- their butchered rendering of "We The People", the opening words of that document. Kirk proves to the Yangs that God is on his side by emerging victorious in single combat, and then endeavors to set them straight about The American Way, telling them "That which you call Ee’d Plebnista was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people!...These words and the words that follow were not written only for the Yangs, but for the Kohms as well!...They must apply to everyone or they mean nothing!" You can probably picture the Shatner delivery even if you've never seen the episode.

The irony of the correctness of this idea being proven to the Yangs by trial-by-combat, and of the Canadian Shatner being a mouthpiece for this bizarre bit of patriotism, are part of the (ahem) charm of this ep.

As I've been listening to the rants and raves of Tea Party folks over the past year or so, and their frequent reference to the Constitution, I can't help but be reminded of Ee'd Plebnista: to them, the Constitution is a holy thing, even though they often have little idea what it says or means.

Now, I'm generally a fan of the Constitution. I think the idea "hey, let's try to write down a vision statement and some rules for our new country" was a big step in the evolution of government, so, hooray USA and all. I've even got an ACLU "I'm a Constitution Voter" bumper sticker on my dirty and banged-up ol' Subaru.

But I do have to wonder who's going to get to read the parts about three-fifths of a person, and Congress not being able to ban the importation of "certain persons", and states being required to return fugitive slaves, when the new GOP majority in the House does their teabagger-inspired readers' theater version of the Constitution. And I wonder if they'll skip over the taxation authority, spending authority, and interstate and international commerce regulating authority that Tea Partiers and "Tenthers" seem to not know are there.

I like the comments of Akhil Reed Amar, a constitutional scholar at Yale Law School and author of America's Constitution: A Biography; Amar says he supports the reading -- "Why only once in January? Why not once every week?" -- but that "My disagreement is when we actually read the Constitution as a whole, it doesn't say what the tea party folks think it says."

In other words: "Ee'd Plebnista..."

And I have to hope that when the readers get to the Fourteenth Amendment, they'll project it on the wall in letters ten feet high and someone will drag Antonin Scalia into the chamber and put his head into some sort of A Clockwork Orange apparatus. Maybe that will drill it into his brain, because Antonin is apparently having trouble with that one. He thinks that the equal protection clause's requirement that no State "deny to any person within its jurisdiction the equal protection of the laws", doesn't apply to women.

Really. Seriously. A U.S. Supreme Court Justice said that. Please pause and consider this for a moment. According to Scalia, "The only issue is whether [the Constitution] prohibits [discrimination on the basis of sex]. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws."

Either Scalia can't read the damn thing, or he doesn't think women are "people", or he just has no idea of what words mean.

"Ee'd Plebnista..."

Now, one idea that you often hear from Ee'd Plebnista-ers is that we need to follow the "original intent" of the Constitution. Somewhere right now, I'll bet, an apologist for Antonin is saying, "well, the original intent of the Fourteenth Amendment was to outlaw discrimination on the basis of race."

The idea that the words of a law don't mean what they say, but rather what the writer intended them to say, turns interpreting the law into something ridiculously like literary criticism. "See, here in Subtitle 3 Paragraph 6, you can see the influence that Congressman Jones's parents' divorce had on him -- clearly, these tariff rates are meant as a metaphor for the wounding of his inner child."

And since the original intent of the well-off white males who wrote the thing was to create a government for a small agrarian slave-holding nation that was (unlike the Articles of Confederation) strong enough to protect their interests, I am mystified as to why anyone thinks that we should be bound by that intent today.

But more than that, "original intent" is intellectually bankrupt because the original intent of the framers was that their intent not be used as a guide to the Constitution. James Madison was quite clear on this in an 1821 letter to Thomas Ritchie:

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.

And considering that Madison also wrote [see correction in comments below! - tms], "In answer, I say, that, at the time I drew that constitution, I perfectly knew that there did not then exist such a thing in the Union as a black or colored citizen, nor could I then have conceived it possible such a thing could have ever existed in it; nor, notwithstanding all that has been said on the subject, do I now believe one does exist in it," let us be grateful that we can leave his opinions and intentions in the dustbin of history. A handful of them were useful to us once, perhaps, so that we might pause for a moment's sentimental recollection, before realizing that we're far better off without him.

In reply to by Anonymous (not verified)

You are correct sir! Thank you for the catch.

It's still a nasty quote from one of the Framers, and illustrates that their "original intent" is not something a mature nation would wish to be bound by.

As for Madison, despite some hand-wringing on the topic of slavery, he owned slaves, and did not even free them upon his death as Washington did. It was his opinion that slaves couldn't be freed unless "they are permanently removed beyond the region occupied by, or allotted to a white population" -- so it is the case that he, like Pinckney, intended a completely segregated society.

But I regret the error of putting incorrect words into Madison's mouth.

Wow, a real-life self-reference paradox.

"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. [...] the legitimate meaning of the Instrument must be derived from the text itself."

Of course, this statement by Madison is not in the text of the Constitution, so, by its own lights, it can have no bearing on legitimate interpretation thereof. An argument from Madison's letter annihilates both intent-based interpretation and itself.

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