Thinking About Harriet Miers

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There
has been much wailing and gnashing of teeth among conservative pundits
over George W. Bush's nomination of Harriet Miers to the Supreme
Court, and understandably so. Miers is, for all practical purposes,
a blank slate. Those who trust Bush, such as James Dobson, can project
their faith in him onto her. Those who do not, including many who
just a year ago were firmly in the Bush camp, fear that she may
turn out to be another David Souter, the quite liberal justice appointed
by a previous, ostensibly conservative President George Bush on
a "trust me" basis.

For
the latter the argument inevitably comes down to this: Is Harriet
Miers a strict constructionist? That is, will she read and interpret
the Constitution as written and as intended by its authors; or will
she, as a loose constructionist, consider it a "living document,"
able to be bent and shaped to suit her own opinions as to how the
country ought to be governed?

The
real question, however, is: Does George W. Bush really want strict
constructionists on the federal bench? (Yes, yes, I know he says
he does, but he's also said he's in favor of smaller government
and opposed to nation-building by the U.S. military, so his words
are of little comfort in and of themselves.) For that matter, do
conservatives really want strict constructionist judges, either?
The answer to both is a resounding "No!"

Let's
consider a smattering of examples of both Bush policies in particular
and conservative policies in general that a strict-constructionist
judge might – if he were not so strict as to refuse to exercise
judicial review altogether – rule unconstitutional.

Entitlements
and the "Faith-Based Initiative."
Most conservatives
oppose a large number of federal entitlements; but, like most people,
they have certain federal wealth transfers that they consider worthy
of taxpayer support. Rush Limbaugh, for example, recently professed
astonishment that anyone would dare suggest that federal disaster
relief might not be such a good idea. Bush proposed, and got, the
largest new entitlement in decades in the form of Medicare prescription-drug
coverage. Conservatives from all quarters seem enthralled by the
idea of Social Security reform (rather than repeal), by which they
mean a new government forced-savings program which will only further
entangle the federal government and the private sector, not to mention
ballooning the federal debt even faster than it is already expanding
and failing to solve the underlying problem. Then there's Bush's
beloved "faith-based initiative," whereby religious charities
are suckered into accepting stolen money (i.e., taxpayer dollars)
in exchange for forswearing any attempt to convert those they are
helping – in short, taking the faith out of faith-based organizations.

A
strict constructionist, of course, would find all of these programs
unconstitutional. In fact, to do otherwise would be to violate the
words
of the father of the Constitution, James Madison: "I cannot
undertake to lay my finger on that article of the Constitution which
granted a right to Congress of expending, on objects of benevolence,
the money of their constituents."

The
War on Drugs.
Although some conservatives, notably those at
National Review, have come around on this subject, the majority
seems still to be firmly in the lock-'em-up-and-throw-away-the-key
camp when it comes to the sales, purchase, and use of politically
unpopular substances. Conservatives, usually willing to give law
enforcement great latitude, tend not to be troubled by the militarization
of law enforcement and the numerous violations of constitutional
rights that the War on Drugs entails, including asset forfeiture,
in which a person's property is stolen by the government simply
because someone has alleged that at some point in history an illegal
substance may have passed through that property.

A
strict constructionist would, naturally, rule most of the means
used to prosecute the federal War on Drugs unconstitutional. Even
more to the point, however, this same judge would find the federal
prohibition of various substances itself to be unconstitutional.
This is easily proved by a simple examination of alcohol prohibition.
Americans recognized that the federal government had no constitutional
authority to ban alcohol, so they passed a constitutional amendment
to grant such authority in 1919. Then, when they wished to rescind
that authority 14 years later, they again had to amend the Constitution.
If it was unconstitutional to ban alcohol without an amendment,
surely the same can be said for other substances.

School
vouchers.
A pet project of conservatives for decades now, the
idea is to allow parents to use the tax money that they normally
pay for their children to attend a particular public school instead
to send their children to a school of their choice, whether public
or private. Besides the obvious fact that this would have the same
effect on private schools that federal education subsidies already
have on public elementary and secondary schools and both public
and private universities – namely, to force them to surrender control
to the federal government – this would immediately be ruled unconstitutional
by our hypothetical strict constructionist for the same reason that
Bush's No Child Left Behind Act and, in fact, all federal education
policy would be: The Constitution nowhere grants the federal government
the power to legislate in such matters and thus, as per the Tenth
Amendment, said power is reserved for the states or the people.
(For those who actually want to solve the problem and not simply
change from "liberal" to "conservative" government
programs, the solution is complete separation
of school and state
.)

Anti-discrimination
laws.
Conservatives incessantly decry federally mandated affirmative
action (usually less because it's a blatant violation of property
rights than simply because it has bad effects), but they frequently
supply the caveat that, of course, discrimination ought to
be illegal. The only thing wrong with prohibiting discrimination
by law is that liberals enforce the laws by racial quotas rather
than by the presumably more conservative method of attempting to
divine the intentions of a business owner as he makes personnel
decisions. They are particularly fond of reminding
us
that a higher percentage of Republicans than Democrats voted
for the Civil Rights Act of 1964, the very act that paved the way
for all of the quotas and "reverse discrimination" that
they now find so abhorrent. A strict-constructionist judge would,
however, have no alternative but to find laws prohibiting private-sector
discrimination unconstitutional, the federal government again having
been granted no authority therein to enact such legislation.

The
War on Terror.
This, more than anything else, has kept restive
conservatives from deserting their putative leader in the Oval Office
despite his otherwise overwhelmingly liberal record. Bush's eagerness
to take on small, defenseless countries in remote parts of the world
with all the bravura of a six-year-old with a pop gun facing down
his little brother, and his nose-thumbing at the contrary opinions
of those in other countries, have endeared him to a Right that worships
the military and delights in blowing foreigners to smithereens.
(Witness, for example, their continual
defense
of the nuking of Japan in World War II.)

The
War on Terror (or whatever the White House marketing department
is calling it these days) is simply fraught with constitutional
difficulties that our strict constructionist would find reason to
strike down, among them:

  • The USA
    PATRIOT Act, which, among other things, grants federal agents
    the authority to perform warrantless, sneak-and-peek searches
    of the property of those the government has decided are potential
    terrorists, in direct violation of the Fourth Amendment.
  • The White
    House's assertion that the president can, simply by declaring
    someone – even an American citizen captured on American soil
    – an "enemy combatant," cause that person to be detained
    indefinitely, without charges, access to an attorney, or a court
    hearing, a violation of at least the Fifth and Sixth Amendments.
  • The conduct
    by the Executive Branch of two wars, one in Afghanistan and
    one in Iraq, neither of which was declared by Congress, a clear
    violation of Article I, Section 8. Arguing that the failure
    of every post-World War II president to obtain a declaration
    of war from Congress for his foreign adventures somehow nullifies
    this provision – William F. Buckley, Jr., says
    that "declarations of war are out of style" – is utter
    nonsense and qualifies one for membership in the "living
    document" school of constitutional jurisprudence.

These
are but a few of the myriad ways in which conservatives and the
Bush administration actively participate in the destruction of the
Constitution. Clearly, then, it is in neither Bush's nor his supporters'
interest to have genuinely strict-constructionist judges on the
federal bench.

Thus,
the answer to the question "Is Harriet Miers a strict constructionist?"
is plainly "No." If she were, she wouldn't likely be counsel
to one of the most liberal presidents in recent memory; and that
same president wouldn't dare make the mistake of putting her on
the Supreme Court, where she might very well find him and his entire
political party in violation, many times over, of the Constitution.
(The same holds true for Chief Justice John Roberts, who appears
to be conservative mainly in the sense that he won't rock the boat.)

Both
Bush's admirers and his left-wing detractors needn't fear Miss Miers,
either. She won't harm one scale on their beloved Leviathan.

October
25, 2005

Michael
Tennant [send him
mail
] is a software developer in Pittsburgh, Pennsylvania.

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