Thinking About Harriet Miers

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