October 13, 2005

An Exercise in Transitive Logic

Now follow me here:

The President says that Miers got the nod for the Supreme Court in part because of her religion:

"People are interested to know why I picked Harriet Miers," Mr. Bush said. "They want to know Harriet Miers's background. They want to know as much as they possibly can before they form opinions."
"Part of Harriet Miers's life is her religion," Mr. Bush went on, in remarks that may be revived during Ms. Miers's confirmation hearings before the Senate Judiciary Committee several weeks from now. "Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas."


Mr. Dobson said he talked to Mr. Rove on Oct. 1, two days before Mr. Bush announced his choice, and had been told that "Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she has taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."

In addition to being Christian, Harriet Miers is a strict "orginalist", we are told.

Now you notice that I haven’t said a word about what her “legal politics” are. What ever that is. To my knowledge she doesn’t have any. She appears, as I have observed, to be a strict constructionist if by that term one means not using the courthouse or the law to ” legislate from the bench.” On more than one occasion I have been in meetings and conferences with her when she would look over at me or someone and say: “what’s the law?” Not, “what result do you want to squeeze out of the question “, but “what’s the law”?

OK. Now here's the kicker:

Amendment I - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So (and follow me here), (Part A) she was chosen (in part or whole) for the religion she believes in, and (Part B) she strictly reads the US Constition, and (Part C) the US Constition says that there should be some sort of wall between religion and government.

If A, and if B, and if C, then logically D: Harriet Miers first act as a Supreme Court judge should be to resign for her appointment violated the first amendment of the Constitution. (If she wants, she can just withdraw now, pointing to this logic.)

I mean, it's just logical, right?

Posted by baltar at October 13, 2005 01:01 PM | TrackBack | Posted to Law and the Courts


Cute idea and I get the point - but technically I think she'd have to be a law passed by Congress for this to necessarily hold.

Posted by: Armand at October 13, 2005 01:56 PM | PERMALINK

Or as Mark Kleiman put it today on his blog - "So I reluctantly conclude that the use of religious bigotry by a President in selecting his appointees is stupid, nasty, and unAmerican, but it's not unConstitutional."

Posted by: Armand at October 13, 2005 01:58 PM | PERMALINK

Weeellll, I think that depends on how you choose to interpret that first amendment. Strictly, all it says is that Congress can't establish a (state) religion. Which means (strictly) that the President could proclaim a state religion (or, I guess, the courts - neither is specifically prohibited).

Over the years, we've interpreted this in a variety of ways, but my argument isn't completely out of bounds. But then, you have to interpret the dang Constitution in order to make it work.

Posted by: baltar at October 13, 2005 02:20 PM | PERMALINK

Interpret the Consitution!?!?!?! How dare you suggest such a thing.

Are you some kind of pinko commie Baltar? Or do you merely hate Jesus? ;)

Posted by: Armand at October 13, 2005 02:57 PM | PERMALINK

I think I'm working myself up to a front page post about "interpretation" and "originalism". As I understand it, "originalism" argues that if it isn't in the constitution, then the Federal level doesn't have anything to say about it, so it goes back to the states (hence, abortion is a state decision). By that logic, you can't have a ruling on, say, telephones, because it wasn't in the Constitution, so the Feds can't say anything about it. It just makes no sense.

Posted by: baltar at October 13, 2005 04:09 PM | PERMALINK

i'm going to try not to get all worked up into a froth over this silliness, and i'm grateful for the various citations regardless, but here are a few of the problems i've picked up in the above discussion:

1) originalism is not the same as strict constructionism. originalism is an intent-driven idea requiring judges to consider the original understanding (i.e., by the framers) of the constitution. strict construction, by comparison, says we can't know the framers' intention, and so we have only the text we inherited to guide us. this text had specific meanings that do not leave significant interstices.

in this sense, originalism, unlike strict constructionism, bears an uncanny resemblance to modern living constitution theories, the chief difference being the degree of literalness one assumes of the framers: whether they expected their specific intent to govern based on conditions and compromises at the time of drafting, or whether their intent was to create a more dynamic document.

neither of these theories, nor of course the notion of a living constitution, preclude the federal government from concerning itself with telephones. for matters such as these there are the power of the purse, the commerce clause, the contract clause, and various other enumerated powers.

2. strictly speaking, the 1st amendment does not bind the courts or the president precisely because, strictly speaking, they make no laws, period. furthermore, under a by now hidebound reading of the constitution, the first amendment is incorporate by the fourteenth and extended to the states, hence largely vitiating the precise body picked out by the usage of "congress" (though it is still, fundamentally, a restraint on law-making bodies -- in contemporary understanding, legislatures and administrative agencies, many of which are executive in provenance).

3. even i everything you said is correct, baltar, miers would not be obligated to resign. indeed, she'd be violating the constitutional prohibition on sua sponte action in courts absent instant controversies. rather, someone would have to seek her removal, probably in an obscure and passingly rare appeal to SCOTUS's original jurisdiction, and the eight justice's who are not miers would have to consider the case.

there is, of course, impeachment, but i'm not sure any of the above, under any interpretation, constitutes a high crime, misdemeanor, or another enumerated basis to seek impeachment.

let's not be as sloppy as our adversaries on this topic. this is an opportunity to educate people. all judging is interpretation -- it's only a question of guiding lights.

Posted by: joshua at October 13, 2005 07:07 PM | PERMALINK
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