Bloodless Coup

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.

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."

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.

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

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

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.

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.