# Harriet Miers? **URL:** \ **Category:** Great Debates\ **Created:** [October 3, 2005, 12:14pm UTC](https://boards.straightdope.com/t/harriet-miers/324556 "2005-10-03T12:14:06Z")\ **Posts on this page:** 20\ **Page:** 18
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [October 11, 2005, 9:16pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/341 "2005-10-11T21:16:06Z")
> [@John Mace](#): > > No one claims that originalists always come to the same conclusion, and no one would consider the 3/5 rule to be part of the constitution, since slavery is explicitly banned by an amendment (can’t remember which one now). 13th. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 11, 2005, 10:10pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/342 "2005-10-11T22:10:20Z")
> [@John Mace](#): > > … That was a rather weak attempt at scaremongering on your part, **luc** … Oh, dearee me, I simply must remember to include smilies for the benefit of the irony-impaired. Its just that I tend to think my japery is so obvious… I shall endeavor to be more inclusive. > [@](#): > > …I favor a complete seperation of church and state as well as SSM. But I wouldn’t argue that the constittion requires either one of those things… I can, and do. The argument, brutally oversimplified, is that the state which the Constitution so imperfectly attempts to structure cannot exist without the secular wall, that if religious views are permitted to seethe into the body politic, disaster will ensue. The Constituion not being a suicide pact, we may safely presume that our Founding Fuckups were at least as aware of this crucial fact as we, if not more so. As to SSM, I simply hold that it is not necessary to find permission in the original text, so long as you cannot find forbiddance. The Cabinet office of Primate of Washington is forbidden, and for good reason. Forbidding the union of Mr and Mr Bruce has no such impelling motive, and must not be abridged unless such a compelling motive is discovered. > [@](#): > > …If you want to comnpletly politicize the SC nomination process, be my guest. Your political side will lose that contest 9 times out of 10… This tends to be the case, as we are generally in opposition to money and power. We should give up, I suppose. Would you? But at the very least, let us not pretend that the process is not already entirely politicized, and by forces intent on setting thier seal on the Court’s future course. They are intent, for instance, to overturn RvW, despite clear evidence that they lack the support of the majority of their fellow citizens. How much more “political” can you get without an actual _coup d’etat_? > [@](#): > > …\*I don’t claim to understand Bork’s philososophy, nor do I claim to see things his way. But it’s close enough for government work, or this debate. I have read large chunks of _Slouching Towards Gommorah_, and found myself perversely flattered. I had no idea that me and mine, with our beads, incense and pubic lice had shaken the very foundations of Western Incivility. Frankly, I rather doubt it, but if we gave Bork the willies, well, that’s _something_, at least. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 11, 2005, 11:00pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/343 "2005-10-11T23:00:38Z")
> [@elucidator](#): > > Oh, dearee me, I simply must remember to include smilies for the benefit of the irony-impaired. Its just that I tend to think my japery is so obvious… I shall endeavor to be more inclusive. Oh wait, it was… um… ironic! Yeah, that’s the ticket. Irony. It was meant as irony. > [@](#): > > I can, and do. The argument, brutally oversimplified, is that the state which the Constitution so imperfectly attempts to structure cannot exist without the secular wall, that if religious views are permitted to seethe into the body politic, disaster will ensue. The Constituion not being a suicide pact, we may safely presume that our Founding Fuckups were at least as aware of this crucial fact as we, if not more so. As to SSM, I simply hold that it is not necessary to find permission in the original text, so long as you cannot find forbiddance. The Cabinet office of Primate of Washington is forbidden, and for good reason. Forbidding the union of Mr and Mr Bruce has no such impelling motive, and must not be abridged unless such a compelling motive is discovered. Well golly gee whiz, it sure sounds simple when you put it that way. Let’s try your technique on something else. How’s about… Minimum Wage. Nothing in there that forbids me from hiring Joe down the street and paying him less than some fixed amount. Can I expect you to come rushing to my defense if I start a thread titled “Resolved: the MW is unconstitutional”? Now, that would be ironic! > [@](#): > > This tends to be the case, as we are generally in opposition to money and power. We should give up, I suppose. Would you? But at the very least, let us not pretend that the process is not already entirely politicized, and by forces intent on setting thier seal on the Court’s future course. They are intent, for instance, to overturn RvW, despite clear evidence that they lack the support of the majority of their fellow citizens. How much more “political” can you get without an actual _coup d’etat_? It is not entirely politicized, but it is largely so. Most Republicans voted for RBG, and many Democrats voted for JR. But your method of ditching original intent ensures that the process is politicized. > [@](#): > > I have read large chunks of _Slouching Towards Gommorah_, and found myself perversely flattered. I had no idea that me and mine, with our beads, incense and pubic lice had shaken the very foundations of Western Incivility. Frankly, I rather doubt it, but if we gave Bork the willies, well, that’s _something_, at least. Haven’t read it. Probably won’t. I’ll take your word for it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 11, 2005, 11:01pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/344 "2005-10-11T23:01:40Z")
> [@Liberal](#): > > 13th. Thanks. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [October 11, 2005, 11:35pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/345 "2005-10-11T23:35:15Z")
> [@John Mace](#): > > Thanks. You’re welcome, but in retrospect I should have pointed out that although the 13th abolished slavery, it did not abolish the 3/5 rule. That was the 14th. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 12, 2005, 12:06am UTC](https://boards.straightdope.com/t/harriet-miers/324556/346 "2005-10-12T00:06:49Z")
> [@John Mace](#): > > Oh wait, it was… um… ironic! Yeah, that’s the ticket. Irony. It was meant as irony… Lets do it this way: I’ll tell you the truth and you can believe whatever you bloody well please. Works for me. > [@](#): > > Well golly gee whiz, it sure sounds simple when you put it that way… Yeah, that’s why I used the words “brutally oversimplified”. C’mon, **John** , play fair. > [@](#): > > …Let’s try your technique on something else. How’s about… Minimum Wage. Nothing in there that forbids me from hiring Joe down the street and paying him less than some fixed amount. Can I expect you to come rushing to my defense if I start a thread titled “Resolved: the MW is unconstitutional”? Now, that would be ironic!.. Remove “minium wage”, replace with “child labor”. Hows it look now? You can always find an absurdity to apply, as you know better than I, having read more of these debates. Your problem lies in your attempt to rigidify and define the Constitution outside of its purpose: the mechanisms of democracy and justice. Put very, _very_ simply, that which is unjust and anti-democratic is “unconstitutional”. Any man who is willing to parse and interpret the Constitution in order to advance the notion that injustice is beyond the powers of the people’s government is unworthy of America. And usually, a running dog jackal of the ruling class. > [@](#): > > …But your method of ditching original intent ensures that the process is politicized… Bah! Humbug! Politics is a human endeavor, part emotional, part spiritual, part moral, and with minor dashes of intellectualism. The process is politicized in much the same war that fucking is sexual… ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 12, 2005, 12:15am UTC](https://boards.straightdope.com/t/harriet-miers/324556/347 "2005-10-12T00:15:04Z")
…in the same _way_ that fucking is sexual… Sheeesh! ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 12, 2005, 12:15am UTC](https://boards.straightdope.com/t/harriet-miers/324556/348 "2005-10-12T00:15:30Z")
> [@ElvisL1ves](#): > > If you’re looking for a reason to oppose her, btw, there’s precedent for using mediocrity alone as a sufficient one. That’s been pointed out previously. And we can’t forget [Federalist #76](http://federalistpapers.com/federalist76.html): > [@Alexander Hamilton](#): > > It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. ISTM that the only way to keep “the possibility of rejection” alive is to reject, when clearly the President has nominated someone clearly “being in some way or other personally allied to him,” and very likely “possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.” I don’t know if you’re in the “original intent” school, but I’d say this is the sort of action that would fulfill that intent. In spades. (BTW, in answer to your question about my ‘borking’ post, I’m not sure what you’re after. I pointed out that Bork was borking Miers. That was all; there were no subtle hidden meanings.) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 12, 2005, 12:22am UTC](https://boards.straightdope.com/t/harriet-miers/324556/349 "2005-10-12T00:22:40Z")
> [@elucidator](#): > > Lets do it this way: I’ll tell you the truth and you can believe whatever you bloody well please. Works for me. What, huh? I was being sarcastic. Next time I’ll remember the smilies. 🙂 > [@](#): > > Yeah, that’s why I used the words “brutally oversimplified”. C’mon, **John** , play fair. Then let’s just ditch your analysis and start over again. On second though, let’s not start all over again. That’s what this entire thread was about, and there is nothing simple about interpreting the consitution. > [@](#): > > Remove “minium wage”, replace with “child labor”. Hows it look now? You can always find an absurdity to apply, as you know better than I, having read more of these debates. It looks the same to me. I don’t see that the constitution gives the Feds the right to regulate intrastrate commerce. Period. That authority should lie with the states, as does the authority to regulate marriage. > [@](#): > > Your problem lies in your attempt to rigidify and define the Constitution outside of its purpose: the mechanisms of democracy and justice. Put very, _very_ simply, that which is unjust and anti-democratic is “unconstitutional”. Any man who is willing to parse and interpret the Constitution in order to advance the notion that injustice is beyond the powers of the people’s government is unworthy of America. And usually, a running dog jackal of the ruling class. Well, it’s a good thing that we all agree on what injustice is, then, isn’t it? Otherwise, we’d be back to the not-so-simple mechanisms that are in use today. But, no, that’s not a good way to look at the constitution. If it were, we wouldn’t need the damn thing in the first place. We could just replace it with your platitude about justice and democracy. You can’t have it both ways, **luc**. You can’t claim to ditch the constitution when it doesn’t suit your purpose and then seek it out in defense of what does suit your purpose. I’m getting a sense of deja vu all over again for some reason, so I’m just going to leave it at that, at least in this thread. > [@](#): > > Bah! Humbug! Politics is a human endeavor, part emotional, part spiritual, part moral, and with minor dashes of intellectualism. The process is politicized in much the same war that fucking is sexual… By that, I’ll take it that you mean we’re fucked by politics, and simply say: I’ll drink to that! ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [October 12, 2005, 12:33am UTC](https://boards.straightdope.com/t/harriet-miers/324556/350 "2005-10-12T00:33:23Z")
[Chickenhawks](http://www.family.org/welcome/press/a0038214.cfm): > [@](#): > > **James Dobson** : > my conversation with Deputy White House Chief of Staff, Karl Rove, that occurred on October 1st, just a few days ago. > … > But we also talked about something else, and I think this is the first time this has been disclosed. Some of the other candidates who had been on that short list, and that many conservatives are now upset about were highly qualified individuals that had been passed over. Well, what Karl told me is that some of those individuals took themselves off that list and **they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter, that they didn’t want to subject themselves or the members of their families to it**. > > So, even today, many conservatives and many of ‘em friends of mine, are being interviewed on talk shows and national television programs. And they’re saying, “Why didn’t the President appoint so-and-so? He or she would have been great. They had a wonderful judicial record. They would have been the kind of person we’ve been hoping and working and praying for to be on the Court. Well, it very well may be that those individuals didn’t want to be appointed. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 12, 2005, 12:35am UTC](https://boards.straightdope.com/t/harriet-miers/324556/351 "2005-10-12T00:35:32Z")
> [@RTFirefly](#): > > And we can’t forget [Federalist #76](http://federalistpapers.com/federalist76.html): > > ISTM that the only way to keep “the possibility of rejection” alive is to reject, when clearly the President has nominated someone clearly “being in some way or other personally allied to him,” and very likely “possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.” It’s not a bad reason to at least consider rejection. It’s very reasonable to be suspicious of her ability to objectively rule on cases concerning presidential powers, especially for this president. And we can expect the court to have to do so considering how much Bush likes to push the envolope. > [@](#): > > I don’t know if you’re in the “original intent” school, but I’d say this is the sort of action that would fulfill that intent. In spades. It might be one data point, if one were inclined to use these types of documents to determine original intent. But you’d be wise to find more than one data point. If you were an originalist of the textualist school, like Scalia, I doubt that you’d consider that document as relavent. To determine that, you’d have to specify which particular word or phrase in the constitution you are having trouble with that this document sheds light on. But I’m not sure how “original intent” comes into play here, since we’re not asking the SCOTUS to consider whether or not the Miers nomination is constitutional. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 12, 2005, 2:49pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/352 "2005-10-12T14:49:16Z")
> [@RTFirefly](#): > > (BTW, in answer to your question about my ‘borking’ post, I’m not sure what you’re after. I pointed out that Bork was borking Miers. That was all; there were no subtle hidden meanings.) Right, you were using the word in the sense that the Democrats used when borking Bork. But the word’s meaning _as used in the GOP Stylebook_\* has become common enough that what you said is capable of misinterpretation, as John’s replies have shown. Nice find in the Federalist Papers - that’s a fine pre-emptive strike on the self-styled federalists of today. It just doesn’t have the same ring as Sen. Hruska’s comment about Carswell, though: > [@](#): > > Even if he is mediocre, there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Cardozos, and Frankfurters, and stuff like that there. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 12, 2005, 3:38pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/353 "2005-10-12T15:38:40Z")
> [@elucidator](#): > > Your problem lies in your attempt to rigidify and define the Constitution outside of its purpose: the mechanisms of democracy and justice. Put very, _very_ simply, that which is unjust and anti-democratic is “unconstitutional”. Any man who is willing to parse and interpret the Constitution in order to advance the notion that injustice is beyond the powers of the people’s government is unworthy of America. And usually, a running dog jackal of the ruling class. I think this is a very succinct and honest summary of how many people feel about the Constitution. Regardless of what the words say, they feel that the Constitution stands for the proposition that the government, state and federal, must be just and democratic, and they have no problem in saying that anything which is unjust or anti-democratic is “unconstitutional.” Here’s why I believe that’s an unwise approach to judicial interpretation. It puts into an unelected, lifetime tenured judge’s hands the power to decide almost anything, simply based on his personal ideals of justice and democracy. You may revel in the triumph of justice when a judge finds, say, an individual right to adult private consenting sexual behavior. But that precise rationale could be used to find that minimum wage laws are unconstitutional. After all, if two adults have the right to private determine which body parts they may rub against each other, they certainly have the right to determine what one will pay the other to paint a fence. The state, which has no justification to prohibit Ben and Steve from literally assfucking each other, by the same reasoning has no power to prevent Ben from figuratively assfucking Steve by paying him a tiny wage, as long as Ben and Steve are both consenting adults. As long as you and the judges agree on what “just” and “democratic” mean, then it’s no problem. You have simply selected a wise and beneficient set of rulers for the country. But when you and the judges no longer agree on “just” and “democratic,” we have a slight problem… one that will last the lifetime of the judges in question. On the other hand, when you restrict judges to the METHOD of interpreting only the words that are written, you keep the power in the hands of the folks writing the words. Now, of course, they too can decide that minimum wage isn’t a good idea. The difference is that you can get rid of them in a couple of years. I want the power to rule placed in the hands of guys that I can kick out if I don’t like what they’re doing. Your approach puts too much power in the hands of guys that are, like kings, on the throne for life. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 12, 2005, 3:44pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/354 "2005-10-12T15:44:58Z")
The other obvious problem is that what is “democratic” is very often not “just”. In fact, what \*\*elucidator \*\*is propposing pretty much to dispenses with the whole idea of democracy in favor of justice handed down by a handful of unelected members of the judiciary. I’m sure he doesn’t really want that, and would be dismayed if it actaully came about, but it is the logical result of his proposal. Let’s look at the SSM issue. Do we go with the democratic solution or the solution dictated by justice (assuming, for the sake of argument, that justice = legalilze SSM)? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 12, 2005, 9:18pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/355 "2005-10-12T21:18:33Z")
> [@John Mace](#): > > It’s not a bad reason to at least consider rejection. It’s very reasonable to be suspicious of her ability to objectively rule on cases concerning presidential powers, especially for this president. And we can expect the court to have to do so considering how much Bush likes to push the envolope. I agree with you that far. White House Chief of Staff Andy Card was [helping make that point](http://www.prospect.org/weblog/archives/2005/10/index.html#008005) last night: > [@](#): > > At which point Card himself turned constitutional scholar. As White House chief-of-staff, he found the most intriguing article, he said, to be Article II, which established the presidency and the executive branch. Miers, he continued, understood Article II as well, and would defend it “when challenged by those given the power to challenge it by Article I [i.e., the Congress] and Article III [i.e., the courts].” > > Thus ended Card’s constitutional disquisition – not a moment too soon, as he had managed to conflate Miers’ duties as White House counsel with what he seemed to be saying was her judicial philosophy on executive power. The problem is, if there is no point at which the advisability of _considering_ rejection becomes the necessity of actually rejecting a nominee, then consideration doesn’t mean much. In this case, it’s clear that the President is giving little heed to the “possibility of rejection” due to cronyism; consequently, it’s not exactly informing his choices. The only way to counteract that is to reject his choice. > [@](#): > > It might be one data point, if one were inclined to use these types of documents to determine original intent. Numerous data points are necessary when one is trying to draw conclusions about a large population through sampling. But here, we’re talking about the intent of a handful of men, and Hamilton’s testimony in this regard is generally regarded as fairly reliable. And his testimony here speaks _precisely_ to the point. > [@](#): > > But I’m not sure how “original intent” comes into play here, since we’re not asking the SCOTUS to consider whether or not the Miers nomination is constitutional. 1. Hamilton’s contemporaneous writings certainly reflect _his_ intent, and the Federalist Papers are generally regarded as shedding light on what the Framers collectively meant when they wrote the Constitution. That’s what one would presumably mean by ‘original intent.’ 1. We’re asking the _Senate_, not the SCOTUS, to interpret the ‘advice and consent’ phrase. The Senate _must_ do that; the SCOTUS _can’t_. 2. The _Federalist_ passage I quoted (not my catch, btw; it’s been quoted frequently in the blogsphere in recent days) sheds light on how the Framers felt the Senate should apply that phrase to a situation like this one. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 12, 2005, 10:07pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/356 "2005-10-12T22:07:40Z")
> [@RTFirefly](#): > > I agree with you that far. > > White House Chief of Staff Andy Card was [helping make that point](http://www.prospect.org/weblog/archives/2005/10/index.html#008005) last night: > The problem is, if there is no point at which the advisability of _considering_ rejection becomes the necessity of actually rejecting a nominee, then consideration doesn’t mean much. > > In this case, it’s clear that the President is giving little heed to the “possibility of rejection” due to cronyism; consequently, it’s not exactly informing his choices. The only way to counteract that is to reject his choice. There’s cronyism and there there’s **cronyism**. A “crony” is just a longtime friend. If that “longtime friend” is incompetent, then outright rejection would be called for. For instance, this is the problem people seem to have had with Brown of FEMA. Miers, though a crony, isn’t so obviously an unqualified crony. There isn’t anything inherently wrong with the President nominating a “longtime friend”. I guess it comes down to how she gets sized up during the confirmation hearings. > [@](#): > > Numerous data points are necessary when one is trying to draw conclusions about a large population through sampling. But here, we’re talking about the intent of a handful of men, and Hamilton’s testimony in this regard is generally regarded as fairly reliable. > > And his testimony here speaks _precisely_ to the point. > > 1. Hamilton’s contemporaneous writings certainly reflect _his_ intent, and the Federalist Papers are generally regarded as shedding light on what the Framers collectively meant when they wrote the Constitution. > > That’s what one would presumably mean by ‘original intent.’ Yes and no. Let me quote Scalia’s writings on this exact subject: > [@Scalia in "A Matter of Interpretation"](#): > > I will consult the writings of some men who happened to be delegates to the Constitutional Convention-- Hamilton’s and Madison’s writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Conistitution was originally understood. Thus I give equal weight to Jay’s piece in The Federalist, and to Jefferson’s writings, even though neither of them was a Framer. What I look for in the Constitution is… the original meaning of the text, not what the original drafstman intended. In short, I think there are significant differences in the way someone like Scalia uses the term “originalism” and the way you are using it. He might agree with your conclusion on this particular point, but not because he thinks Hamilton has the final word on every constitutional issue. Hence my comment about “one data point”. > [@](#): > > 1. We’re asking the _Senate_, not the SCOTUS, to interpret the ‘advice and consent’ phrase. The Senate _must_ do that; the SCOTUS _can’t_. Correct. But “original intent” is generally used when talking about SCOTUS decisions on constiutional matters, that’s all. And few, if any, Senators are equiped with the knowledge that a SCOTUS justice would have on these matters. At any rate, you’ve answered my question-- I wasn’t trying to argue the point, just understand exactly what you menat. > [@](#): > > 1. The _Federalist_ passage I quoted (not my catch, btw; it’s been quoted frequently in the blogsphere in recent days) sheds light on how the Framers felt the Senate should apply that phrase to a situation like this one. Let’s also keep in mind what I said earlier (either in this thread or others). You’ll hear “original intent” from a lot of Republicans, but few of them really know what it means. Many of them are, in fact, conservative activists (usually of the “social” kind) when it comes to interpretting the Constitution. I put Bush in that category, btw. The analog on the other side of the aisle are those who claim that originalism is an “extremist judicial philosophy” but have no problem quoting Madison and other Framers when it suits them. So, I do tend to agree generally with your analysis, and if you want to call “hypocrite” on the Republicans who completely ignore that issue, I won’t disagree. In fact, I already beat you to it (either in this thread or another recent one). 🙂 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 12, 2005, 10:57pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/357 "2005-10-12T22:57:19Z")
> [@Bricker](#): > > I think this is a very succinct and honest summary of how many people feel about the Constitution…in saying that anything which is unjust or anti-democratic is “unconstitutional.”… Not quite. We hold that the Constitution is an expression of the desire to implement justice and democracy, such being the “spirit” of the Constitution. The Constitution is a very imperfect vessel to such laudable goals. For instance, the notion that North Dakota somehow deserves as many Senators as New York is both unjust and undemocratic. Still, as Dr. Johnson said about women writers, its not so much that the dog can walk well, but that the dog can walk at all. In the hands of a just and democratic people, even the imperfect and clumsy mechanisms of the Constitution are workable, a Senator from North Dakota refrains from unjustly exploiting the faults of the Constitution because as a loyal American he shouldn’t, he mustn’t and he shan’t get away with it. The Constitution is ours, we are not its. Without the founding spirit of its creation, its just a pile of words. > [@](#): > > …It puts into an unelected, lifetime tenured judge’s hands the power to decide almost anything, simply based on his personal ideals of justice and democracy… Nonsense. Since when? If a case could have been brought before the Supine Court in 1930, say, that offered the opportunity to legislate from the bench to effect equal rights for black people, would they have been right to rule in its favor? Of course. Would it have made any immediate difference? Most likely not. You wildly exaggerate the power placed in these people. My Cherokee ancestors still hear the words “Mr. Marshall has made his decision, now let him enforce it.” (Which reminds me, next person going to Hell, would you please baste Andy Jackson?) > [@](#): > > …You may revel in the triumph of justice when a judge finds, say, an individual right to adult private consenting sexual behavior. But that precise rationale could be used to find that minimum wage laws are unconstitutional… Well, not everybody needs sex, but damn near everybody needs money. But yes, of course you’re right, the hyper-literalist mindset can bend the same rationale to fit wildly disparate subjects. They do that to you in law school, right? Does it hurt? > [@](#): > > …After all, if two adults have the right to private… by paying him a tiny wage, as long as Ben and Steve are both consenting adults… [Cartman]That analogy is so gay![/C] Steve is consenting, is he willing, as well? Enthusiastic? Do Steve and Ben approach this situation as equals? Or is Steve obligated to accept the unwelcome intrusion of Ben due to economic or legal weakness? If Ben takes advantage of Steve’s relative poverty or powerlessness to Steve’s detriment, he is a reptile and a criminal. Why would you imagine that forcibly raping Steve is any less of a crime than impoverishing his children? > [@](#): > > …You have simply selected a wise and beneficient set of rulers for the country… Oh, Hell, no! They are but one of a set of such rulers, mutually cooperative and mutually antagonistic. The Founding Fuckups built it that way. This hampers the efficiency of fledging tyranny, having to keep all the plates spinning. They thought it was a good idea, overall, not too bad. Sorta kinda. > [@](#): > > …On the other hand, when you restrict judges to the METHOD of interpreting only the words that are written, you keep the power in the hands of the folks writing the words… But the words are already written. Whats the point in keeping power in the hands of men long, long dead? I don’t want power in their hands, I want it in ours. I want the interpretation done from the present viewpoint, with all its change and progress from those days intact and relevant. We ain’t in Kansas anymore, Toto. > [@](#): > > …I want the power to rule placed in the hands of guys that I can kick out if I don’t like what they’re doing. Your approach puts too much power in the hands of guys that are, like kings, on the throne for life. Are we still talking about the Supreme Court? Are you suggesting we do away with its power to declare legislation unconstitutional? Seems rather a different kettle of piranha, if that’s where you’re going with this. Advise. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 12, 2005, 11:11pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/358 "2005-10-12T23:11:36Z")
> [@elucidator](#): > > Nonsense. Since when? If a case could have been brought before the Supine Court in 1930, say, that offered the opportunity to legislate from the bench to effect equal rights for black people, would they have been right to rule in its favor? Of course. Would it have made any immediate difference? Most likely not. You wildly exaggerate the power placed in these people. My Cherokee ancestors still hear the words “Mr. Marshall has made his decision, now let him enforce it.” OK, that’s a good point. The power of the courts is not unlimited. But under your plan, it would get much closer than it should. The Supreme Court under John Marshall didn’t have the decades of tradition backing it up that it does now. You’re right that Marshall’s Court couldn’t impose its will without limit. But can you imagine a similar event today? I cannot. On your other example… I’m not so sure. Are you suggesting that in 1930, the Supreme Court’s ruling on a Brown-like case would have fallen flat, but in 1954 the time was ripe? > [@](#): > > Well, not everybody needs sex, but damn near everybody needs money. But yes, of course you’re right, the hyper-literalist mindset can bend the same rationale to fit wildly disparate subjects. They do that to you in law school, right? Does it hurt? Not a law school trick. All that’s needed is a True Believer, a judge that honestly and sincerely believes in, say, the libertarian principles of non-coercion. He’ll have no problem in gutting minimum wage, and he won’t be dishonest or hyper-literal. He’ll just be doing his duty, exactly following your instructions… only he won’t agree with you. THAT is the problem, **elucidator** : people of good faith and reasoned beliefs can still end up with positions that don’t square with yours. > [@](#): > > Oh, Hell, no! They are but one of a set of such rulers, mutually cooperative and mutually antagonistic. The Founding Fuckups built it that way. This hampers the efficiency of fledging tyranny, having to keep all the plates spinning. They thought it was a good idea, overall, not too bad. Sorta kinda. OK. Doesn’t change my point, though: if one set of rulers is unelected and governs for life, and the other set is elected every two, four, or six years, which set is going to amass more power? My argument for keeping power out of their hands is just as strong, even if they’re not the only rulers. > [@](#): > > I don’t want power in their hands, I want it in ours. I want the interpretation done from the present viewpoint, with all its change and progress from those days intact and relevant. We ain’t in Kansas anymore, Toto. OK. But again: if the “change” and “progress” isn’t viewed the same way by the judges, how is that power is your hands? Seriously: judges that view the unborn as deserving of full constitutional protection, judges that view the rights of adults to contract freely with each other as paramount… they would say, honestly, that they are enforcing progress and good, wise change. > [@](#): > > Are we still talking about the Supreme Court? Are you suggesting we do away with its power to declare legislation unconstitutional? Seems rather a different kettle of piranha, if that’s where you’re going with this. Advise. No, I think they should keep that power. But I think we should select people for that position that are deferential to the written law, because we can change the written law easier than we can change the judges. What approach maximizes our collective freedom? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 12, 2005, 11:41pm UTC](https://boards.straightdope.com/t/harriet-miers/324556/359 "2005-10-12T23:41:14Z")
> [@elucidator](#): > > But the words are already written. Whats the point in keeping power in the hands of men long, long dead? I don’t want power in their hands, I want it in ours. I want the interpretation done from the present viewpoint, with all its change and progress from those days intact and relevant. We ain’t in Kansas anymore, Toto. Emphasis added. What does the “present viewpoint” say about SSM? With the power in our hands, what will the result be? ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [October 13, 2005, 2:38am UTC](https://boards.straightdope.com/t/harriet-miers/324556/360 "2005-10-13T02:38:39Z")
I’m starting to have some serious doubts about Miers. She is being “pushed” as being very religious, an evangelical christian. She worked (I believe) to oppose abortion. She is a long time crony of GW Bush, from way back. There is precious little useful information about her. When Roberts was “submitted” as a potential Justice, conservatives made a lot of noise that his religious background should not be a factor and should not be discussed. Now with Miers, it’s all we hear about (maybe because there is nothing else), except for “I’m Bush and I like her, trust me”. I wasn’t aware that the constitution (which she is expected to interpret soon) allowed the appointment be along religious lines, or that it be a qualifier or requirement for the job. I am concerned that she might use the Court to further her own religious beliefs at the expense of others too. > [@Constitution](#): > > “Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” [Previous page](https://boards.straightdope.com/t/harriet-miers/324556.md?page=17) [Next page](https://boards.straightdope.com/t/harriet-miers/324556.md?page=19)