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Judging Harriet Miers: Miers too narrow


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Dan Post
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By Dan Post
Arizona Daily Wildcat
Tuesday, October 11, 2005
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President Bush and his new Supreme Court nominee, Harriet Miers, have extended the conservative rhetoric beyond the usual denunciation of activist judges and legislating from the bench.

Last week, Bush straightforwardly admitted that as a judge, Miers will "strictly apply the law and the Constitution;" in other words, that she is a strict constructionist. Miers, in her acceptance speech, said, "It is the responsibility of every generation to be true to the Founders' vision of the proper role of courts in our society."

Bush and Miers don't mince their words, and this presents a serious problem. Here is why: There is no such thing as a true strict constructionist.

Strict constructionism as a judicial philosophy means interpreting the Constitution by taking a narrow reading of the Constitution as the Framers intended. In other words, because the language of the Constitution is often ambiguous in nature, a strict interpretation should follow what the Framers intended it to mean.

In theory this is a rational thought process; we didn't create this government and this constitution, so it is our duty to uphold the intentions of the people who did. But, that would presume that the original intent of the Framers is known, when nothing could be further from the truth.

To find the intent of the Framers, you would first need to know just who the Framers are.

As legal scholar Ronald Dworkin asks, are the Framers the "publicists who structured the debate following the drafting of the Constitution, leading up to its ratification?" Or, Dworkin asks, "Are you talking about the state legislators involved in the ratification process?"

Most conservatives would argue that the Framers are the group of people who met at the Constitutional Convention in Philadelphia. Assuming they are correct, then to which of these representatives do we refer to find intent?

The Constitutional Convention attendees represented diverse backgrounds and viewpoints, and the final document produced there was not a representation of one person's point of view, but rather a compromise of different interests and political philosophies. The Framers didn't speak as a monolith; as such, no single idea about the Framers' intent can be claimed as superior to all others.

Consider the Eighth Amendment, which bars cruel and unusual punishment. The words cruel and unusual are relative terms. There is no absolute level at which a punishment becomes cruel. The Framers inserted this ambiguous language purposefully, intended as a compromise between people who saw cruel and unusual punishment differently. The Framers who compromised about this would not be impressed by contemporary strict constructionist judges who claim that this language can be considered as clear support for the death penalty.

Even if you could point to one idea as indicative of the Framers' intent, then other factors still confound this type of strict interpretation. The world has changed and modernized a great deal since the 18th century; today we live in entirely different social, political and economic circumstances than the Framers did. There is no way to determine what the Founders would have thought about elements of society that didn't even exist when they lived.

For example, the Framers weren't aware of new technologies for capital punishment such as lethal injection and electrocution. How would a strict constructionist be able to determine if these methods are cruel and unusual based on Framers' intent?

Clearly, a justice's own personal and political biases must come into play when considering such a question. This means there are no real strict constructionists. It's a myth, a lie, a piece of conservative rhetoric aimed at rationalizing conservative ideologies.

Oftentimes, conservatives will defend their ideologies by invoking a strict constructionist interpretation. They will say things like "The Framers were mostly Christian, and so they must have thought it legal to display the Ten Commandments in government buildings and hold prayer groups in public schools." But they conveniently leave out alternative interpretations of the Framers' intentions.

The reality is that this type of reasoning is only propaganda, a means to support a conservative agenda with a blanket term that ascribes their belief system to the Framers' belief system. We should really be concerned about Harriet Miers' unequivocal claims that she will strictly apply the Constitution and follow the vision of the Framers, because she is subscribing to a theory of judicial interpretation that is baseless.


Dan Post is a senior majoring in ecology and anthropology. He can be reached at letters@wildcat.arizona.edu.



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