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Introduction
At
1:06 P.M. EDT today, Tuesday October 18, 2005, White House Press
Secretary Scott McClellan gave a very interesting Press Briefing.
McClellan began by giving an update on the President’s day.
He
reported that the President had had a meeting with James Wolfenson,
discussing the situation in Gaza. Next, the Press Secretary stated that
the President would be welcoming President Abbas to the White House
later this week, and that he looked forward to talks with him on
Palestine.
McClellan
rounded off his briefing by mentioning the discussion with President
Barroso of the European Commission, and lastly that this afternoon the
President looked forward to signing the Department of Homeland Security
Appropriations bill. Without further adieu, he opened the floor to
questions.
The
recital of how splendidly well the President’s day had been was
sobering information for the news journalists assembled. McClellan did,
however, earn his money during the question and answer period that
followed.
The
first set of questions fielded by the Press Secretary all centered on
the White House’s nomination of Harriet Miers for a seat on the
Supreme Court. This author has no opinion on either the qualifications
or the nomination of Harriet Miers for a seat on the bench. The
following is written as a discussion of certain remarks that Press
Secretary Scott McClellan made during the briefing.
Also,
no personal reflection upon Mr. McClellan is meant or intended. The crux
of the matter rests on what was said – not who said it; and that what
was said is a reflection of the status quo of our elected
representative’s ingrained beliefs and ideology concerning The
Constitution of The United States.
And
furthermore, that perhaps such beliefs are grounded on a
misunderstanding of The Constitution.
It
is towards a better understanding of Our Constitution and freedoms that
we now precede.
What Was Said
“Q
Scott, the material that the White House sent to the Senate today about
Harriet Miers' nomination included a 1989 questionnaire that said that
she supported a constitutional amendment to ban abortion except to --
when the life of a mother is at stake. Do you take that 1989 statement
to be a conclusive statement of her position on abortion?” [1]
“MR.
McClellan: Well, what we take that to be is a candidate expressing her
views during the course of a campaign. The role of a judge is very
different from the role of a candidate or a political office holder. And
what she was doing in that questionnaire was expressing her views during
the course of a campaign. The role of a judge is to apply the law in a
fair and open-minded way. That means looking at the facts, and then
applying the law.”[2]
“Q
So are you saying that what her -- what she registered there might not
be how she might vote as a judge?” [3]
“MR.
McClellan: Well, I think, a couple of things. One, the President looks
at someone's qualifications and experience and judicial temperament when
he's appointing people to the bench. He has a long record of appointing
-- or nominating people to the bench that have a conservative judicial
philosophy. He believes very strongly that we should have strict
constructionists on the Court, people who will strictly interpret our
Constitution and our laws, and not try to make law from the bench.
And
one of the qualities that you look for in someone who is going to serve
on the bench, particularly our -- the highest court in the land, is are
they someone who is fair and open-minded, and that will looks at the
facts of a case and then apply the law. Harriet Miers, just like Chief
Justice Roberts, recognizes that personal views and ideology and
religion have no role to play when it comes to making decisions on the
bench. Your role as a judge is to look at all the facts and then look at
the law and apply the law to that case.” [4]
Much
more was asked and replied to then the above, however, what we are
interested in discussing is contained in the above quoted passages.
Nothing is being taken out of context, and the reader is free to read
the entire briefing as appended below in the footnotes.
Once
again, the reader is reminded that the issue here is not about the
nomination to the Supreme Court – the issue is what appears to be a
misunderstanding and misinterpretation of The Constitution of The United
States by our elected government representatives.
The First Issue
One
of the main issues of constitutional significance, which poses grave
consequences, if misunderstood and misapplied, is the statement:
“Well,
what we take that to be is a candidate expressing her views during the
course of a campaign. The role of a judge is very different from the
role of a candidate or a political office holder. And what she was doing
in that questionnaire was expressing her views during the course of a
campaign.” [5]
This
is stating that to be a candidate seeking political office is very
different from the role of a judge on the Supreme Court. This may or may
not be true. It is most likely true in certain regards or aspects, and
not true in others.
The
important question is: how does it fare in the weighing of the balance
of the scales of justice regarding the critical issue of upholding The
Constitution. We will revisit this issue in a moment, but first we will
show how it flows together with other comments concerning The
Constitution.
The Second Issue
In
reply to one of the above quoted questions Mr. McClellan stated that the
President:
“...
Believes very strongly that we should have strict constructionists on
the Court, people who will strictly interpret our Constitution and our
laws, and not try to make law from the bench.” [6]
There
are two issues of far reaching consequence within this one sentence. We
will take one at a time.
Just
what is meant by the term “strict constructionists”? Is it a clearly
defined and easily understood, and perhaps more importantly – an
easily applied legal concept?
“Strict
constructionism is a philosophy
of judicial
interpretation and legal
philosophy that limits judicial interpretation to the meanings of
the actual words and phrases used in law, and not on other sources or
inferences. Adherents look strictly at the text in question rather than
relying either on legislative
intent (as gleaned from contemporaneous commentaries or legislative
debate) or on metaphysical
ideas such as natural
law. Two of the doctrine's most forceful proponents have been
Justice Hugo
Black and the late Chief Justice William
Rehnquist.” [7]
Fascinating
to say the least. Without getting to involved here lets take the part
that says “limits judicial interpretation to the meanings of the
actual words and phrases used in law...”
At
first blush, this may sound fairly reasonable. Of interest and
pertinence is a quote from William
H. Rehnquist in a memo to Richard
Nixon about Supreme Court nominees:
“A
judge who is a "strict constructionist" in constitutional
matters will generally not be favorably inclined toward claims of either
criminal defendants or civil rights plaintiffs—the latter two groups
having been the principal beneficiaries of the Supreme Court's
"broad constructionist" reading of the Constitution. [8]
Hmm.
. . “not favorably inclined to civil rights plaintiffs”.
Well,
there’s nothing too vague or difficult regarding a “philosophy of
law” to understand or apply in that statement. I’m not too sure,
however, if it upholds the Constitution all that well.
You
know – that document that We The People created and ordained to state
our inalienable rights, one of which was to create a government, and
another right was to then delegate to that government the limited powers
to protect those self-same rights.
If
the Supreme Court is not favorable to protecting our civil rights, then
who the heck is?
But
then again, no one seems to be sure just what a strict constructionist
is or isn’t. For example, Justice Scalia says:
"I
am not a strict constructionist, and no one ought to be . . . A text
should not be construed strictly, and it should not be construed
leniently; it should be construed reasonably, to contain all that it
fairly means." [9]
Within
the same work he refers to strict constructionism as:
“
. . . a degraded form of textualism that brings the whole philosophy
into disrepute." [10]
Bummer,
now we’ve got the whole philosophy in dispute. I wonder if Press
Secretary McClellan knew about all of these issues and controversies. He
made it sound pretty simple and straightforward.
To
further complicate matters, there’s the question as to whether a
strict constructionist believes that the Constitution should be
interpreted to mean what it originally meant, or what was originally
intended by the writers of The Constitution. Another one of those
conundrums.
The Third Issue
As
Press Secretary Scott McClellan said during the press briefing, the
President believes that the court should be comprised of “people who
will strictly interpret our Constitution and our laws.” Upon first
consideration, this appears to be sound reasoning and policy. But what
exactly does “strictly interpret” mean?
In
its most basic form, the word interprets means to explain the meaning
of, or to make something understandable. So apparently, Mr. McClellan
believes that the President wants the Constitution, and our laws, to be
strictly interpreted, as in to know the meanings of, or to understand.
Which
then raises even more questions, such as, is the Constitution being
strictly interpreted and adhered to.
For
example, does to understand the United States present monetary system,
as reflected in the dollar and exchange rates between various
currencies, mean that one truly understands the Constitutional
definition of a dollar, and the difference between a dollar bill which
is a Federal Reserve Note, and the dollar of the Constitution?
This
also goes towards the concept of marginalism. Marginalists believed that
there are two basic types of marginalism:
-
The
first has to do with being aware of meanings
-
The
second with interpreting not only the meaning but the intent of the
author at the time he wrote the legislation writing.
Needless
to say, the plot continues to thicken, and along with it the ease of
simple understanding. So, let’s try to keep it as simple as possible.
We
will simply address the issue of interpreting the Constitution, and the
fact that the President wants the Supreme Court Justices to strictly
interpret the meaning of the Constitution.
The
Constitution On Money
What
does the Constitution say regarding our money? Is what the Constitution
says about money being strictly interpreted and adhered to as the
President supposedly wants?
Article
I, Section 8,
Clause 5
of the Constitution states: “The Congress shall have Power…To coin Money, regulate the Value thereof, and of foreign Coin, and fix the
Standard of Weights and Measures.”
Article
I, Section 10,
Clause 1
states that: “No State shall…coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debt.”
Article
I, Section 8,
Clause 2
states that: “The Congress shall have Power…To borrow Money on the
credit of the United States.”
Correct
me if I’m wrong here, but printing paper fiat Federal Reserve Notes
(current dollar bills) does not appear to be the same as the
Constitution granting Congress the power to coin money.
Nor
does accepting paper fiat dollar bills sound like the disability
of the Constitution to make any thing but gold and silver coin a
tender in payment of debt.
And
the power granted to Congress to borrow money is not the same as
the power to create money, or to loan money.
All
in all, it appears that Congress, and The Supreme Court, and the
executive branch are all missing the written word of the Constitution
regarding our money and monetary system.
If
more evidence is needed the Coinage
Act, 1792 (The Mint Act)
definitely supplies it.
“DOLLARS
OR
UNITS —each to
be of the value of a Spanish milled dollar as the same is now current, and to contain three hundred and seventy-one grains and
four sixteenth parts of a grain of pure silver, or four hundred and
sixteen grains of standard silver.” [11]
Seems
very clear and plain to me: our money is to be gold and silver coin. The
unit of account was called a dollar. The dollar was defined as a
specific weight of silver – the value of a Spanish milled dollar as
was then current.
Since
there has never been a constitutional amendment to change the above –
it still stands as The Supreme Law of The Land. Which naturally begs the
question – is the Constitution being adhered to regarding our monetary
system, which presently consists of paper fiat Federal Reserve Notes?
Revisiting The First Issue
At
the beginning of this paper, we had stated the first issue under review,
and that we would return to it for further discussion. As we said:
“This
is stating that to be a candidate seeking political office is very
different from the role of a judge on the Supreme Court. This may or may
not be true. It is most likely true in certain regards or aspects, and
not true in others.”
We
will accept whatever ways a candidate seeking political office is
different from the role of a judge sitting on the Supreme Court. The
differences are of no consequence to the matter at hand. What does
matter is on what grounds, especially as related to the Constitution,
that the roles are similar.
Obviously,
both the role of President and the role of a Supreme Court Justice are
of the highest level of importance and responsibility. Accordingly, both
offices have very strict oaths of office that clearly define the duties
and responsibilities of the office holder.
Every
President recites the following oath, in accordance with Article
II, Section I of the U.S. Constitution:
"I
do solemnly swear (or affirm) that I will faithfully execute the office
of President of the United States, and will to the best of my ability,
preserve, protect and defend the Constitution of the United
States." [12]
According
to Title 28, Chapter I, Part 453 of the United States Code, each Supreme
Court Justice takes the following oath:
"I,
[NAME], do solemnly swear (or affirm) that I will administer justice
without respect to persons, and do equal right to the poor and to the
rich, and that I will faithfully and impartially discharge and perform
all the duties incumbent upon me as [TITLE] under the Constitution and
laws of the United States. So help me God.'' [13]
The
President takes an oath of office to preserve, protect, and defend the
Constitution. All Supreme Court Justices swear to faithfully and
impartially discharge and perform all the duties incumbent upon them
under the Constitution.
The
executive branch and the judicial branch of government both swear to
execute their duties of office according to the Constitution.
So,
in regards to their oath of office, as well as in their execution of
their duties of office, it appears that the role of a political
candidate seeking to be President isn’t any different from that of the
role of a Supreme Court Justice. Both are to perform according to the
Constitution. Perhaps Press Secretary Scott McClellan forgot this the
other day during the press briefing.
Conclusion
Three
different and far-reaching issues have been discussed concerning certain
statements made during the recent press conference briefing relating to
the nomination of Harriet Miers for a seat on the Supreme Court. The
issues are:
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Is
the role of a Supreme Court Justice different from that of a
political office holder in all regards, and most importantly and
specifically concerning the role of upholding their respective oaths
of office and the Constitution?
-
If
the Supreme Court is not favorable to protecting our civil rights,
then who is?
-
Are
the clauses of the Constitution concerning the monetary system of
the United States being adhered to by both the executive branch of
government, as well as the judicial, and legislative branches?
As
stated at the beginning of this paper, these issues are not directly
concerned with the nomination of Harriet Miers for a seat on the bench
– per se. They are issues of even greater importance – issues
regarding the understanding and adherence to the Constitution.
As
with all such critical issues, we will leave the answers to the only
authority on all such issues – We The People. Act accordingly. Vote
accordingly.
© 2005 Douglas V. Gnazzo
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