Wednesday, October 05, 2005

New Argument for Miers: Evangelicals are Textualists??

Now the argument for Harriet Miers is turning religious. It goes like this: She is an Evangelical, and Evangelicals interpret the Bible strictly; therefore, she will interpret the Constitution strictly.

How quickly the Evangelicals forget their own hypocrisy. Many of the leading voices in the Terri Schiavo fiasco were Evangelicals. And what was their legal position? Allowing Michael Schiavo to withdraw Terry's feeding tube was an unconstitutional denial of her due process rights. What due process rights would those be? Certainly, we are not speaking of procedural due process; the Schiavo case was in court for years and had countless hearings. No one (and no viewpoint) was denied an opportunity to be heard. There was never a failure to give notice. The decision-makers were neutral and detached, not having prejudged any portion of the case.

So, where was the due process violation? The Evangelicals found it in the substance of the existing Florida law that allowed Michael to proceed to withdraw the feeding tube. In other words, they declared that there is a substantive due process right to life that overcomes any state law allowing a husband to withdraw life support under those circumstances. And what is the major issue on which they now say Harriet Miers is a reliable conservative because of her religion? That she will never find a substantive due process right of privacy in the Constitution because her religion mandates a strict reading of texts. Their beliefs did not mandate a strict reading of the text when Evangelicals wanted a different result.

For personal, moral reasons, I disagreed with Michael Schiavo’s decision to withdraw the feeding tubes. Nonetheless, I defend without hesitation the right of Florida to make laws that allow Michael to make that decision. If I disagree with those laws, I can elect representatives who will pass different laws. I cannot turn to the courts to overturn laws based on a unenumerated rights that I would like to impose on society. There is no legitimacy to substantive due process – not in Griswold, Roe, or Lawrence, and not in the Evangelicals’ Schiavo argument.

The fact that Harriet Miers may be an Evangelical tells me nothing about her judicial philosophy or how she will vote, and it does nothing to convince me that she is qualified to sit on the Supreme Court.


  • At 1:50 PM, Blogger ScurvyOaks said…

    I generally agree with this post. My only quibble is that not all evangelicals took the position re Schiavo that you describe. I was truly appalled by the attempts of Congress and the Administration to interfere with this Florida matter. In addition to being an evangelical, I try to be a principled federalist.

    The extent to which one's views concerning interpretation of the Bible parallel and/or influence one's views on interpretation of the Constitution is a very interesting question. Sanford Levinson addresses it in his book "Constitutional Faith" (which I recommend, although I haven't finished reading it and certainly disagree with some of it). There are some clear and encouraging examples: Hugo Black, brought up as a Primitive Baptist, took a sola-scriptura approach to the Constitution. Black had a low regard for the supposed authority of the papal magisterium, i.e., the Supreme Court. See, e.g., his wonderful dissent in Griswold.

    It would be interesting to know Miers' views on scriptural interpretation. If she has at least thought through these issues, I would feel slightly less uncomfortable. Given her testimony about not reading books, however, I'm not optimistic that her theology is any more analytically developed than her judicial philosophy.

  • At 12:18 PM, Blogger stealthlawprof said…

    Scurvyoaks --

    Your concern that I may have painted with an overly broad brush is apt. Certainly, many evangelicals (like you) saw the inconsistency in the positions on the Schiavo case taken by those who present themselves to the public as the political spokespersons for the evangelical community. It is, regrettably, those same self-appointed spokespersons who have so muddied the Miers debate.

    As to whether Miers has contemplated scriptural interpretation with enough depth of thought to have a sense of interpretational issues generally as she moves to constitutional interpretation, I agree wholeheartedly: the "I don't read books" comment subverts that idea.


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