A Fundamentalist Jurisprudence?

Miers is a fundamentalist, evangelical Christian. I mean this literally and not as a term of opprobrium. I have great respect for the faith, passion, and sincerity of Protestant Christians, even though I believe their understanding of the faith is incomplete and in some cases incorrect. This movement emphasizes many things, but most prominently it emphasizes the primacy of the Biblical text, which, we are told, individuals can read in good faith to understand the complete truth.

As a Catholic, I do not think individual textual analysis is enough to understand the complete truth of Christianity. Catholics believe in the coequal importance of inherited tradition, what we call the Magesterium. But I think my statement above is a fair representation of the Christian fundamentalist belief system. I believe this theological foundation says something about Miers' likely attitudes about the Constitution. And I do not mean this in the crude way that finds either delight or displeasure in her personal, moral views. Fundamentalism is a way of thinking about texts and knowledge.* Since so much of a judge's work is likewise about texts and their meaning, it's worthy of some consideration.

A type of fundamentalism certainly influences her defenders who argue, like Hugh Hewitt, that the Constitution is basically simple and easily understood and that the complexity of constitutional law represent the accretions of too-smart-for-their-own good activist judges. These folks, we are told, use fancy words and theories to obscure the plain and simple meaning of the constitutional text. Her own words reveal the roots of such a view; she thinks her statement that she wants "to strictly [sic] apply the law and the Constitution" is actually saying something meaningful and precise. There is good reason to believe that judicial and theological understandings mirror one another in this case, both representing a type of populist fundamentalism. The fact that Bush has pointed to her religious views in support of her nomination only adds to the relevance of what exactly her fundamentalist belief system suggests about what kind of judge we can expect her to be. It may ordinarily be unseemly to probe too carefully into a nominees religious views for information about her likely jurisprudence, but here we have so little to go on. Moreover, fundamentalist religious beliefs reflect a broader, more generally applicable fundamentalist epistemology, which definitely does affect jurisprudence.

In the fundamentalist viewpoint, interpretation of any text is simply a matter of a good faith reading of the words to figure out the meaning of a text. Within very narrow limits, fundamentalists believe that all reasonable people will agree about the text of the Constitution, just as they’ll all agree about the meaning of the Bible. Going back to Martin Luther, the importance and possibility of individual interpretations is fundamental to Protestantism, which finds its truest expression in today's evangelicals. While individual fundamentalist communities may come to some consensus on these issues, such a temporary consensus is not a function of converging individual minds; rather such an equilibrium relies on a variety of hidden, controversial, and historically imparted individual understandings, coupled with the leadership of charismatic individuals. (Or are we to believe all Pentecostals somehow differ from all Jehovah's Witnesses because of some freak uniformity of the Churches' members' individual interpretations of the Bible?) The reality of dissensus among unguided individual interpretations is why "fundamentally simple" Christianity has proliferated into so many divergent sects after the Protestant "reformation."

The fundamentalist viewpoint has a deep conflict with the notion of authority, that some types of decisions should be reserved to properly trained and appointed experts. The essence of authority is the view that individual human reason must be guided and restrained both by established tradition and trained leadership. Both fundamentalists and tradition-based belief systems, of course, rely on authority and leadership. The difference with true conservatives (and Catholics) is that their concept of authority is defended openly and explicitly. Pace the fundamentalists, in our view not everything is simple and self evident, most especially the esoteric realm of constitutional law. It’s true that some 1960s era decisions went so far beyond the text as to be laughable; even nonspecialists could see something wrong. But it does not follow that every constitutional decision is easy or self-evident or within the abilities of lay-people and average, untrained lawyers.

Take the executive power to which Miers is so attached. It’s textual roots are very thin; executive warmaking power has been justified by the Courts historically from the constitutional structure, not the laconic grant of war-making power under Article II. The text is augmented by traditional understandings of the executive’s natural role in wartime. But I'd challenge Miers’ to find a clear textual source for her understanding of this issue. And in the absence of such a textual grant, I'd ask her why her resort to tradition, precedent, structure, or universal practice does not violate her putative textualism? A primitive and inarticulate textualism will likely find its decisions influenced by many other sources, most of them inarticualte.

Two images inform Miers' defenders. Critics of "elitism" often decry the notion that we, a free and self-governing people, would submit to "philosopher kings." In contrast, defenders of populism imagine the "regular guy" or in this case girl as someone grounded in reality. Miers' defenders point to her "practical, real world" experience as evidence that she disabused herself of troubling, abstract beliefs that do not function properly in the "real world." But between these extreme images, another image has been lost, that of the priest. The priest is no philosopher-king. His understanding and authority is thoroughly tied to his capacity to be persuasive, within a traditional role with a preordained sphere of influence. The priest performs his function at the intersection of the abstract realm of the spirit and the concrete material world, an intersection brought to completion in the Eucharist. The priest's communion with divine mysteries may not always be understood by the community, but it is also respected, partly for the same reason.

Judges are in a way our secular priests. They wrestle with law in a way that is at once not fully understood by those who are affected, yet the process is still held in high esteem. The law retains an aura of the eternal and the sacred. It is no coincidence that judicial garb resembles that of a priest and that so much judicial authority is intimately tied to various rituals, e.g., "oyez, oyez," God save this Court, gavels, judicial robes, etc. These are the dignifying rituals of a sacrament, the earthly indication of a divine role. And, I do believe that the courts, the law, and the government ultimately are instituted to perform a divine function, the dispatch of justice. As St. Paul writes in Romans 13:1-5, "Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil." The divine purpose of political power is a responsibility its participants must acknowledge with fear and trembling. Its most eternal and God-like functionary is in the Judge, who renders final (earthly) judgment over the fates of individuals.

America, the land of individualism and Protestant values has taught so much to me and the world, not least the value and possibilities of the individual, whose dignity and freedom should be respected by political authorities. But America's strengths have, as with every strength, a concomitant weakness. The weakness of America has been the disrespect for authority and tradition occasioned by its deep-rooted individualism, born of its Protestant heritage. Protestantism, after all, finds its roots in protest. This disrespect has led at times to various extremes of reaction in the least democratic branch of government, where judges are often too willful or too obsequious, in turn. Is it not time that America can learn from that which it fled? Shouldn't its conservatives in particular acknowledge openly that every nation needs its class of priests, at once practical and theoretical, active and contemplative, independent and regimented?

* [By way of full disclosure, in my own spiritual journey, I have moved from Catholicism, to Fundamentalist-Evangelical Christianity, and then back to Catholicism, so I know of what I speak and mean only to be descriptive in the passage above. I also know that there are many species of Protestantism, some of which emphasize the role of tradition, especially the traditions of the early Church.]

Posted by at October 12, 2005 7:17 PM
Comments
Comment #85321

The most harmful aspect of FREC’s (Fundamentalist Right Evangelical Christians) in government is their perceived and unquestioned mandate to spread their brand of religion throughout the world, based on the premise that it is the duty and obligation of every Christian to save heathen souls from damnation should they not accept Jesus as their savior. Such folks in government CAN NOT observe both the Constitution’s mandate that gov’t shall not establish religion, and their perceived religious duty to convert all non-believers, using government if that happens to be their vocation.

Posted by: David R. Remer at October 12, 2005 7:51 PM
Comment #85325

Chris,

Unfortunately, in the end, as fundamentalists, she and Roberts will likely decide cases based more on their religious beliefs than in their constitutional knowledge or legal briefs. It is inevitable, no matter their testimony, and that is the ultimate problem with these choices.

As far as blaiming individualism as a lack of responsibility and the result of Protestentism… yikes! Sorry, don’t believe it. Don’t really think you know what you’re talking about on that topic.

Posted by: Dave at October 12, 2005 7:58 PM
Comment #85333

I am disappointed in you people. Don’t you know that GOD told Bush to nominate Miers? How dare you question GOD? Who are you going to believe, a bunch of Constitutionalists or the Followers of GOD?

and you call yourselves Republicans…

Posted by: Aldous at October 12, 2005 8:25 PM
Comment #85363

I have sevaral major objections to Chris Roach’s post.

The notion that you can draw conclusions about someone’s approach to reading secular law based on that indvidual’s approach to reading religious texts (and/or the relative amount of deference they give to recieved institutional traditions) is DEEPLY flawed.

Is a fundamentalist Christian more or less likely than anyone else to regard secular law as final and authorative? You could more persuasively say that they are LESS so, since they’d be more likely to measure secular law against what they believe is a higher authority.

In any case, Chris is taking a kind of “essentialist” view of how fundamentalist Christians read texts, suggesting that they have some trouble separating their reading of law or anything else from the way they read the Bible.
I suppose then, than a fundamentalist Christian would read Grimm’s Fairy Tales and believe that they are true stories?

If we base assumptions about one’s approach to poltical and legal questions on their religious beliefs, then can we also say that Catholics are more susceptible than most to abandon their own judgement in deference to what they’re dictated by authority figures?

Is Chris willing to follow his arguments to its logical conclusion and accuse Catholics of being especially prone to abandon personal conscience once they’ve been handed marching orders by those in power?

Frankly, I don’t see how one’s being secular, fundamentalist Christian, Catholic, Jewish, Buddhist, Hindu or anything else says anything about they read law.

I object strongly, though, to Chris’s suggestion that there’s something inherently superior about a Catholic’s ability to read Consitutional Law based on how they read the Bible and listen to the dicates of their Church.

To be snarky for a moment, I’ll conclude with this: if a Catholic judge is able to find things in the Consitution akin to their discovery in the Bible that it’s appropriate to pray to the Virgin Mary, then appointing Catholic judges should give us all pause.

Posted by: sanger at October 12, 2005 10:48 PM
Comment #85374

sanger:

You forgot to add “Fundamentalist” in all your religious words. The question is, does Mies think the world was created 5,000 years ago?

Posted by: Aldous at October 12, 2005 11:14 PM
Comment #85499

Aldous,

What does Miers’ beliefs about creation (I have no idea what they are) have to do with her interpretation of constitutional law? What would be the answer to your question directed at any of the nine SC judges currently sitting on the bench? My guess is that you probably have no idea.

Remer,

Your understanding of “FRECs” isn’t really true. You are applying the beliefs of a few to orthodox Christianity as a whole. In Evangelical Christianity in particular (which is the belief system of Miers’ church), it is believed that nobody can be forced (or “legislated”) into heaven (or the church, for that matter). It is important to share the “gospel,” but each individual must make his/her own decision.

Also, the simple fact that she is a Christian does not mean she is unable to interpret constitutional law correctly. If I understand history correctly, Jimmy Carter, Bill Clinton, and GW Bush all claim to be Christians. There are many Christians in congress. I have not seen any indication that any of them have tried to force Christianity onto the nation.

Posted by: G at October 13, 2005 5:46 AM
Comment #85585

I’m willing to be persuaded otherwise in the case of Miers, but we have so little to go on. I also meant it as much as a criticism of the arguments employed by her defenders than of her individually.

I think it’s likely Catholics do have certain views and tendencies in politics and in jurisprudence. Catholics are strongly influenced by the natural law tradition, which stretches back to Aquinas. Catholics also believe in objective truth and the importance of tradition and authority. That said, for most Catholic judges and lawyers you only have to look at their writings and opinions to see their approach.

With Miers we don’t have that option, so we’re left to use indirect evidence. Her assertoric and empty phrases on the Constitution suggest to me her approach is simplistic.

David Remer, I don’t agree about the mandate view of fundamentalists. Some have a notion that their authorty in a political or judicial role is highly limited by necessity. Not all, no doubt, but I wouldn’t necessary assume that about every fundamentalist or religious person in government.

Finally, Roberts is not a fundamentalist, and anyone who thinks so, such as “Dave” above, is disqualified from talking intelligently about his or anyone else’s religious views. I also think your mere assertion about what they’ll do withotu analysis or backup is meaningless and uninteresting.

Posted by: Roach at October 13, 2005 10:30 AM
Comment #85607
Within very narrow limits, fundamentalists believe that all reasonable people will agree about the text of the Constitution, just as they’ll all agree about the meaning of the Bible.

That’s an interesting observation, Roach. Considering the huge number of different Protestant Christian churches — all split over various doctrinal differences (Miers’ own church is a recent split from some other branch) — the assumption that the Bible (or the Constitution) will be interpreted the same by everyone is just wacky on the face of it.

Our Constitution is deliberately vague and purposefully malleable. That’s a combo guaranteed to drive “originalists” nuts.

Posted by: American Pundit at October 13, 2005 12:13 PM
Comment #85608

They can’t all contradict one another and be right. The seirous fundamentalists describe the other churches as lacking in good faith and being heretics who “twist and distort” the words of the Bible. I agree, though, that absent some kind of hierarchy and process to keep things in line, lots of individual interpretations will blossom, most of them by necessity wrong.

Posted by: Roach at October 13, 2005 12:16 PM
Comment #85611

As a devout christian for me religion is a very personal affair that should be held in the highest of respect. So what worries me isn’t so much about her not being to interpret law because she’s christian (if that were the case more than half of the judges in America would be “unfit”).

My concern is more about the Bush Administration using her religion to sell her as a viable canidate. Republicans like to bash Dems (and rightfully so from time to time) for playing the “race card”. Once the race card is played it becomes taboo to say anything against it. Well the Bush admin has found it’s race card, and it’s “evangelical christianity”. It’s as if they expect all the critics about her experience and what not to say, “OH! She’s an evangelical christian. Well then, why didn’t you say so?”
Being an evangelical christian no more qualifies her for the job than if she played classical piano. Since when did being christian become a carte blanche?

In the end I’m not so much concerned by her faith as her ability to do the job, and ensure justice for all americans, not just those that believe as she does. So far I’m not overly convinced either way. But I am disgusted at the Bush administration casting the pearls of faith before the swine to get its way.

Posted by: chantico at October 13, 2005 12:33 PM
Comment #85627

Correct me if I’m wrong, but isn’t it unconstitutional to subject officials to a religious test?

Posted by: Stephen Daugherty at October 13, 2005 1:52 PM
Comment #85636

Stephen,

You are correct, but I doubt that this incident qualifies as a religious test. The fact that Bush chose a Roman Catholic first leads me to doubt that he chose Miers BECAUSE she is an evangelical Christian.

Posted by: G at October 13, 2005 3:03 PM
Comment #85638
[a]bsent some kind of hierarchy and process to keep things in line, lots of individual interpretations will blossom, most of them by necessity wrong.

On the other hand, with a hierarchy and process in place to keep people in line, you can take just one wrong interpretation, make it compulsory and then punish dissent. Is there anything about having just one interpretation that makes it the correct one—or is it a tried and true way of everybody driving off the same cliff together?

A “Catholic” approach to reading the Constitution is more terrifying the more I think about.
When you consider how many tenents of the Catholic faith are not only not implied by even a very creative reading of the Bible, but which actually CONTRADICT the Bible, you have to worry about they would read the Constitution. The concepts of purgatory, Mary-worship, rote prayer, worship of icons, and the near deification of the pope (to name a tiny handful) sound a little too much like finding in the Contitution a “right to privacy” or a “right to have an abortion.”

If Catholics read the Consitution the way they read the Bible, can we can expect to learn that the 1st Amendment forbids free speech and that the 2nd Amendment forbids owning firearms?

Fortunately, there are many excellent Catholic judges—so I don’t want to sound like I’m bashing them in the way Roach is bashing fundamentalist Christians. But they are excellent insofar as they don’t approach the law in the same manner that they apporach their religion.

Posted by: sanger at October 13, 2005 3:06 PM
Comment #85658

I have no problem with Harriet Miers being an evangelical christian. There are many fine and competent people who are and who have contributed greatly to society. The problem I have with Ms. Miers religion is how far it is employed relative to the performance of her job. If for example,the current case being tried in Dover Pennsylvania regarding the teaching of Intelligent Design were to reach the supreme court, what would be her controlling level of authority with respect to her opinion on the case? I would hope that she would base her opinion on the legal aspects of the case and the relation to the precedent(s) that has come before. If she allows her opinion to be colored by her literalistic interpretation of scripture, then I have a problem. The following sentence was an example as I have no idea if Ms. Miers is a literalist or not. However, it is a question I would ask in a confirmation hearing. “Ms Miers: Do you believe that intelligent design or creationism are legitimate alternatives to the theory of evolution? Do you believe that God created the world and all of it’s contents in 6 days?” If the answer to either of those questions are yes, then my vote on her confirmation would be no.

Posted by: Dennis at October 13, 2005 4:58 PM
Comment #85661

Chris,

You present an interesting theory and I think many commentators and you may have overlooked a couple of things. While Miers may apply the same “good faith reading of the words” process to both her understanding of religious and secular texts, I would imagine that the reason is not because of her faith, but rather because of her professional training.

Attorneys are taught that each word means something in any document and if you want to know what a word means, the best place to start is with its plain meaning. I doubt seriously that Miers sprang from the womb with such a rigorous bent to textual interpretation. Likewise, if I am remembering media reports correctly, her conversion to evangelical Christianity came later in life, presumably after law school and the mental rigor imposed therein.

Second, I tend to believe that those who have achieved the rarified status that Miers has achieved through hard work come with a certain gift of compartmentalization. Attorneys in particular are often called to place client needs above personal feelings. Why then would an attorney, clearly successful by any measure, suddenly become incapable of separating her personal matters and professional matters?

Of course, opponents will say that on social issues, her faith informs her secular thinking too much. For example, there will be questions about whether her evangelical nature has led her to believe that abortion is murder and thus should be outlawed. While that may be true about her personal beliefs, one need not be an evangelical Christian to hold such a view, indeed one need not even be Christian at all to hold such a view.

Next, to David Remer: Why is it that people cannot seem to understand that it is possible to work for the government and be evangelical at the same time. Your wrote:

Such folks in government CAN NOT observe both the Constitution’s mandate that gov’t shall not establish religion, and their perceived religious duty to convert all non-believers, using government if that happens to be their vocation.

Why not. This is nothing but a stereotype about those with an evangelical faith. By the way, this was the exact same stereotype applied to Catholics even as late as 1960. Many people feared that if the United States elected a Roman Catholic president, the United States would become beholden to the Vatican for everything. John F. Kennedy was elected nonetheless and all the fears about Vatican control failed to materialize. Why should such things happen with evangelicals at the helm. This is just fear and misunderstanding run wild.


Finally, I think President Bush’s reference to Miers’ faith had more to do with his need to justifiy to the Christian right his choice than to say that he nominated her because she is evangelical. The two are very different in nature and everyone who has commented here seems to forget the very basic political nature of the President’s statement.

Posted by: Matt Johnston at October 13, 2005 5:06 PM
Comment #85665

I am of the opinion that it is “fundamentally” incorrect to draw the conclusion that ALL Fundamental Evangelical Christians, Evangelical Christians, Christians (Protestant and Catholic) in government are incapable of separating their religious beliefs from their work activities.

I know Bush communicates with GOD but so do I.

Posted by: steve smith at October 13, 2005 5:12 PM
Comment #85690

I keep thinking of “Occam’s Razor” regarding Mier’s appointment. The most likely explanation for her appointment is that she is a very close and loyal friend of Bush’s that he wants to see succeed and for him to have a “friend” in a high place of authority. I believe GWB values loyalty over all other attributes and he’s acting on that value.

Posted by: Dennis at October 13, 2005 6:22 PM
Comment #85699

The fundamentalist viewpoint has a deep conflict with the notion of authority, that some types of decisions should be reserved to properly trained and appointed experts.

That’s because the only authourity in religious matters IS GOD! NOT MAN! No man has the right to tell me what to believe and what not to believe.


David
Such folks in government CAN NOT observe both the Constitution’s mandate that gov’t shall not establish religion, and their perceived religious duty to convert all non-believers, using government if that happens to be their vocation.

Dave
Unfortunately, in the end, as fundamentalists, she and Roberts will likely decide cases based more on their religious beliefs than in their constitutional knowledge or legal briefs. It is inevitable, no matter their testimony, and that is the ultimate problem with these choices.

Do youall know this for fact? It’s the same as saying an atheist cann’t or won’t seperate their views from what the Constitution says.


G
Also, the simple fact that she is a Christian does not mean she is unable to interpret constitutional law correctly. If I understand history correctly, Jimmy Carter, Bill Clinton, and GW Bush all claim to be Christians. There are many Christians in congress. I have not seen any indication that any of them have tried to force Christianity onto the nation.

And NO true Chistian will try to force Christianity on the nation, the world or any person.


Dennis
However, it is a question I would ask in a confirmation hearing. “Ms Miers: Do you believe that intelligent design or creationism are legitimate alternatives to the theory of evolution? Do you believe that God created the world and all of it’s contents in 6 days?” If the answer to either of those questions are yes, then my vote on her confirmation would be no.

So, if someone isn’t an evalutionist their not qualified to sit on the Supreme Court? Isn’t that trying to push your beliefs off on everyone? The very samething you accuse Christians of trying to do?
How can we besure that an evalutionist won’t let their beliefs influence their decisions?


Posted by: Ron Brown at October 13, 2005 7:36 PM
Comment #85712

Ron, even Jesus said one cannot serve two masters. Especially when they have diametrically opposed agendas.

Posted by: David R. Remer at October 13, 2005 8:21 PM
Comment #85722

Ron,
“So, if someone isn’t an evalutionist their not qualified to sit on the Supreme Court? Isn’t that trying to push your beliefs off on everyone? The very samething you accuse Christians of trying to do?

How can we besure that an evalutionist won’t let their beliefs influence their decisions?”

——————————

Ron, well, in matters of cases dealing with evolution, since it is based on scientific study and not based on faith, then yes, I would expect an judge would be influenced by the facts of evolution.

Ron, I never accused Christians of forcing their beliefs on others. You misread me. I am saying that I believe a literalist would have a difficult time objectively judging a case on evolution versus creationism or ID because of their beliefs. I belief judicial decisions should be based on review of facts. Creationism and Intelligent Design are not facts. They are beliefs. They can not be tested and rely on the presumption of the existence of a creator or designer. Evolution as a course of science has been found to be factual. Even creationist and ID’ers have acknowleged evolutionary changes in species.

Posted by: Dennis at October 13, 2005 10:05 PM
Comment #85728

I don’t think that someobody who has been President of the United States for 5 years worries much about having friends in high places—I actually think it’s a lot simpler than that.

Bush is very good friends with her, he believes that she agrees with him on the things he cares about, so as a consequence he thinks she’s a safe bet for the court.

The problem I have with it is not the cronyism aspect of it (since cronyism is simply a political fact of life and always has been), or even that she’s unqualified intellectually (which I’d need to see her performance in hearings to judge), but the fundamental problem with Bush’s rationale.

I just don’t believe that Bush knows Miers as well as he thinks he does, and that’s because as long as they’ve known each other he has been to her an important and powerful client. When they met, he was the son of the President and the owner of a professional baseball team. If you’re an attorney, would you NOT tend to say whatever was necessary to get and keep such a person as a client?

On abortion, the subjet everybody’s way too obsessed with in regards to the courts, I have no doubt that she’ll be the most pro-life figure to ever sit on the bench. The rest of her life story confirms it. But there’s so many other issues that matter which I just don’t think Bush or ANYBODY is in a postion to really know her views on.

Posted by: sanger at October 13, 2005 10:34 PM
Comment #85770

Dennis:

Ron, I never accused Christians of forcing their beliefs on others. You misread me. I am saying that I believe a literalist would have a difficult time objectively judging a case on evolution versus creationism or ID because of their beliefs. I belief judicial decisions should be based on review of facts. Creationism and Intelligent Design are not facts. They are beliefs. They can not be tested and rely on the presumption of the existence of a creator or designer. Evolution as a course of science has been found to be factual. Even creationist and ID’ers have acknowleged evolutionary changes in species.

Not turning the face of this debate to Creationism vs Evolution, but there are few solid “facts” backing evolution. As a matter of FACT all of the bones that support evolution can be fitted in one 5 gallon bucket. Evolution is a theory that is yet unproven using sound scientific methods and people of science that approach the subject with a closed mind are no more intrested in reporting the truth than Gunga-Dan Rathers. I submit to you sir that there are enough gaping holes in evolution that it not be just accepted as “fact” no matter what belief system you chose to adhere to.

Posted by: submarinesforever at October 14, 2005 5:49 AM
Comment #85777

David,

By your argument against the ability to serve two masters, you are eliminating any person of faith from any office. There is a difference between “serving” the law and “submitting” to it. Just as Mr. Roberts (I believe) said before his hearings, if anything in a justice’s religious beliefs (or any other aspects of his/her life) hinder him/her from deciding a matter impartially, then he/she simply volunteers to be recused from that case. That is the case for ANY judge. The only way to give a 100% guarantee that these conflicts will never arise would be to have absolutely no strong beliefs or opinions to begin with, which would be ridiculous.

For those who believe that she should be asked about her beliefs on creationism, wouldn’t that violate the prohibition of a religious test? Remember, that prohibition is not only against tests that affirm religious beliefs, but also against tests that require a denial of religious belief. If one believes that young-earth, biblical creationism is a religious belief, then we cannot justify using her beliefs in that instance (whatever they might be) to EITHER accept or reject her for this position.

In any case, I assume that if she were asked, she would simply refuse to answer based on the belief that the court will almost certainly hear a case before too long that will address those issues.

Posted by: G at October 14, 2005 7:02 AM
Comment #85797

Chris et al,

Forgive my comments if they are redundant. I haven’t the time here at work (or home with family) to read all the posts above. As someone who is identified as “fundamentalist”—usually by others who object to my literal beliefs, such as Jesus being who he said he was, etc—I disagree with Chris’s initial post on several points. Although I am something of a fan of catholicism, I am not a proponent of the notion of the Magisterium. But I believe I am in good company, for Jesus himself harshly admonishes the pharisees for adding to scripture with superfluous traditions. I do not, however, believe that for christians to be saved in Christ that they need be *right* about the details of doctrine. I hold my catholic brethern in high regard for their reverence for God and their committment to good works as a sign of their faith. By the same token I forgive my protestant family, extended and local, for being legalistic and even myopic in their spiritual vision. Spiritual humility is not the long suit of the fundamentalist christian. My experience has been that the power of example, that is the power of the Holy Spirit living and working within us is the greatest evangelical tool.

In the final analysis, the originalists’objection to liberal legal interpretation are pretty much the same with the constitution and the bible. Roe v Wade is not objected to by the constitutional originalist because it is immoral—their religious views notwithstanding—no, the originalist looks at Blackmum’s opinion of R v W and objects to the addition of principles not found within the constitution. RvW may be rightly judged to be immoral on religious grounds but really what it is is lousy jurisprudence. It has indeed created a precedent.

It is ironic that Chris finds ground to accept the extraneous catholic principles when meanwhile extraneous constitutional principles are invented which serve only to our society on a ever darker moral footing. Chris, with respect to the bible and to the constitution, I would address myself to the black part of the page when searching for principles to guide my beliefs. I think you will find that the founders, like the prophets and apostlic writers, covered their subjects pretty thoroughly and dset down the principles necessary to judge the affairs of mankind. I wish I had more time to address the principles that I feel you’ve overlooked.

Thanks,
John

Posted by: John at October 14, 2005 11:13 AM
Comment #85833

If somebody were to directly ask somebody’s religious belief on the subject of evolution, that would be one thing. One could, however, discuss case law concerning evolution, as long as you were just speaking about their attitudes towards their legal reasoning.

A president shouldn’t, however, require that a person be a member in good standing of a preferred religion, or any religion for that matter. It should be immaterial.

Posted by: Stephen Daugherty at October 14, 2005 3:39 PM
Comment #85873

Well, Stephen, using your reasoning, Harriet Mier’s religion should be immaterial to *you* as well. Somehow I sense it is not.

Posted by: John at October 14, 2005 8:18 PM
Comment #85874

In response to David Remer’s post where David writes—referring to christians: “Such folks in government CAN NOT observe both the Constitution’s mandate that gov’t shall not establish religion”

The problem with your criticism, David, is that the 1st amendment addresses the role of congress (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) not “the gov’t”. The free exercise of religion is guaranteed by the constitution and as well that congress shall stay out of it. The notion that the free exercise of religion and congress being prohibited from making laws about such could be construed to mean that religious persons should be constrained by law from promoting, arguing for, writing books about and otherwise publicly embracing their religious views is patently absurd. Your criticism while hoping to demonstrate how dear you hold our consititutional rights in fact would seek to nullify them. But this is the unintentional intent of the left wingers in general.

The free citizens of the U.S. may elect the most religious persons in the country to government if they so choose. Those persons may make the case for their religion to whomever may listen. The 1st amendement does not prohibit any such activity.

Posted by: John at October 14, 2005 8:37 PM
Comment #85875

Aldous wrote: “I am disappointed in you people. Don’t you know that GOD told Bush to nominate Miers? How dare you question GOD? Who are you going to believe, a bunch of Constitutionalists or the Followers of GOD? ..and you call yourselves Republicans…”

Aldous, your post verily did drip with sarcasm. You know “sarcasm” that approach to arguing that liberals and leftists mistake for reason.

Posted by: John at October 14, 2005 8:41 PM
Comment #85877

American Pundit wrote: “Our Constitution is deliberately vague and purposefully malleable. That’s a combo guaranteed to drive “originalists” nuts.”

In what way is the constitution vague and malleable? What is vague about the sentence, for instance,”Congress shall make no law respecting the establishment of religion or the free exercise thereof.”? What are the ways in which we can read that sentence? In what way is it malleable? And, just for fun, where do you find in the constitution a blanket guarantee to a right of privacy? Which language in the consitution did Blackmum use to justify such?

Posted by: John at October 14, 2005 8:49 PM
Comment #85892
Congress shall make no law respecting the establishment of religion or the free exercise thereof.

Hmm… John, didn’t the Congress establish a law forbidding polygamy, even though it conflicted with the tenets of the Mormon church? Animal sacrifice as part of Santeria is against the law. At what point do zoning laws encroach on the animism of some Native American religions? Congress makes quite a few laws respecting religion because there’s a lot of gray in there.

And by malleable, I mean the Constitution can be amended and altered — as it has been many times since it was ratified.

Posted by: American Pundit at October 15, 2005 12:18 AM
Comment #85893

And BTW, what do Republicans have against privacy? You’d think a party calling itself conservative would be all about privacy, but they’re always sticking teir noses into everybody’s business. Crazy.

John, if the right to privacy can’t be construed from the Constitution, it should be added.

Posted by: American Pundit at October 15, 2005 12:21 AM
Comment #85930

AP, thanks for filling in some blanks. Indeed the constitution was written as the baseline for our government. There’s nothing in it that mandates slavery or the subordination of women in a family, etc. It was assumed that congress and the state congresses would make laws but that such laws would be justified within the parameters set by the consitution. The problem with many of the liberal or “progressive” court rulings of the past 40 or so years is that they effectively have taken the people’s right to govern themselves (though their elected representatives) and made it virtually null by inventing concepts like the “right to privacy” which was then used to rationalize making liberal philosophical dispositions into the law of the land instead of following the mandate of the consititution. In that process the consititution is trod underfoot. A “right to privacy” is not found in the constitution and for good reason. It is altogether far too open ended and vague. Almost anything can be protected under something called “the right of privacy” including some of the unappetizing things you enumerated in your post. So, the liberals as well as the conservatives should be alarmed by the power the court has assumed. When Blackmum essentially wrote his personal philosophy into law with the Roe opinion we have been saddled with this amorphous and illdefined concept. We also have to live with the nullifying of the states’ right to allow the people to determine their own moral course. It is not the Supreme Court’s right to determine moral and ethical issues for the people. It is the Court’s position to necessarily relegate their view to the federal issues as pertain to what the consitituion says not what they prefer it should say. No matter what your philosophical disposition on these issues, the people have the right to be wrong. If you read up a little on Jefferson you will find that this type of progressive jurisprudence was precisely the thing he feared. The Supreme Court in it’s opinion on Roe addressed no constitutional issue but made a moral determination for every state. Prior to Roe the right to abortion was not illegal in all states. Post Roe it becomes necessary that all states must accept abortion as a “consititutional right”. This is the type of fanciful and, frankly, tyrannical thinking that A, Jefferson feared and B, conservatives/originalists oppose.

Posted by: John at October 15, 2005 11:21 AM
Comment #86291

After reading this thread I’m incredibly relieved, grateful and proud that I am a “Godless” European. No feelings of moral superiority here, just plain old relief. Thank God for that!

Posted by: German at October 18, 2005 9:14 AM
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