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 proceed.
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 hell 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 exhange 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 beived 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:
-
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 judical, 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.
[1] Press Briefing by Scott McClellan - James S. Brady Press Briefing Room
Whitehouse Website @ Press Briefing by Scott McClellan
[2] Same as above
[3] Same
[4] Same
[5] Same
[6] Same
[7] Wikipedia @ Strict constructionist
[8] Same as directly above
[9] A Matter of Interpretation by Justice Scalia
[10] Same as directly above
[11] Coinage Act, 1792 (The Mint Act) Section 9
[12] Architect of the Capitol and the Office of the Curato r from contemporary accounts and other sources in the files of the Architect of the Capitol.
[13] Sec. 453. Oaths of justices and judges
United State Code · TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE · PART I ... HISTORICAL AND REVISION NOTES
Based on title 28, USC, 1940 ed., Sec....
