One of the things Miers' fans have hastened to assure the conservative base is that she is a "originalist" when it comes to the Constitution. But is she???
Crossposted at ePluribus Media.
One of the things Miers' fans have hastened to assure the conservative base is that she is a "originalist" when it comes to the Constitution. The originalist philosophy is at odds with the "living document" view of the Constitution, as summarized by uber-originalist
Antonin Scalia:
The Constitution is an enduring document but not a "living" one, and its meaning must be protected and not repeatedly altered to suit the whims of society, U.S. Supreme Court Justice Antonin Scalia said in Milwaukee on Tuesday.
Scalia, often reviled as an arch-conservative who would do the nation harm, admitted to a respectful crowd of more than 1,000 people at Marquette University that his "originalist" judicial philosophy is not popular.
In contrast, the idea of a "living Constitution" in which the meaning can be interpreted as society changes is "seductive," he said.
But Scalia also insisted that only his approach - interpreting the Constitution based on the Framers' precise words and the meaning they intended at the time - can preserve the Constitution's guiding principles.
"The Constitution is not an organism," the justice said, "it is a legal document."
Conservative Texas judge Nathan Hecht, Miers' occaisonal date, linked Miers to this philosophy when he told blogger Marvin Olasky that "She's an originalist - that's the way she takes the Bible and that's her approach to the Constitution as well."
Apparently that wasn't her approach to the documents she worked with during her tenure on the Texas Lottery Commission. The November 29, 2000 minutes contain a discussion about the Lottery's Personnel Policy Manual. Changes needed to be made and the discussion turned to the Commission's ability to make those changes.
Diane Morris, the Assistant General Counsel for the Commission, had this to say:
"I'm going to quote from Chairman -- or Chair Miers at the time when we were talking about adopting chapters one, six, and eight. And she said: I assume these are living documents and that they are under scrutiny on an ongoing basis. Certainly instances occur that cause us to recognize the, oh, my, it would be better if this was the way we treated these kinds of things. So we live and learn, as we always do. So we hope these will be considered as living documents and we just don't forget that. That is from October 7th of 1997."
Frankly, I'd feel a lot better about Miers if she took the "oh, my, it would be better if this was the way we treated these kinds of things" approach to the Constitution as well.