By now, it's clear the Senate will not be able to extract any meaningful information about Harriett Miers's views on the Constitution. Rather than asking her what she thinks about the issues of the day (and getting stonewalled), it's time Democratic senators take the initiative and
tell Miers what to think.
They can do that by proposing an exchange for granting her passage. In exchange for not filibustering Miers and future Bush nominees Senate Democrats should insist that Congress pass and send to the states for ratification as set of Constitutional amendments that make our fundamental rights explicit.
We have depended too long on the Supreme Court to interpret the Constitution in favor of these rights. We were lucky to have a sequence of relatively sensible justices. Since the Republicans insist on putting "non-activists" on the Court it's critical that the right to privacy and other key rights be made explicit in the text itself.
Conservatives are up in arms over Miers because they understand that the whole purpose of constructing this moment--with a pliant conservative in the White House and neocons dominating the Senate when key positions in the Supreme Court would come up for appointment--was to forever seal the neoconservative philosophy as the controlling power in the land. They have been looking eagerly forward to this fight for decades. They want to force through an archconservative on the Court to rub in the defeat of liberalism that they see as their lifelong goal. They are hopping mad because
Bush cheated them out of their fight.
But we have just as much interest in this fight. We have depended for three-quarters of a century on liberal court rulings to enable the federal government to go forward with progressive policies and to enable those in society long oppressed by traditional biases to free themselves. We have to fight this fight on ideological grounds. Even a tactical victory will not win the war. It will only delay our inevitable defeat, because we will not have stood up for our principles.
The debate over Miers provides an ideal opportunity to fight for our values in a very public and effective way. We need to react to the Miers appointment with a demand, a demand that Congress write those fundamental rights under attack by conservatives into the Constitution itself! This will put the public on notice exactly what rights they are throwing away. This would not only nullify the conservative appointments, but energize the progressive base for the next elections and show the concrete values that Democrats have been struggling so hard to get in front of the voters. What exactly do Democrats stand for? This is an ideal opportunity to educate the public on exactly that issue.
Take the rights of privacy. These are key beliefs underpinning the right to abortion on demand and many other freedoms. We tolerate abortion because we believe in a specific right of privacy, the right of a woman to control her own body. We need to put the rights of privacy into the Constitution in so many words to secure key human rights.
At the appropriate point, Senate leaders should respond to the Miers nomination by saying something like:
We can't get Miers to talk about her beliefs about the right to privacy. The White House won't release documents from her work that would tell us where she really stands on this. She insists, as has Roberts, that she will stick to what the Constitution says and not try to "make law from the bench." Since we can't depend on our judges to stand up for the inherent and obvious rights of individuals, such as the right to privacy, we have to put the words into the Constitution to protect ourselves from just such people.
This is not a simple job. One of the reasons we ask judges to use discretion is that wording a right in such a way as to protect it while not endangering other freedoms or our safety is a difficult task. Consider: What are the essential elements of the right to privacy? Here are some:
- Freedom of thought, feeling, and belief.
- Freedom of expression in its various modes (spoken, written) and capacities (creating, viewing, interpreting).
- Freedom to keep others (and their objects) away--or nearby.
- Freedom to control one's own body, including the right to inject, ingest or inhale what we want--or to not do so if we don't want (specifically, to not have our environment polluted).
- Freedom to acquire what we want.
- The right to chose without undue interference the time and conditions of our dying.
Of course, no right exists in isolation. Every right, including the right to privacy is limited, most specifically by the rights of others. For example, the freedom to acquire doesn't include the freedom to acquire a nuclear bomb, which constitutes an unreasonable threat to others.
How would you word the rights of privacy into the Constitution? It might get rather wordy. We would normally expect all of these nuances to be written into the statutes and not into the Constitution itself. But, unfortunately, we can no longer count on the Court to understand at an intuitive, or even at a historical level, inherent human rights and to interpret the law accordingly.
So, we are going to have to get much more specific about the language of the Constitution. Does human life begin at conception or birth?That's going to have to be in there. Is it constitutional to require public school pupils to pledge themselves to a nation "under God"? If swearing by God is a religious exercise, we'd better figure it out and decide if we want our government requiring that. Do you need a search warrant before you search someone getting on a plane? If we think this is a reasonable thing to do, we'd better get that written down. (Oh, wait, that's already in there. Scratch that.) Is it okay for a human to assist another in taking their own life? Up or down, yes or no, we have to write it in.
I don't see any reason why I should trust any conservatives on the Court unless the rules are so closely written that they have no discretion on how to interpret them. We don't know where Miers stands on key issues and the President has said, in essence, that we will never find out. He will claim executive privilege before releasing any of the paperwork on her. Of course, this is a good reason to disqualify those with extensive work in the White House from serving on the Supreme Court. If you live your life in secret you are automatically disqualified from the Court for the obvious reason that no one can properly evaluate your qualifications.
But even with Chief Justice Roberts we should now be wary. At least he seemed to agree that the Constitution guaranteed a right to privacy, although he didn't to my knowledge see this as an inherent right of the people and only seemed to acknowledge it in the context of very narrow clauses in the text. Will he respect the right of a woman to control her body if she's pregnant? Will he respect the rights of children to the privacy to make key decisions about their health on their own without the interference of others? Would he respect freedom of thought to the extent of striking down the requirement to say a pledge of allegiance if someone doesn't believe in making that pledge?
The only way I can see that he would do that is if we wrote all the specific personal rights into the Constitution. So, it's time to get started. We were negligent to delay this long.
Liberals should take on this fight. Our values are essential to freedom. Put your values up against those you see displayed by prominent conservatives. How do they compare? Are you currently under indictment? It seems to me that Democrats win on the values argument, if we chose to make it. But we have not taken every opportunity to get the word out. The Miers nomination is a huge opportunity to do that. We must act!