Miers's religious views

Wed Oct 5 11:17:30 PDT 2005

Doesn't the claim of constitutional silence overlook the  9th and 10th
amendments?  Which shape full understanding of the 14th?

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Neil B. Cohen
Sent: Wednesday, October 05, 2005 11:05 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Miers's religious views

Rick Duncan stated (accurately) that "The Constitution said nothing about
abortion when I was an agnostic, and it still says nothing about abortion."
With due respect to Rick, however, no one on the list has claimed (or could
claim) that the word "abortion" is in the text of the Constitution.  The
question, rather, is what the words that are in the Constitution mandate in
the context of state restrictions on abortion.  If textual silence is both
the beginning and end of constitutional analysis, then almost every Supreme
Court decision striking down any law is wrong.  Few, if any, of those cases,
can point to explicit text in the Constitution mandating their result.  (The
Eleventh Amendment, just to cite one example, says nothing about the various
things that the current court has done with it in recent years.)  This is,
of course, a function of the fact that (i) many of the Constitution's
commands are in grand but vague language, and (ii) easy cases rarely make
their way to the Court.  The result today (and in most eras) is a court
whose members extrapolate differently from the constitutional text when
there is silence about the precise issue at hand - not only differently from
each other, but differently from the way they extrapolate in cases raising
other issues.

Getting back to the main point, if a nominee's religious views lead her to
fill in Constitutional silences differently when her religious views point
to a particular answer than when her religion is agnostic (so to speak) on
an issue, it seems to me that this is part of her judicial philosophy that
can legitimately be explored.  It is not a question of religion; rather, it
is a question of how the nominee deals with cases as to which the text of
the Constitution carries us only so far.

Neil Cohen

________________________________________

Neil B. Cohen

Jeffrey D. Forchelli Professor of Law

Brooklyn Law School

250 Joralemon Street

Brooklyn, New York 11201

Telephone:  (718) 780-7940  Fax:  (718) 780-0375

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Wednesday, October 05, 2005 10:47 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Miers's religious views

My religious views are irrelevant to whether the Constitution contains a
right to abortion. It does not. If it did--if the 14th Amendment said "No
state shall enact any law restricting a woman's right to have an
abortion"--as a judge I would have to protect that right (or recuse myself
if I could not do so in good conscience).

But since the Constitution does not contain a right to abortion, my
religious views are irrelevant to my faithfully interpreting the
Constitution and its silence on abortion.

I can not speak to Miers' views about abortion, but I could truthfully
testify under oath that my religious faith is irrelevant to my legal views
about the abortion liberty and Roe. Indeed, my own views about the wrongness
of Roe go back to my pre-Christian life as a secular law professor who was
an agnostic only because God was too irrelevant to me to bother to become a
committed atheist. Just as Nat Hentoff is a pro-life atheist, I was once a
pro-life agnostic/secularist. Becoming a Christian changed my life in many
ways, but it did not alter my views about the Constitution. The Constitution
said nothing about abortion when I was an agnostic, and it still says
nothing about abortion.

Rick Duncan 

RJLipkin at aol.com wrote:

       Is Rick's recommendation that she "answer that her religious views
are irrelevant to her work as a judge" strategic or that she should give
this answer because she really believes it since, in Rick's view, it is
true? If the latter can Christian conservatives opposed to abortion take any
solace in her appointment?  Wouldn't they then need to hope she has secular
reasons for opposing abortion?

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or
Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
numbered." --The Prisoner

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