Harriet Miers, constitutional chameleon?

In the shadow of Bush v. Gore, Miers led a legal team advancing a not-so-conservative view of the U.S. Constitution.

Published October 7, 2005 12:39PM (EDT)

OK, so we take it all back. It turns out that Harriet Miers does have experience in matters of constitutional law: As the Wall Street Journal reports today, she has argued a case involving the rather obscure 12th Amendment to the U.S. Constitution.

Her client: George W. Bush. Her argument: Dick Cheney wasn't really a resident of the state of Texas even if he was really a resident of the state of Texas.

As the Journal says, the 2000 case of Jones v. Bush was mostly lost amid the clamor over a case called Bush v. Gore. But the Jones case could have been just as important for the man who would be president, and Miers was there to help him out.

The 12th Amendment prohibits the Electoral College votes of any one state from going to both a presidential candidate and a vice presidential candidate who come from that state. In the days after the 2000 presidential election, some Texas residents filed a lawsuit in federal court arguing that Texas couldn't cast its Electoral College votes for the Bush-Cheney ticket because both Bush and Cheney were Texas residents. Bush didn't dispute his Texas-ness, but Cheney did -- despite the fact that he had lived and voted and held a driver's license in Texas until just after Bush picked him as his running mate in July 2000.

Miers led the legal team that successfully fought off the lawsuit. There's nothing surprising about that: While Miers doesn't have a national reputation as a litigator on constitutional law issues, she was Bush's personal attorney and apparently well respected in Texas. What is unusual, the Journal notes, is the argument that Miers' legal team made. While conservatives like to say they believe in reading the Constitution strictly, the Miers team had to rely on what it called a "broad and inclusive" reading of the Constitution to ensure that Bush made it to the White House. Miers' co-counsel argued that, whatever the 12th Amendment might have meant when it was adopted in 1804, the provision's meaning had evolved over time. "Differences between the year 1800 and 2000 is more than two centuries, it's light-years," her co-counsel argued, noting the "rapidity with which each of us [has] changed addresses from schools and college to various marriages and jobs."

In any other situation, that sort of argument would elicit groans of protest from Antonin Scalia, who counters talk of a "living Constitution" by insisting that the document is very much dead. But 2000 wasn't like any other situation, and the legal wrangling over the disputed 2000 election wasn't like anything else. At least that's what Republicans on the Supreme Court told us when they suddenly found themselves interested in an expansive reading of the Equal Protection Clause -- and then just as suddenly warned that the decision they were handing down in Bush v. Gore shouldn't be considered precedent for any other case.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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