Judicial Review?

I have more respect for John McCain as a candidate than I have had for a major Republican candidate in pretty much living memory. He has risked political capital for principle on a number of occasions, most notably in his support for campaign finance reform, and that’s not easy to do in politics for as long as he has been it. I still disagree with most of his positions, but I respect him.

That’s why I felt such a chill down my spine during his remarks yesterday when he became the presumptive Republican nominee for president when he spoke of his enthusiasm for judges who “take as their sole responsibility the enforcement of laws made by the people’s elected representatives.”

I know a lot of conservatives are royally pissed off about Roe vs. Wade, and would do almost anything in the world to get it overturned. More than anything, Mr. McCain’s comments were probably directed in reference to that and was a reminder to conservatives of his solidly pro-life/anti-choice record.

Still, though, really think about that statement. Judges’ jobs would only be to enforce the law. Minor civics lesson, the three branches of government are supposed to act as checks and balances on each other, so that no one branch can act tyrannically. If the legislature were to pass laws that were unconstitutional then it was the job of the judicial branch to nullify those laws in the interest of liberty.

British history has provided an example of what happened when an elected body of officials obtained too much power without any check in the form of the English Interregnum, when the religious right in Parliament hijacked the system, made itself into a dictatorial body, executed the king, and imposed its own religious views onto the country.

However, how the judicial branch was best supposed to act as a check to the unfettered power of the legislature has been up for continual debate, especially in recent years, partially as a result of Roe vs. Wade.

There’s the strict constructionist viewpoint that argues that judges must work with the text of the laws and constitution. In interpreting laws, judges should not draw inferences based on what they believe the law might mean. In Roe vs. Wade, the constitution doesn’t say that individuals have the inalienable right to abortions, therefore the move to strike down state laws outlawing abortions as unconstitutional could itself be viewed as unconstitutional.

There’s the idea of Originalism, which argues that we should examine law and the constitution for what the ratifiers intended at that time for purposes of interpretation. This is also popular among conservatives, since the framers of the constitution had a considerably different world view over two hundred years ago. However, since there are a variety of issues which the Founding Fathers could not have possibly foreseen (internet, weapons development, medical advancements) this still leaves judges to try to work with making existing law and precedents work in a modern setting.

A common accusation is of “judicial activism,” which is that judges take on legislative duties themselves, preempting the legislative branch. The problem is this term is as hotly debated, and has seems to be misused almost as much as “recession,” and when you see it in the media it seems typically to mean that an activist judge is one who has made an interpretation that the speaker disagrees with. I find it difficult to believe that liberal judges who interpret the constitution differently from conservatives, and make rulings accordingly, are all corrupt officials seeking to illegally press their views on the country.

McCain’s statement indicates that he wants to select judges who will be free of personal bias and arrive at legal decisions based in precedent without their personal beliefs coloring their interpretation of law. I may not be a lawyer, but it seems to me that statement is a load of hooey. The practice and interpretation of law can be a highly personalized affair, with difference in philosophies and politics playing a major part.

It’s not like the only difference between liberal and conservative is what party box you check on your voter registration. This can be a world view for a lot of people, coloring how you interact with it on many levels. It’s not like there’s only one way, or even one right way, to interpret the idea of American law just like there isn’t only one way to interpret Shakespeare or the Bible. When McCain says judges’ sole responsibility is to enforce law, it means that they won’t have the pesky problem of interpretation, since the process of interpretation will be done. It doesn’t mean that the judges will be free of personal bias, it just means that their flavor of personal bias will match his own, and that of other conservatives.

-posted by matthewsayre

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3 Responses to Judicial Review?

  1. Mike says:

    Matt, have you been reading any of this stuff about Myth of a Maverick, the new McCain book? I listened to a terrific talk about it here the other day, but I’m looking forward to some more aggressive criticism, too. It was the first time I’d ever heard a plausible summary of McCain’s operating philosophy. Basically, the guy’s argument is that McCain thinks all our weaknesses can be resolved through participation in the transcendent power of government.

    It’s a critique by a left-leaning libertarian, painting McCain as the least libertarian candidate imaginable. If it’s right, it makes McCain’s statement on originalism especially odd, since we can probably all agree that the 1789 constitution was a lot more minimalist than today’s.

    Odd, that is, if McCain was telling the truth the other day. One of the author’s other arguments is that McCain has a self-destructive need to admit to all his sins — which, McCain has written, often include lying about things in order to get elected.

  2. matthewsayre says:

    Wow, that was a long clip. Had to watch it in 5-10 minute increments with a toddler. I took a few things away from it, though. First was his absolute devotion to the nation, bordering on the religion of Patriotism, which was consistent with him being even more hawkish than Bush, committed to campaign finance, and being perfectly willing to sacrifice civil rights in the interest of a more perfect nation. The second was his successful strategy with the media of full access, no handlers, all the documentation you could ask for, and staying and answering questions until journalists ran out of questions. That’s given him an enormous pool of goodwill from the media which many politicians rarely enjoy. The third was what they presented as a paradox, which was McCain, despite being the single most hawkish candidate on the ballot, has enjoyed the most independent support from those who are opposed to the war. That’s a testament to a couple things, maybe interrelated, both McCain’s personal charisma, and his genuine visionary nature. It may be a scary scary vision of sacrificed personal freedoms in ‘return’ for America as a police state for the entire planet and a culture that has as solid a faith in its national government as McCain has, but it’s a fervently held vision nonetheless.

  3. matthewsayre says:

    Ack, so many thoughts, so many distracting babies. I don’t see his comments about judges as inconsistent with his vision of superior federal power, just the opposite. He said that judges should make their sole responsibility the enforcement of the laws passed by the legislature. They shouldn’t get in the way of the federal government fixing things with pesky things like the Constitution (that implication is what had me so skeeved out about the original quote). One of the things claimed in that interview was that if he had the choice between Free Speech and a clean government, he’d pick the government.

    Something else I didn’t quite have time to point out was the interview was done by the Cato Institute, famous for its Libertarian policy positions. I won’t go in to a discussion of American Libertarianism and its theoretical ramifications right now, except to point out that as McCain is all in favor of the federal government as a primary fixing agent, he would come off as the antichrist to them, which explains some of the rather biased rhetoric on both sides of the interview.

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