Strengthening Constitutional Self-Government

No Left Turns

McCain’s judicial philosophy

John McCain is set to speak about his approach to the Constitution. The journalists will focus on the hot button issues that appeal to what the AP reporter is happy to call the "far right." (Is the expression "far left" in her lexicon, and does it apply to groups like the ACLU and PFAW?) McCain will surely say (more than) a few words about these subjects, but will probably give voice also to this position (with which I’m quite happy when it comes to judging):

"It’s not social issues I care about. It’s the Constitution of the United States I care about."

We’ll see.

Update: Here’s the speech, with red meat for judicial conservatives but little for those who want Sen. McCain to embrace an activist social conservatism. To be sure, there’s criticism of the ethereal language of Griswold v. Connecticut and of the steel wool secularism of Michael Newdow, but amidst all the talk about upholding a limited Constitution, there’s nothing about amending it. I didn’t expect it and I’m not really disappointed, as I share Sen, McCain’s view that most of our debates ought to be conducted in the political arena.

If there’s anything "unusual" about the speech, it’s that the Justice whose views are closest to the spirit of Sen. McCain’s remarks is Antonin Scalia, about whom he is conspicuously silent. That’s probably the price to be paid for trying to continue to appeal to "independents," not because Scalia should be persona non grata to them, but because his quite reasonable views have for too long been caricatured by those who disagree with him.

For more on the speech, read Gerard V. Bradley and this NRO editorial.

Discussions - 6 Comments

amidst all the talk about upholding a limited Constitution, there’s nothing about amending it. I didn’t expect it and I’m not really disappointed, as I share Sen, McCain’s view that most of our debates ought to be conducted in the political arena.


Of course the only way that debates can be conducted in the political arena is if the Constitution is "amended" back to it's original meaning. There can be no political debate about abortion as long as Roe stands. I don't see much evidence that McCain actually wants a more robust political debate. His anti-free speech position suggests the opposite.


The liberals are right to this extent. Constitutional interpretation is, in fact, influenced by one's understanding of society. When Scalia says we should respect the 1789 understandings of the words used in controversial clauses, he is saying we should honor contracts regardless of how they make us (or more accurately, our elites and organized grievance groups) feel today. That is not self-evident common sense, but a profoundly cultural and moral claim. I strongly agree with it, but don't think for a moment it isn't moral and cultural in nature. If McCain can't argue for (not merely embody) a culture that honors prior commitments, he can't argue meaningfully for the Constitution. Not to care about the overtly social issues is to be an ineffective advocate of constitutionalism. The two are not really separable. Therefore, a McCain speech on the Constitution doesn't mean much. We already know he isn't to be trusted there. But we also know that Hillary and Obama will be guided by the Harvard Law School version of the Constitution, which is to say, by no Constitution at all.

Ditto, Frisk. Especially the last sentence, which hit the nail on the head.

"...but because [Scalia's] quite reasonable views have for too long been caricatured by those who disagree with him."

I particularly liked Scalia's view, expressed during his recent love-fest interview ("You had all A's!") with Lesley Stahl on 60 Minutes, that torture can't be considered cruel and unusual punishment because it can't be considered punishment. Hmmm...it couldn't possibly be punishment for not cooperating and providing the desired information? Maybe Scalia honestly subscribes to Limbaugh's interpretation of it (when done by Americans) as manly hijinx. Fascinating.

Watch the interview though - no caricaturing is necessary. He asserts that it's not punishment and then sweetly confirms that is his view "and it just happens to be correct." So there.

How can McCain square devotion to Constitutional principles while championing campaign finance reform, and while fighting to codify lawlessness along our borders.

Answer: He can't. Except disingenuously.

Craig Scanlon, I didn't see the interview, but since we have argued about this before, I'll tell you what I think:

Torture is not punishment, because it it is not an end in itself. You punish someone for breaking the law, for a transgression. We can't be cruel or "unusual" in meting out punishment. (Though we have a local judge who gives out some odd sentences, trying to make the punishment fit the crime and keep the county jail from filling up.) We fine people money or time (variable quantities of substance or of life) in America. "Sentenced to hard labor!" was a line from movies of my youth. Does any state punish with that anymore? The hardest criminal labor I have seen in recent years is the picking up of garbage along the side of the highway.

To torture someone to death would be a cruel punishment, and confusing means with end. Torture may seem punishing, but it has a desired end, yes, giving information. In America, no one is sentenced to torture by any judge. It is a means to the desired end and a means that we dislike so much that it is rarely used, since we are pretty uncomfortable about it.

Justice Scalia may have a whole other view of this than I do and probably a better one. I look forward to hearing it.

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