Strengthening Constitutional Self-Government

No Left Turns

McCain’s judiciary revisited

Our friend RC2 has some worthwhile second thoughts on McCain’s speech. She’s right that appointing good judges is only a part of the solution. McCain may or may not be aware of the other part, but I don’t think he should necessarily telegraph his punch there. If he were campaigning to educate rather than to win, perhaps he should have said something, but why pick a fight before the fight can actually be consequential, when all it can do is give you bad press and hand your opponent a stick with which he’ll beat you from now until November?

I’m happy in my role as private citizen to say that the Court doesn’t have the final word on the constitutionality of a law, that Presidents and members of Congress are also entitled to their views about constitutionality, that a court’s declaration that a law is or isn’t constitutional shouldn’t necessarily prevent Congress from legislating or require the President to enforce, and so on. I make such arguments in the classroom all the time. But I’d rather make them in public on behalf of a President who is rightly resisting a wrong-heaed Supreme Court decision or a Congress that’s seeking to act despite a "respectable" (but not conclusive) body of opinion that the measure is, or that the Supreme Court would find that the measure is, unconstitutional.

Patience, patience.

Discussions - 1 Comment

Dr. K, not sure that McCain should remain silent during this campaign about the executive powers he has in reserve, apart from naming good judges, to limit unconstitutional decisions of the Supreme Court.

The President who best understood this whole question of course was Lincoln. Consider that in the Senate debates in 1858 with Douglas, Lincoln directly said that as a Senator, he would support legislation that overturned the Dred Scott holding. Douglas branded that view as anarchic -- indeed I believe Douglas was the first major American figure to argue that the Supreme Court has "the last word" on the interpretation of the Constitution.

Now Lincoln lost that election, but when he ran for President two years later -- there being no active campaigning at that time -- Lincoln had copies of his 1858 debates printed up and used as campaign material. In other words, he made sure the whole country was informed of his view that the other branches should push back against the Supreme Court in certain cases.

McCain doesn't need to give an elaborate argument, but a hint or two would do. I am inclined to believe most Americans, who already dislike many of the Supreme Court's unconstitutional decisions, would cheer him on. Otherwise, the only reason for him to give the speech he did give was to wink at the hard-core conservatives to assure us that we will like his judicial nominees...but don't tell anybody!

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