McCain, Translated

I just got an e-mail from the McCain campaign that touches on a number of my sore points with regard to the Orwellian last seven and a half years in the US, so I thought I'd go through it and comment.

To limit the size of this post, I will only quote the lines I want to reply to, but I'll post the full text of the e-mail in the first comment on this post.

If one of my Democratic opponents is elected in November, you can rest assured that given the opportunity to appoint judges, they will appoint those who make law with disregard for the will of the people.

This is a big tug at the emotions, but it is a bogus argument, and it disagrees with what he says later. The Judicial Branch is not there to rule by popularity, they're there to rule based on the law, and most importantly among the laws, the Constitution. If popular opinion disagrees with the Constitution, we have a method of resolving that, it's called a Constitutional Amendment.

I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their will through judicial fiat. If you want judges who will clearly and completely adhere to the Constitution of the United States and who do not legislate from the bench to serve on the U.S. Supreme Court, then I ask that you join my campaign for president today...

This is simplistic claptrap. The role of a judge isn't simply to apply the law as written, the problem is the difference between theory and practice. When an Engineer goes to build a building, he has to confront the actual laws of physics, not the theoretical ones in the head of the architect. So when a judge goes to apply the law to a case, he has to determine how the law applies, when the original law as written isn't exactly clear.

If the law was 100% clear, 100% complete and 100% unambiguous, there'd be no need for judges. You'd plug in the facts into a Constitutional computer along with the jury's verdict (for those cases that have juries) and the computer would tell you exactly what punishment the law specified.

But the law is not clear. For example, the law may say "Striking an individual with intent to cause harm is criminal assault and punishable by so many days in prison". It may also say "Assault committed in the process of defending one's self against an external attacker shall not be considered criminal assault." But then someone needs to figure out what counts there. Does the defense have to be against an assault, or is it OK to haul off and hit someone who is verbally abusing us? Does the defense have to be against personal harm, or is it ok to defend our children? Our spouses? Our friends? An innocent bystander?

And how do you deal with the evolving English language? I've discussed this before, but the argument that a right to "privacy" is not explicitly in the Constitution is bogus. The word "privacy" in the days the Constitution was originally written meant "bathroom" or "outhouse" or the act of being unobserved while using said location. So to have written about the right to "privacy" at that time would have been like saying "We believe every American has the right to urinate with the door closed and no one observing them." It makes no sense.

If you limit judges to only enforcing the literal word on the page and don't even allow them to interpret what that literal word meant in the language of the day it was written, you will quickly find our legal system falling apart. Interpretation is not merely the purview of "activist judges", but in fact a vital portion of the job of any jurist.

I need your support now so that as your president I can nominate judges like Justices Roberts and Alito. Judges who have proven themselves worthy of our trust. Judges who take as their sole responsibility the enforcement of laws made by the people's elected representatives. Judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.

Really? Values like the right to be secure from improper seizure of our property? It was Alito and Roberts who sided with the rights of states to apply eminent domain not for public works projects, but to then provide the land to developers who plan to build shopping malls or in at least one case, condominiums. Is that really the values we support as a nation, if someone wants to build nicer homes for richer people on the land on which you currently reside the state should be able to just shove you off of your land?

Personally, I think the Supreme Court has muddled along pretty well for most of its existence. There are a few cases I could point to that I disagree with, some on legal grounds and others on moral grounds. Some of the latter type I agree with on legal grounds, but believe the law should therefore be changed.

It is my belief that when McCain and others of his philosophical ilk say they want to avoid "judicial activism" what they're really saying is "I want judges who will practice my particular brand of judicial activism, re-making the Constitution in the image I have of it, not necessarily the image that the Framers had."

Liam.