Senator McCain has a problem.
The conservative base of his party distrusts him, so he has been making promises he hopes will placate them.
These promises which will affect all Americans.
One of the most important, yet under-addressed, promises concerns his stance on judicial nominations.
Conservatives remember McCain's organization of the "Gang of 14" in 2005 as a betrayal of their ideals.
Liberals seem to assume he will bring more nominees like Justices Alito and Roberts.
McCain himself has said is that he will appoint "strict constructionist" judges, and has left the matter at that.
The problem with this promise is: just what is a "strict constructionist"? There is no recognized theory of Constitutional or statutory interpretation that actually goes by that name, and no Supreme Court Justice identify themselves as such.
Associate Justice Antonin Scalia has in fact written:
Scalia and his intellectual heirs place primacy on the written text of the body of law as it appears, eschewing attempts to make the Constitution or laws relevant to changing times.
While textualism is internally self-consistent and intellectually honest, the same cannot be said for "strict constructionism.
" Honest textualist analysis sometimes provides surprising results.
During his tenure on the Supreme Court, Scalia has taken such "liberal" stands as saying men can sue for sexual harassment by male co-workers, deciding in favor of with criminal defendants in certain double-jeopardy cases, and reversing the conviction of a defendant deprived of his choice of attorney, among other cases.
Where the text of the Constitution or a law leads, Scalia has shown his willingness to follow.
Textualism and its intellectual cousins have escaped into popular political debate, where they have inevitably been over-simplified and distorted.
Strict constructionism is the bastard child of these theories and a particular political position.
It is a code phrase for "conservative justice" that also allows its users to proclaim their allegiance to a "purer" version of the Constitution.
Unlike honest textualist analysis, strict constructionism has a pre-determined outcome.
It does not respect the text when the Constitution presents roadblocks to a desired course of action.
The current administration, which also proclaims its allegiance to strict constructionism, provides good examples.
Such as, it has been especially aggressive in claiming Executive Privilege to protect its documents and deliberations from public scrutiny.
Vice President Dick Cheney went so far in trying to assert Executive Privilege as to actually claim that his office is not part of the Executive Branch.
The problem with these assertions is that the actual text of Constitution contains no mention or even suggestion of Executive Privilege.
The Fourth Amendment provides obvious barriers to the warrantless wiretap program, which the Administration brushed aside with barely a thought.
McCain not only said he supported the Administration's policy, but he also would spy on Americans without warrants.
The Fifth Amendment is a similar check on confining American citizens without trial, as the Administration has done and a President McCain will continue to do.
This is only the tip of the iceberg of issues where those that profess to "strictly construct" the Constitution rip it to shreds when given half a chance.
Commentators on the Right often excoriate Supreme Court decisions they disagree with by accusing judges of, "Legislating from the bench," or, "Making law.
" This oft-repeated accusation ignores one very simple point: judges are supposed to make law.
We live in a common-law system, and in a common law system precedents from one case become the law by which future cases will be decided.
Justice Scalia has eloquently set out this role.
Saying "judges cannot make law" does not merely undercut some decisions the Right considers objectionable, (e.
g.
, Griswold v.
Connecticut, Roe v.
Wade, etc.
), it undercuts all Supreme Court decisions interpreting federal law all the way back to Marbury v.
Madison.
Another problem that strict constructionism faces is that it expects judges to refrain from all interpretation of the Constitution.
The words on the paper are supposed to have easily-understood and obvious meanings.
This is simply not the case.
As soon as you start digging into any particular issue in the Constitution you find that almost every provision had multiple meanings even at the time of their writing.
We need to remember that the authors of the Constitution were a large body of men with disparate objectives and widely differing views.
The text of the Bill of Rights is even more problematic.
The first ten Amendments were not written at the Constitutional Convention, but originated in various places and were submitted to Congress in a variety of forms, where they were further modified in Congress before being submitted to the States for ratification.
Asking which point of view is "the" correct one for a clause is a meaningless endeavor.
Asking a judge to stick to the words on the paper as they were written and understood turns the judge into a historian.
Unfortunately, the historical record for the Constitutional Convention is very poor.
The Convention began by adopting a rule of secrecy in all debates, so there is no official record of any debates during the Convention.
James Madison kept the most extensive private record, but it has large gaps.
Other correspondence from delegates is only partially successful at closing these gaps.
Robert Yates, for example, committed in a letter to his brother to keep an "exact journal" of the proceedings, yet left the Convention less than halfway through.
Furthermore, the actual drafting of the Constitution as we have it was done not in the Convention debates at all, but in two separate Committees that also worked in secret and left no records at all beyond their final output.
As if that wasn't enough, the records we do have demonstrate that the Delegates often couldn't agree among themselves what any passage meant, even among members of the same delegation.
New York, for example, sent Yates, Alexander Hamilton, and John Lansing, Jr.
Hamilton and Yates emerged from the Convention on opposite sides of the ratification debate.
Hamilton was one of the chief writers of the Federalist Papers, arguing in favor of the new Constitution, while Yates the author of the Anti-Federalist Papers arguing against ratification.
They differed not only on the necessity for a new Constitution but also on the meaning of specific passages, such as the clause in Article 1 granting Congress power "To make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers...
" Yates saw this as "absolute and uncontroulable [sic] power" that would completely eliminate the governments of the States, while Hamilton said: "They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.
" Note that they weren't even talking about what we conventionally consider controversial clauses - this was a basic power of Article I.
Reading the Federalist and Anti-Federalist papers if eye-opening because it makes crystal clear that even at the time of ratification, there were vigorous disagreements about the meaning of the words on the paper.
Almost every provision of the proposed Constitution was dissected and used to prove opposite points of view on both sides.
How are we to pretend there is one fixed meaning that is plainly there if only we look at it in the right way? Yet that is exactly what McCain promises to his voters.
One school of thought tries to argue around the differing views of the authors by investigating the views of those that gave the finished document life - the various ratifying conventions.
Sadly, these were no less divided than the Framers.
The Massachusetts convention voted to ratify by a vote of only 187-168, New Hampshire by a vote of 57-46, Virginia's convention ratified by a margin of only 10 votes out of 168, and New York was closer still - only 30 to 27 in favor.
The simple truth is this: There is no singular "original" meaning for almost any passage in the Constitution even among those alive at the end of the Eighteenth Century.
When one gets right down to it, strict constructionism is not a promise to honor the Constitution; it is a promise to dispense with a necessary part of the checks and balances the Constitution put into place.
It is a promise to make the Judicial Branch subservient to the Executive Branch.
While this has obvious attraction to a Presidential candidate, it should have no attraction to the rest of us.
Independence and prudence in the Supreme Court specifically, and the Judicial Branch generally, are necessary protections against the overwhelming power of an unchecked Executive.
There should be no assurance to Americans of any political stripe in such a promise.
The conservative base of his party distrusts him, so he has been making promises he hopes will placate them.
These promises which will affect all Americans.
One of the most important, yet under-addressed, promises concerns his stance on judicial nominations.
Conservatives remember McCain's organization of the "Gang of 14" in 2005 as a betrayal of their ideals.
Liberals seem to assume he will bring more nominees like Justices Alito and Roberts.
McCain himself has said is that he will appoint "strict constructionist" judges, and has left the matter at that.
The problem with this promise is: just what is a "strict constructionist"? There is no recognized theory of Constitutional or statutory interpretation that actually goes by that name, and no Supreme Court Justice identify themselves as such.
Associate Justice Antonin Scalia has in fact written:
Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute.The textualism that Scalia refers to is a tool for Constitutional analysis.
I am not a strict constructionist, and no-one ought to be.
Scalia and his intellectual heirs place primacy on the written text of the body of law as it appears, eschewing attempts to make the Constitution or laws relevant to changing times.
While textualism is internally self-consistent and intellectually honest, the same cannot be said for "strict constructionism.
" Honest textualist analysis sometimes provides surprising results.
During his tenure on the Supreme Court, Scalia has taken such "liberal" stands as saying men can sue for sexual harassment by male co-workers, deciding in favor of with criminal defendants in certain double-jeopardy cases, and reversing the conviction of a defendant deprived of his choice of attorney, among other cases.
Where the text of the Constitution or a law leads, Scalia has shown his willingness to follow.
Textualism and its intellectual cousins have escaped into popular political debate, where they have inevitably been over-simplified and distorted.
Strict constructionism is the bastard child of these theories and a particular political position.
It is a code phrase for "conservative justice" that also allows its users to proclaim their allegiance to a "purer" version of the Constitution.
Unlike honest textualist analysis, strict constructionism has a pre-determined outcome.
It does not respect the text when the Constitution presents roadblocks to a desired course of action.
The current administration, which also proclaims its allegiance to strict constructionism, provides good examples.
Such as, it has been especially aggressive in claiming Executive Privilege to protect its documents and deliberations from public scrutiny.
Vice President Dick Cheney went so far in trying to assert Executive Privilege as to actually claim that his office is not part of the Executive Branch.
The problem with these assertions is that the actual text of Constitution contains no mention or even suggestion of Executive Privilege.
The Fourth Amendment provides obvious barriers to the warrantless wiretap program, which the Administration brushed aside with barely a thought.
McCain not only said he supported the Administration's policy, but he also would spy on Americans without warrants.
The Fifth Amendment is a similar check on confining American citizens without trial, as the Administration has done and a President McCain will continue to do.
This is only the tip of the iceberg of issues where those that profess to "strictly construct" the Constitution rip it to shreds when given half a chance.
Commentators on the Right often excoriate Supreme Court decisions they disagree with by accusing judges of, "Legislating from the bench," or, "Making law.
" This oft-repeated accusation ignores one very simple point: judges are supposed to make law.
We live in a common-law system, and in a common law system precedents from one case become the law by which future cases will be decided.
Justice Scalia has eloquently set out this role.
Common-law courts performed two functions: One was to apply the law to the facts.The question is not whether judges should make law, the question is what limits are on the power of judges to interpret and make law? This is only reasonable question, in fact.
All adjudicators - French judges, arbitrators, even baseball umpires and football referees - do that.
But the second function, and the more important one, was to make the law.
Saying "judges cannot make law" does not merely undercut some decisions the Right considers objectionable, (e.
g.
, Griswold v.
Connecticut, Roe v.
Wade, etc.
), it undercuts all Supreme Court decisions interpreting federal law all the way back to Marbury v.
Madison.
Another problem that strict constructionism faces is that it expects judges to refrain from all interpretation of the Constitution.
The words on the paper are supposed to have easily-understood and obvious meanings.
This is simply not the case.
As soon as you start digging into any particular issue in the Constitution you find that almost every provision had multiple meanings even at the time of their writing.
We need to remember that the authors of the Constitution were a large body of men with disparate objectives and widely differing views.
The text of the Bill of Rights is even more problematic.
The first ten Amendments were not written at the Constitutional Convention, but originated in various places and were submitted to Congress in a variety of forms, where they were further modified in Congress before being submitted to the States for ratification.
Asking which point of view is "the" correct one for a clause is a meaningless endeavor.
Asking a judge to stick to the words on the paper as they were written and understood turns the judge into a historian.
Unfortunately, the historical record for the Constitutional Convention is very poor.
The Convention began by adopting a rule of secrecy in all debates, so there is no official record of any debates during the Convention.
James Madison kept the most extensive private record, but it has large gaps.
Other correspondence from delegates is only partially successful at closing these gaps.
Robert Yates, for example, committed in a letter to his brother to keep an "exact journal" of the proceedings, yet left the Convention less than halfway through.
Furthermore, the actual drafting of the Constitution as we have it was done not in the Convention debates at all, but in two separate Committees that also worked in secret and left no records at all beyond their final output.
As if that wasn't enough, the records we do have demonstrate that the Delegates often couldn't agree among themselves what any passage meant, even among members of the same delegation.
New York, for example, sent Yates, Alexander Hamilton, and John Lansing, Jr.
Hamilton and Yates emerged from the Convention on opposite sides of the ratification debate.
Hamilton was one of the chief writers of the Federalist Papers, arguing in favor of the new Constitution, while Yates the author of the Anti-Federalist Papers arguing against ratification.
They differed not only on the necessity for a new Constitution but also on the meaning of specific passages, such as the clause in Article 1 granting Congress power "To make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers...
" Yates saw this as "absolute and uncontroulable [sic] power" that would completely eliminate the governments of the States, while Hamilton said: "They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.
" Note that they weren't even talking about what we conventionally consider controversial clauses - this was a basic power of Article I.
Reading the Federalist and Anti-Federalist papers if eye-opening because it makes crystal clear that even at the time of ratification, there were vigorous disagreements about the meaning of the words on the paper.
Almost every provision of the proposed Constitution was dissected and used to prove opposite points of view on both sides.
How are we to pretend there is one fixed meaning that is plainly there if only we look at it in the right way? Yet that is exactly what McCain promises to his voters.
One school of thought tries to argue around the differing views of the authors by investigating the views of those that gave the finished document life - the various ratifying conventions.
Sadly, these were no less divided than the Framers.
The Massachusetts convention voted to ratify by a vote of only 187-168, New Hampshire by a vote of 57-46, Virginia's convention ratified by a margin of only 10 votes out of 168, and New York was closer still - only 30 to 27 in favor.
The simple truth is this: There is no singular "original" meaning for almost any passage in the Constitution even among those alive at the end of the Eighteenth Century.
When one gets right down to it, strict constructionism is not a promise to honor the Constitution; it is a promise to dispense with a necessary part of the checks and balances the Constitution put into place.
It is a promise to make the Judicial Branch subservient to the Executive Branch.
While this has obvious attraction to a Presidential candidate, it should have no attraction to the rest of us.
Independence and prudence in the Supreme Court specifically, and the Judicial Branch generally, are necessary protections against the overwhelming power of an unchecked Executive.
There should be no assurance to Americans of any political stripe in such a promise.
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