History As We Wait for the Final Numbers…
posted by May 6 at 22:02 PMon
I recommend this NYT editorial on John McCain:
While Democrats voted in North Carolina, which Mr. Obama won, and in Indiana, which was too close to call at press time, Mr. McCain spoke about his judicial philosophy. He is determined to move a far too conservative and far too activist Supreme Court and federal judiciary even further and more actively to the right.
Mr. McCain predictably criticized liberal judges, vowed strict adherence to the founders’ views and promised to appoint more judges in the mold of Chief Justice John Roberts and Justice Samuel Alito. That is just what the country does not need.
Since President Bush chose Justices Roberts and Alito, the court has ordered Seattle and Louisville to scrap voluntary school integration, protected employers who illegally mistreat their workers and constrained women’s right to choose and citizens’ right to vote.
Mr. McCain did not mention, of course, how the Roberts-led court blithely overruled Congress by nullifying an important part of the McCain-Feingold campaign finance law. He did wax nostalgic about what “the basic right of property” has meant “since the founding of America.” (He did not mention that in 1789, many women could not own property and African-Americans were property, but he did criticize the idea that values evolve over time.)
I am very close to a 3L law student, and I have been distressed as to the slow migration of his ideas about the judiciary over the last couple of years. The Constitution is neither living nor dead—it’s a text, like any other. Call me a doctrinaire English major, but I know that even words and phrases change meaning over time. We cannot divine the founder’s true intentions through their writings, and it’s useless to try.
I’ve had a very hard time understanding why the court’s most hardcore Catholics have cleaved to dunderheaded, precedent-defying originalism. Weren’t they taught from the cradle that both scripture and tradition have their place? Literal interpretation of anything, from the Bible to the Constitution, is folly. “We the People” now signifies something wholly different from the meaning it had for the founders, and we’re all better off for it.