McCain Policy: Judicial Philosophy

2008 Presidential Candidate Platform Discussion

John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

www.johnmccain.com...


Presented for critical discussion and analysis by ATS members under the spirit of the new guidelines announced in This Thread.

I thought the two candidate's responses to the question of which SC judge they would have not nominated was very interesting. McCain was very straightforward in his opposition to legislating from the bench, and very supportive of their responsibility to interpret the Constitution. Those are my views also.

It is my personal observation that the phrase "legislating from the bench" is political code-speak for a judicial decision with which someone disagrees. I've heard it in both directions, and do not put a whole lot of weight to it.

I have at this reading one concern regarding McCain's judicial philosophy:

John McCain's judicial appointees will understand that the Federal government was intended to have limited scope, and that federal courts must respect the proper role of local and state governments.

Source

While I agree that the Federal government is intended to have a limited role, I believe one aspect of that role is to guarantee enforcement of the Constitution nation wide.

For example, the 14th amendment to the Constitution guarantees, among other things:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Source

This equal protection under secular law clause means that it is the job of the Federal Government to ensure that all citizens, without regard to their state of residence, have the same protections under the law.

This means for example that a state or local community may NOT restrict the freedoms of some groups of citizens. Thus it is not legal for a state to say people of African descent, to use a real example, are not allowed to vote.

To bring this to a current issue, the same rule applies regarding marriage. McCain appears to be of the philosophy that it is OK to restrict the ability of people to be married in secular law, based on the relative gender of the participants:

It is reflected in his consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage.

Source

The 14th Amendment clearly states that citizens may not have their rights restricted in this manner.

Whether I or John McCain personally approve of same sex people being married under secular law is not relevant. The US Constitution clearly guarantees that they can.

So I am a bit concerned that McCain's judicial appointments will, in a manner of speaking, "legislate from the bench" in violation of the 14th amendment, at least in the case of same sex marriage.

reply to post by Open_Minded Skeptic



You pick a very interesting example to discuss. The question is, is there a "right" to marriage? Not in the Constitution there isn't. So if a State decides that their definition of marriage is X, should the SCOTUS be permitted to overturn that definition? If so, that would be an example of "legislating from the bench"

reply to post by jsobecky


The question is not "is there a 'right' to marriage", the question is, if a state recognizes an institution called 'marriage', is the state allowed to restrict the freedom of who may participate in that institution?

Clearly, the Constitution does not explicitely say anything about marriage, on that we agree completely.

However, beyond restrictions related to age and mental competence (i.e. children and those who cannot make an informed choice about entering into a marriage contract), I do not see that a State has the authority to restrict marriage.

Are States allowed to restrict marriage to people of the same race? Age? Religion? Political affiliation?

No. Those choices are left up to the individual participants, as they should be. In other words, if an African Jew wishes to marry an Asian Buddist, it is no business of the state, as long as they are both of legal age and mentally competent to understand what they are doing.

I believe the 14th Amendment means the same standard applies to relative gender. It is up to the individuals, not the City, County, State or Federal Government.

Edit to fix wording regarding age.


[edit on 17-9-2008 by Open_Minded Skeptic]

reply to post by Open_Minded Skeptic


Marriage is not a secular institution; it is a religious one. The rights associated with marriage can be achieved through civil unions. Therefore, I don't see the validity of forcing a definition on a State.

I would have an issue with a State that refused to acknowledge civil unions, however.

Originally posted by jsobecky
Marriage is not a secular institution; it is a religious one.

I absolutely and totally disagree. I am married, my marriage is recognized in all 50 states, and my marriage has no religous component at all. Marriage, for the purpose of any discussion that the SCOTUS or any level of government has anything to say about it, is an institution of secular law.

Any religion can recognize or not any marriage, no secular organization such as a government has anything to say on that.

But to say marriage is a religous institution is flat wrong. A marriage may have a religous component, but it is the secular documentation that has legal standing, NOT the religous component.

To call this a Civil Union in the case of gay people smacks of the old "separate but equal" fallacy which has already been struck down by the SCOTUS.

ETA: This is getting close to off-topic of the subject of the thread... My intent is to express my concerns regarding McCain's judicial philosophy, and why. The marriage example is merely that: an example of where I think McCain's philosophy is incorrect.

[edit on 17-9-2008 by Open_Minded Skeptic]

reply to post by AboveTopSecret.com


He defines himself as a "STRICT CONSTRUCTIONIST" on his website
www.johnmccain.com...

Samuel Alito, John Roberts, (William Rehnquist) are McCains Models
www.realclearpolitics.com...

Article by John McCain...
I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.

Wikipedia...on STRICT CONSTRUCTIONISM
en.wikipedia.org...
Few judges self-identify as "strict constructionists", due to the narrow meaning of the term. Antonin Scalia, the justice most identified with the term, has said that he is "not a strict constructionist and no-one ought to be,"[4] and has called the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute." In contrast, he claims to look for the ordinary meaning of words, not their "strict" meaning. Constitutional scholar John Hart Ely opined that it was not really a philosophy of law or a theory of interpretation, but a coded label for judicial decisions popular with a particular political party. [5]

reply to post by Open_Minded Skeptic

Originally posted by Open_Minded Skeptic
ETA: This is getting close to off-topic of the subject of the thread... My intent is to express my concerns regarding McCain's judicial philosophy, and why. The marriage example is merely that: an example of where I think McCain's philosophy is incorrect.

[edit on 17-9-2008 by Open_Minded Skeptic]

You're right; we can pick this up in another thread at a later date.

reply to post by jsobecky
What federal human rights statutes are in the books that could be interpreted to include a person's right to marraige?

Laws, being code, are not always direct, clear, and specific.

Just FYI.

The Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
...
The First through Eighth Amendments address the means by which the federal government exercises its enumerated powers, while the Ninth Amendment addresses a "great residuum" of rights that have not been "thrown into the hands of the government."

In other words, just because the Constitution doesn't expressly state or enumerate a specific right, doesn't mean that we can be denied it.

Originally posted by AboveTopSecret.com
2008 Presidential Candidate Platform Discussion

John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

www.johnmccain.com...

To me, this quote is doublespeak:

"As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat."

Laws are opinions enacted into fact. A bill that states "Murder is a crime." is the written expression of the opinion of elected officials. That bill passes both the House and Senate, and is then enacted into law with the signature of the President. Thereafter, "Murder is a crime." becomes a factual statement of law.

The notion of "applying the law as written" would then put the current administration into deep hot water. All who participated in the executive decision to illegally spy on U.S. citizens should then be charged as felons under the laws that existed at the time the those crimes were committed. (Think that John McCain would go that far to prove his commitment to U.S. citizens?)

Judges should not substitute their opinion for law, but judges are allowed to use their discretion to interpret and apply law.

Reason should prevail over opinion. However, since we are dealing with human beings, is pure reason always sufficient to the matter at hand?

How does a law that is broad in scope, that is written in such a way as to allow different and even opposing interpretations, depending on the case, be followed to the letter?

The debate surrounding Roe v. Wade is largely opinionated. Some of it reasonable, some of it not. The Supreme Court decision itself reaffirms the rights of women, and to some it infringes upon the rights of the unborn. How can a Justice reach a vote one way or the other without consulting his or her own well reasoned opinion?