RobertEmmet

By Robert Schlesinger

I found a lot to like in John McCain’s speech on judicial philosophy today. Unfortunately not the substance. McCain perfectly fit my definition of a strict constructionist: Someone who rejects the inherent powers claimed by the Congress or the judiciary because they might impinge on the inherent powers claimed by the president.

Here’s McCain today:

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.

Yep. Can’t disagree with that. Checks and balances — don’t let one branch have untrammeled power. I like it.

In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn’t always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

Preach!

There is one great exception in our day, however…

Ooh! Ooh! I know! It’s the wack-nut theories that the White House has spouted over the last few years where they claim things like the president gets to decide which laws to enforce and has magical, unlimited commander-in-chief powers that allow him to do whatever he wants in the name of defending the country. RIght senator?

…and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power.

Nnnooo. Not right. In fact McCain is trotting out that hoary chunk of conservative-pleasing red meat about judicial activists.

In this regard McCain once again proves depressingly in line with the funny-but-for-the-fact-that-it’s-dangerous legal philosophy that has mesmerized the GOP. Great journalist (and former colleague) Charlie Savage details the nutball theories in his Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. The practical effect in the last eight years has been a theory that essentially says that when the country is at war the president has unlimited authority to do whatever he wants to protect the country. And guess who gets to decide when the country is at war?

Of course the really depressing thing is that not only will McCain not call of a rollback of the insane imperial presidential philosophy, neither I suspect will Clinton or Obama.

UPDATE: I am not alone.