McCain Says "The Supreme Court Enforces the Constitution"
Here, second clip.
Apparently the girls on The View really kicked him around. I've only watched a bit of it, but here's something people haven't been commenting on:
McCain says, at about the 1:15 mark of the second clip:
"My interpretation of the Constitution of the United States is that the United States Supreme Court enforces the Constitution of the United States."
I usually construe such things as slips of the tongue...but this came out in such a deliberate, careful way that I'm a little dubious about that. A literal jaw-dropper.
Here, second clip.
Apparently the girls on The View really kicked him around. I've only watched a bit of it, but here's something people haven't been commenting on:
McCain says, at about the 1:15 mark of the second clip:
"My interpretation of the Constitution of the United States is that the United States Supreme Court enforces the Constitution of the United States."
I usually construe such things as slips of the tongue...but this came out in such a deliberate, careful way that I'm a little dubious about that. A literal jaw-dropper.
posted by Winston Smith at
2:00 PM
16 Comments:
But he has experience!
What could that possibly mean though if it weren't a slip?
Presumably McCain doesn't think that the Surpeme Court controls any police forces that wander around arresting criminals. Certainly he doesn't mean any kind of physical enforcing.
But what else could enforcing mean? My mind only comes up with one other possibility: the Supreme Court "enforces" the Constitution with the power of judicial review of the constitutionality of laws passed by Congress. Which is pretty unobjectionable, as far as I can tell.
Maybe you meant something else, though.
NB: Whoopi's question about slavery is dumb. The kind of judge McCain is talking about would not throw out the 13th Amendment.
Not that that says anything about your power or the quality of McCain as a potential president. I was just annoyed.
Spencer -
At first, I thought Whoopi's question was pretty weird, too, but when I watched the clip, it was clearer that Whoopi's question was actually directed at McCain for saying that he wanted to preserve the Constitution as the founders saw it. She asked then, should she be worried about being returned to slavery and used that question to point out that sometimes the Constitution needs to be amended - it wasn't as dumb as it sounded without that latter part, but she did say it after her initial question, indicating that she was making a valid point if you ask me.
Also, the shock about the Supreme Court enforcing the Constitution is that the Executive Branch is the branch that is tasked with enforcing the laws of the land - Constitution included. The Supreme Court only reviews laws made by Congress for their constitutionality. They do not enforce these laws. McCain's statement underlines a basic misunderstanding of our government's workings. That's the shock.
1. Yeah, of course that's the thing--the President enforces the laws... The only think I can figure is that McCain skipped seventh-grade civics.
2. As for Whoopi G's question: at first I thought it was dumb, a la Spencer, then I thought it was smarter, about the intent of the framers, then I thought it was actually supposed to be the first thing, but ended up being the second. Unclear, sez me.
I understand that the Executive branch enforces the Constitution, which maybe I should have made clear in my original post. The point I was just trying unsuccessfully to make, however, is that McCain couldn't possibly mean that the Supreme Court is supposed to enforce the Constitution the way the executive branch does because there is nothing that the Supreme Court does that looks remotely like what the Executive branch does.
McCain's comment would only be cause for concern if his word "enforce" could really be taken in any way that would imply he thinks there is a confusion between the two branches. But what could that sense of the word be? In fact, he seems to be towing the usual conservative line against "activist judges" - making the Court less like the other branches in power, not more.
Re: Whoopi. Okay, maybe. But if part of the intent of the framers was to have an amendment process, you would have to include the changes embodied by the Amendments within the intent of the founders.
But given that that's not prima facie obvious, maybe her comment isn't dumb. It just shows that she doesn't read much converse with many conservatives about judicial philosophy, I guess. (I take my interpretation to be pretty standard among conservatives on the subject.)
"if part of the intent of the framers was to have an amendment process, you would have to include the changes embodied by the Amendments within the intent of the founders."
I don't think that's true. The intent of the founders would be to accomodate reasonable changes, but those specific changes which actually occur in the future would not be things of which we could say that the founders intended to enact. You can't say that the 13th amendment was the intent of the founders because they had nothing to do with its actual implementation. Sure, they intended for such changes to be possible, but that's not the same as intending for any actual, specific change to be made.
Creating something that can change doesn't mean you intend for every individual future change to occur.
Figuring out just what "intention" entails is difficult, but I think it is pretty clear that the act of designing something which permits change is not sufficient for making all future changes part of the intention of the designers.
That would be akin to saying that he who designs a programming language intends for the creation of each and every program that comes about through that language's implementation.
That seems false.
As for the McCain thing - I don't know how what he said tows any line against activist judges, nor how it makes the Supreme Court seem any less like other branches. In fact, I don't know that what he said really draws any comparisons at all with the other branches. Further, I would think that such an interpretation of the behavior of the Supreme Court as "enforcing" the Constitution would, if anything, lead to judicial activism.
I do agree, however, with what I think you're indicating - that he couldn't possibly mean that the Supreme Court enforces the Constitution in the same way that the Executive branch does - that's too obviously absurd.
However, I do think that using the word "enforce" would, as I noted, be more an indication of a will for judicial activism in that it makes the Supreme Court out to be a sort of Constitution patrol that actively goes around compelling others to follow the Constitution through judicial review.
In short, I don't think he was saying that the Supreme Court enforces the Constitution like the Executive branch does - I agree with you. I do, however, think that it indicates that he thinks the Supreme Court ought to actively attempt to ensure the Constitution is followed, rather than retain its role as a passive, primarily appellate entity which determines only whether or not those cases which are brought to them are Constitutional.
So, sounds more judicially activist to me, if anything!
Of course, all of this could be utter BS, since I'm nowhere near a scholar of our government and its workings, but clearly I don't think anything I said is ridiculously out of sync with how our government ought to operate. I am, of course, open to being wrong about that.
Well, I've spoken sloppily again. I apologize for that.
Language about the "intent of the framers" is a pretty common way of describing what is loosely called "strict constructionism" or sometimes "originalism" (I don't know enough about judicial philosophy, honestly, to know what is the more precise term). The idea is that the meaning of the Constitution is what it would have originally meant (either according to the Framers or to people generally at the time).
You are right to point out that, strictly speaking, the 13th Amendment would not have been a part of the intention of the framers. But the purpose of the philosophy, as far as I can tell, is not some slavish desire to copy the supposedly perfect generation of Americans. Rather, the purpose is to maintain a stable meaning for the words of the Constitution in an effort to maintain the rule of law. The idea is that there can be no rule of law if the law is open to a different interpretation every generation.
Therefore, the phrase "the intent of the framers" is just a shorthand way of saying "the originally intended meaning of the law in question." Such a philosophy sees no problem in adopting, say, the 13th Amendment, because the original document includes provisions for later amendments. This kind of conservative jurisprudence, therefore, in no way would think that Whoopi should be returned to slavery. There is an amendment to the Constitution, the original intent of which was to prohibit slavery. Therefore slavery is unconstitutional. McCain's judicial philosophy was being taken as a complete caricature of itself by W. Goldberg.
Also, the phrase "judicial activism," commonly used by conservatives, generally refers to what is seen to be an overreaching interpretation by the Court in order to combat some perceived social ill. So, if I don't like capital punishment, for example (which I don't), it would be judicial activism for me to read an opposition to capital punishment back into the Constitution even if that were not part of the original intent of the document. The fear about judicial activism is that it essentially turns the court into a legislative body. By interpreting the Constitution/Amendments/Laws according to my own political/social agenda, I am creating legal strictures that no elected body actually ever intended to be in place. McCain tacitly enunciated this position when he agreed with the View co-host (Hasselback?? I don't know who these people are) who said that, though McCain thought Roe v. Wade was bad jurisprudence, he would be okay with a law (or Amendment?) passed by Congress making abortion legal.
As for the executive branch: McCain has said he would appoint judges in the mold of Justice Roberts, who himself has a somewhat hands-off approach to the judiciary. For example, he tends not to want to step on the toes of the executive in its exercise of its war powers.
I'm not sure what you have in mind with "actively attempt[ing] to ensure the Constitution is followed," but as far as I can tell, the kind of judicial philosophy outlined above, and very common among conservatives, does not want the Court to be anything other than an appellate body. In fact, isn't the Court not only "primarily" but exclusively an appellate body? I thought it was, but your sentence made me second guess myself. Doesn't judicial review only happen when a case is brought before the court in which a law is declared unconstitutional? (Actually, what's interesting about this most characteristic power of the judicial branch is that it is not specifically given in the Constitution, if I remember correctly.)
I don't think I have ever heard anyone suggest that the Supreme Court should be looking around the country for Constitutional faux pas to jump on. Since everything else in McCain's discussion indicates features that I have outlined above, it would be a pretty major surprise if he were saying that this is what the Court should be doing. And by indicated Justice Roberts as an example of the kind of judge he likes, McCain has satisfied me that he would not be seeking for judges to "enforce" the Constitution in any problematic way.
Spencer,
The problem with the right's criticism of *judicial activism* is that they only selectively invoke it. Here are just a few examples of conservative judicial activism:
http://www.nytimes.com/2007/07/09/opinion/09mon4.html
What's more, I detect no conservative outrage about some of the most absurd extra-Constitutional constructs as long as they are in service to right-wing interests; for example, the concept of corporate personhood. Maybe one of these days a right-winger could point out to me where in the Constitution it says corporations have rights.
But the bigger problem with *originalism* or *strict constructionsm* is one that Barack Obama pointed out in his most recent book. This is that since the founders themselves didn't even agree, how is one to discern what the original intent was? Should we hew to Hamilton's preference for a powerful executive (he supposedly actually wanted a monarch) and dominant central bank? Or Madison's belief in the primacy of a strong central government over provincial powers in the states to diminish the power of factions (Federalist No. 10)? Or Jefferson's belief in an agrarian economy and strength in local governments? (Of course Jefferson is only philosophically a 'founder' or 'framer' because he was actually in France during the convention)
There just is no monolithic *original intent* that can easily be discerned just by reading the document. It is a relatively open-textured document that allows, even invites, interpretation. If it's so obvious what was intended in specific cases, why all the scholarship in the area of Constitutional Law? One would almost think, listening to the conservatives arguing for originalism, that we've developed a whole legal infrastructure and educational system solely to discuss the definition of balls and strikes.
Lewis,
This is the second time in 24 hours that you have made me recall the (paraphrased) words of Plato: "I deserve what all fools deserve from the wise - to be corrected." Thank you.
You (and Obama) are right about the problems with originalism and strict constructionism. This conversation is making me want to read up a bit more on the options of theories of constitutional law. Any good suggestions?
You are also right about the judicial activism of the current court.
So, the kind of jurisprudence I was outlining cannot serve as the last word on the subject - neither in theory nor in actual practice.
However, I still think Whoopi's comment was at least uninformed. Even if McCain's judicial philosophy is ultimately incoherent and impracticable, it seems pretty clear that none of the problems above would indicate the possibility of reading the 13th Amendment out of the Constitution.
Of course, the worthiness of Whoopi's comment is a question much less important than the actual judicial appointments made by the next president. So I thank you, Lewis, for giving me my deserved correction.
Actually Spencer, I didn't even consider it a *correction* of you because I didn't perceive you as necessarily an ADVOCATE of originalism as a Constitutional philosophy. I simply assumed you were explaining the philosophy in terms of "people who are ___ists believe x".
And you're far from a fool. Anything but. Hell, I could be wrong, and I'm open to correction. I subscribe to Bertrand Russell's assertion that "the essence of the liberal outlook lies not in what opinions are held, but in how they are held. Instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment". So in that respect, even if you did subscribe to that judicial philosophy, your open-mindedness puts you in good company, as Russell was hardly a fool.
Anyway, off the top of my head I don't know of any good summaries or the living constition vs. originalism (the rough dicotomy that exists in Constitional law, although there are other axes along which people argue). However, there have been some really good discussions at Jack Balkin's blog: http://balkin.blogspot.com/
On the narrower point of Goldberg's comment, I agree with you. To argue that we should always be faithful to the Constitution AS ADOPTED results in a paradox: why would the framers include language permitting amendment and explaining how it should be done if they intended for the original language, and only the original language, to govern?
A more charitable explanation of originalism, or at least of criticisms of 'judicial activism', is that judges should attempt to ascertain the intent of any of the following: 1) the Constitution in its unamended portions 2) the amendments as adopted 3) legislation made pursuant to proper functioning of the legislature in the Constitution.
Goldberg's comment is instructive however, in that it brings into sharp relief the absurdity of a slavish (no pun intended) devotion to discerning the discrete beliefs of people 230 years ago. There is actually evidence that many of these men believed slavery to be wrong, and assumed that it would be outlawed. That itself is evidence that what they wrote down in the Constitution is not a good indicator of their *intent*, or is at least an incomplete indicator.
Just my $.02
Well, I'm a bit lost on this conversation. However, I will say:
The Supreme Court is not entirely appellate in nature. They do, actually, have original jurisdiction in certain cases.
For example, Article 3, Section 2 of the Constitution specifically states that “In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
As for the point about the intent of the creators of the Constitution:
I still think there's an important distinction to be made between intending for a document to be permissive of change and intending for a specific change to be made. The former, we can say is part of the intent of the creators of the Constitution. The latter, I doubt we can say with regards to the 13th amendment. If that is true, then Whoopi's question to McCain is reasonable if McCain was saying that he wanted to preserve the original intent of the creators of the Constitution when it comes to figuring out what ought to be done about Roe v. Wade. She noted that, on the contrary, we need to focus on what should be done objectively, not what ought to be done according to the intent of the founding fathers.
You said, "However, I still think Whoopi's comment was at least uninformed. Even if McCain's judicial philosophy is ultimately incoherent and impracticable, it seems pretty clear that none of the problems above would indicate the possibility of reading the 13th Amendment out of the Constitution."
She was only saying that because McCain was saying we ought to stick to the original intent of the founding fathers. The 13th amendment was her example of a time at which we did not stick to their original intent and for good reason. This provided evidence for her assertion that we shouldn't base our practices on the original intent of the founders, but rather on what is objectively correct. If the discussion about intent preceding that quote is correct, I think she has a point.
First, thanks to both Lewis and Mystic. Mystic, especially, for helpfully answering my confusion about the jurisdiction of the Supreme Court. I had completely forgotten about that stuff, and am now reminded how long it's been since I've read the Constitution in its entirety. So, thanks.
As to Whoopi, I dunno. I just watched the video again and it still strikes me the same way, but I'll leave it at that. And maybe Mystic is right and I'm wrong. I dunno.
Thanks for giving me stuff to think about, guys.
Well, I think this is probably kinda a non-issue by now, but I just wanted to say that I found the exact transcript from Goldberg and McCain's little exchange. Here it is:
GOLDBERG: Sir.
McCAIN: Yes?
GOLDBERG: Can you just, and I don’t want to misinterpret what you’re saying. Did you say you wanted strict Constitutionalists? Because that, that-
McCAIN: No, I want people who interpret the Constitution of the United States the way our founding fathers envision-
GOLDBERG: Does that-
McCAIN: -for them to do.
GOLDBERG: Should I be worried about being a slave, about being returned to slavery because certain things happened in the Constitution that you had to change.
McCAIN: I, I understand your point.
I think I'll say that, to conclude this whole discussion, if I may, it looks like WS is probably right that this is too vague to tell exactly what's going on. Further, I'm going to lean towards your conclusion, Spencer, that this is probably a poorly thought out question, but I think that there is a way in which she could have plausibly meant something intelligent and important.
The founding fathers didn't envison the 13th amendment. Actually, far from abolishing slavery, the Constitution contains two references to the topic (The Enumeration Clause, which establishes that slaves are to be counted as 3/5 of a person in gauging state population, and Article 1, Section 9 which prevents Congress from prohibiting the importation of slaves) which aid in sustaining the practice. So, if McCain's claim is that he wants people in the Supreme Court who interpret the Constitution as it was envisioned by the founding fathers, then Goldberg is correct to point out that relying on the founding fathers' vision should not be seen as the optimal way in which one should proceed in these matters. As an example for her point, she offers the fact that they included slavery in their vision.
If Goldberg truly thought this point out well, and my only reason to suspect that she didn't is that the conversation was so quick (but she could just be that sharp, I suppose), then she's right on the ball if you ask me. If it was just her trying to sneak in an obviously bad issue in order to nail McCain, which is plausible as well, then she's perhaps just making some sense out of luck.
We can, however, draw from this exchange the important point that lots of people like to say that they want to do X in order to ensure that the Constitution is followed in harmony with the glorious ideologies which were held by our infallible founding fathers. Often times the founding fathers are elevated to godlike proportions, and often this is in order to get some votes out of the uber-patriotic, but less analytic individuals out there.
It's important to realize that we should be pursuing that which is objectively good, and we should not be pursuing something simply because people we like once pursued it. It's a good idea to watch for that sort of argumentation and put it back on the objective track rather than the follow-the-cool-guys track.
Finally, one of the best things about our Constitution is that it was designed by people who realized that they would likely be shown to be wrong in the future. This is reflected by the design of the amendment process. That's some good design right there.
Mystic,
I like your analysis but, without intending to be overly didactic, I would submit that it ignores HOW the drafting and amendment process of the Constitution occurred and how the "Three-fifths Compromise" came about in the first place. I think you're inferring philosophical beliefs from a mere procedural compromise intended to gain unanimous consent from the delegations. http://en.wikipedia.org/wiki/Three_Fifths_Compromise
This seems to take the passages in the Constitution to be everything that every one of them thought about slavery and its proper future in this country.
This is not to say that some of the founders weren't ideologically committed to the institution of slavery. There's really no denying that was the case. But the lacuna in the chain of thinking that concludes that the founders INTENDED TO INSTITUTIONALIZE SLAVERY AD INFINITUM is this: many of them felt, and wrote to the effect, that it was wrong and that it was only a matter of time before it was abolished.
One is left then with the impression that, for the time being, at the time of ratification many of the founders believed the sanctioning of slavery to be a necessary evil to achieve agreement. I'm not making any kind of value judgment here about the propriety of this kind of thinking, just giving an explanation as to how it's possible that something that many of them didn't really endorse or intend nevertheless found its way into the document they ultimately approved. A small sample of sentiment here: http://www.vindicatingthefounders.com/library/index.asp?document=9
I do however agree that the hagiography of our great founders goes overboard sometimes. Yes, they were great men, but they were just men and all had warts of some kind, despite their admirable belief in Enlightenment thinking.
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