Thursday, May 15, 2008
Why John McCain Needs The Living Constitution
J. Rebekka Bonner
I have read the speech and all I can say is a more unpresidential document would be hard to produce.
The sitting Justice he swipes at is Stevens, hardly a flaming radical in constitutional interpretation. Stevens himself said he voted in Kelo the way he did because his reading of the law required it, not because he wanted to bow to popular sentiment.
McCain also takes a very, very, ill-considered swipe at the 9th Circuit, which has become a kick-ball of sorts for the legal retrenchment community.
Again he raises the golem of an out-of-control Article III judiciary. I hope he realizes that the vast preponderance of that same judiciary were nominated Republican presidents. Republican presidents whose company he wants to join.
You might take a look at Larry Solum's comments on the McCain matter, both on his blog and in his article "Semantic Originalism." They should be of interest.
This is all rather silly, as we know for a fact that McCain isn't going to nominate strict constructionists to the Supreme court: His signature cause, campaign censorship, is starkly unconstitutional by any but living constitution approach. It's absurd to believe that he's going to deliberately nominate justices to strike down his own policy initiatives.
Good points. But the 4th Circuit which McCain mentions in his speech just recently denied a First Amendment-based challenge to the NC election law on nonpartisan judicial contest funding:(North Carolina Right to Life v. Leake 07-1454 to distinguish it from the other same-named case 07-1438.) In other words, they upheld something I take you consider facially unconstitutional: state intervention on election spending.
The 4th is no hotbed of wild-eyed liberals! So maybe McCain is on to something...
But I doubt it.
I think federal regulation of election spending is facially unconstitutional, due to the lack of any enumerated powers basis, AND the First amendment. At the state level there's no enumerated powers issue, and the regulation can be constitutional, though I think it often isn't.
I don't see how federal election spending regulations are per se unconstitutional on Article I grounds, Brett. Certainly, for instance, limitations on money transfers that cross state lines and limitations on money for advertisements disseminated across state lines are within the commerce clause, aren't they?
Personally, I think the contribution/expenditure line in Buckley makes eminent sense (as long as the contribution limits are set high enough) and I think McCain-Feingold's restrictions on coordinated soft money are generally permissible under the First Amendment, while the ad bans are generally unconstitutional.
Dilan, it's true that Congress has the authority to regulate interstate commerce, but I hold a narrower view of what constitutes "commerce", and a wider view of the First amendment's protections, than you. Campaign 'reform' is a pretty clear example of regulating the money in order to regulate the speech. It's the speech that's being regulated,the money is just a handle to get at it. And Congress is specifically forbidden to regulate speech. I'd apply that bar regardless of how Congress attempts to dress up the effort.
You might, at the federal level, justify regulation of direct donations to candidates from people in different states. I can't see justifying anything that's not direct, or has no interstate element.
On a policy rather than constitutional level, campaign regulation strikes me as a conflict of interest of starkly enormous proportions. Giving incumbent pols the chance to regulate what's said and done in an effort to unseat them? Might as well give a klepto the keys to the bank, or a pyromaniac a flame thrower. Fighting the perception of the possibility of corruption is just a pretext, they're busy securing their seats by doing all they can to handicap challengers.
It's a conflict of interest so big, so irresistible, that there's nothing to be gained by the venture that's worth the certain abuses.
Congress has the enumerated power to regulate the "manner" of federal elections and if "interstate commerce" doesn't include the "regulation" (and money makes it irregular in various respects) of national airwaves and such, it is pretty narrow indeed.
This also factors in the regulation of union and corporate speech. Policy and First Amendment concerns are separate, as might be some regulation of local speech, particularly state/local offices.
Voluntary funding regimes also would be separate.
The continuation of the "natural born" citizen requirement for presidents illustrates the great difficulty of amending the constitution. I think that there has long been a consensus that this requirement should be abolished, yet the requirement is still with us.
Barack Obama, who was born in Hawaii, missed by just a few months being born in a US territory instead of a state.
>>>>> In the infamous Dred Scott case, the Court held that this act merely referred to a method of naturalization. <<<<<<
The Dred Scott decision was a joke. For example, it ruled that the Constitution's clause giving Congress jurisdiction over the territories was intended to apply only to territories that existed when the Constitution was first adopted. The Dred Scott decision was a phony piece of originalism and it should have done a lot to discredit originalism.
"Congress has the enumerated power to regulate the "manner" of federal elections"
And campaign 'reform' does not regulate the manner of federal elections, it regulates speech concerning federal elections.
The "manner" of those elections are things like poll location, ballot design, the mechanics of voting.
Hell, even if the commerce clause and "time place and manner" clause COULD be plausibly interpreted as extending to Congress the power to regulate speech and printed matter concerning elections, the First Amendment would have amended that power away.
With respect to comments from Mark, Michael and others on this short article, here's a link to the full-text research paper underlying this short article that may serve to answer your questions. This link will take you to a short overview & to a link for downloading the paper itself:
In the paper, I go into the details of the Founders' English common-law heritage under the "strict constructionist" approach, relevant U.S. statutes for the "living constitution" approach, in case you're curious. The paper also discusses previous presidential candidates who ran into the same problem as McCain is now & discusses the ambiguous status of Native Americans born on reservations under "strict constructionist" approaches, etc. Pretty interesting topic.
J. Rebekka Bonner (author)
A birther going by the name of Mikhail Godkin has written a fallacious screed in which he, in my opinion, dishonestly distorts what you've written here as well as making completely baseless accusations regarding your motives for writing this article and your job within the Obama administration. I have posted a comment detailing how he has defamed yourself and others here. His "study" is included in the article on this page as well as literally hundreds of comments which expose his reasoning and understanding as fatally flawed. If you read my comment, I hope you will correct me if I misrepresented you or your work in any way.
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