Defending the McConstitution

In an attempt to gain some media attention on the day of two large Democratic primaries, Sen. John McCain delivered a speech May 6 at Wake Forest University in Winston-Salem, NC. After pontificating on the art of compensating for poor grades and inexplicably showcasing former Sen. and GOP primary failure Fred Thompson of Tenn., he moved on to talk about his respect for the Constitution.

All the powers of the American presidency must serve the Constitution, and thereby protect the people and their liberties. For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions. They are not just guidelines, to be observed when it's convenient and loosely interpreted when it isn't. The clear powers defined by our Constitution, and the clear limits of power, lose nothing of their relevance with time, because the dangers they guard against are found in every time.

To the naïve, it would seem with such an introduction McCain is preparing for a major break with the Bush administration. The Bush Department of Justice has logged seven years of extraordinary disrespect for the checks and balances of the Constitution. The senator seems to be laying the groundwork for a precipitous shift from the Bush approach, with its warrantless wiretaps and suspenison of habeas corpus. Sadly, after all that he decided that Tessio should stay on with the family but Clemenza needed to die. The crux of our constitutional crisis, the asserted, is "the common and systematic abuse of our federal courts." That's right, folks. The malfunction in Washington is all the fault of the courts. The big threat to our democracy is unaccountable judges who don't care about public opinion.

This is the same man who in February voted to extend revisions to the Foreign Intelligence Surveillance Act which give law enforcement the ability to spy on Americans without warrants. FISA, as it was originally passed 30 years ago, provided law enforcement the ability to conduct wiretaps of phone conversations between a phone in America and one in a foreign country and seek retroactive court permission within 72 hours. This was a compromise between the Fourth Amendment protection against unreasonable searches and seizures and the necessities of intelligence work. In order to preserve the constitutional protection, the Supreme Court's precedent is that, given probable cause, a federal agent should seek a warrant if at all possible. This is a fundamental protection installed in the Constitution to prevent overextension of executive power.

In 2005, McCain took a principled stand against torture by the U.S. armed forces, attaching Amendment 1977 to the Detainee Treatment Act of 2005. The amendment prohibited military interrogators from using "cruel, inhumane, or degrading" treatment to extract information from prisoners, including those at Guantanamo Bay. McCain had long cultivated a reputation as a strong opponent of torture, often appealing to his own brutal treatment as a prisoner of war in Vietnam. This position was subject to a reversal when the Military Commissions Act of 2006 came to a vote. This Act allowed the government to deny habeas corpus to U.S. citizens accused of terrorism and gave the CIA permission to use techniques barred to the armed services under the DTA.

At first, it may seem that the use of torture is not a constitutional issue; indeed some conservatives, such as Antonin Scalia, argue that the Constitution does not prohibit cruel interrogative techniques because interrogation is not a form of punishment. That's a specious distinction which relies on a pedantic and overly literal reading of the Eighth Amendment. American jurisprudence does not apply the same strict reading to other amendments, notably I, II, and IV. To suggest that the men who wrote the Eighth Amendment and the legislatures that ratified it wished merely to prevent gruesome treatment after conviction is facially ridiculous. If anything, a prisoner who has not yet enjoyed due process of law has more protection under the Constitution than a convict.

All of this says nothing about the suspension of habeas corpus, which is expressly prohibited by Article 1, Section 9 of the Constitution. Even if we were to concede that the Constitution has nothing to say about torture, it is obvious that the MCA is an expansion of the executive's law enforcement powers beyond those envisioned in the Constitution. Far from the overweening judiciary that McCain and other conservatives complain about, the real constitutional crisis in this country is President Bush's belief in the unitary executive.

McCain takes offense at the lengthy opinion in an obscure case from 2005, Deck v. Missouri, ridiculing the "penumbra," a legal concept used to protect rights not expressly named in the Constitution and a favorite target of those who style themselves strict constructionists. The minute extension of additional protections to capital defendants in the Missouri case is apparently more troubling to McCain than the signing statements that Bush has routinely used to ignore the law. McCain disapproves of the practice, but not as much as he disapproves of the Court's deciding what is acceptable treatment of a prisoner under the Constitution.

After running through a litany of issues on which he disagreed with the rulings of the courts, McCain accused Democrats in Congress of voting against judicial appointees based on personal disagreements rather than qualifications. But why should judicial philosophy not be a qualification for judicial office? The complaints against John Roberts and Samuel Alito, Bush's two (successful) Supreme Court nominations, were grounded at least in part on their view of the proper role of the courts. The Democrats who voted against their confirmation appealed to their actions as federal judges. Roberts, for instance, repeatedly voted to narrow the protections given to various minorities by the courts. This is an abdication of the courts' duty, upholding and encouraging the expansions of executive power by the Bush administration.

Inexplicably, McCain pointed out, with righteous indignity, that he voted to approve Justices Stephen Breyer and Ruth Bader Ginsburg when they were appointed by President Bill Clinton. He did not let his differences with them determine his vote, he said. Why he would approve of two justices he now criticizes as subverting the Constitution and showing contempt for democracy is unclear. Both served as federal judges prior to their appointments; their understanding of the role of the judiciary should have been obvious. And yet it seems that before he needed to shore up support with the Republican Party's base, he was not concerned about judicial activism.

McCain's entire speech reeks of hypocrisy. He plainly advocates for judges that adhere to the party line of the GOP. Roberts and Alito support broader federal power on issues important to conservatives and a narrower reading on liberal concerns (like equal protection). The next president will appoint activists amenable to his political views. Republican talking points notwithstanding, almost all federal judges are now pragmatists. Conservatives are not any more consistent in their obedience to the Constitution's original intent than liberals.