"Unfortunately, his jurisprudence is likely to be anything but conservative"

Damon W. Root | July 18, 2008

In yesterday's Wall Street Journal, Bob Barr took John McCain to task for his lousy judicial philosophy, arguing that conservatives shouldn't get too excited at the prospects of a McCain-appointed Supreme Court. For one, McCain doesn't think that the First Amendment protects all forms of political speech, which is only a problem, I suppose, if you hold the quaint opinion that the Constitution means what it says. Then there's McCain's sweeping view of presidential power:

In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress.

Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

Interestingly, Barr suggests that cats and dogs won't start living together under an Obama Court:

Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, and criticizing the recent decision overturning the death penalty for a child rapist. With the three members most likely to leave the Supreme Court in the near future occupying the more liberal side of the bench, the next appointments probably won't much change the Court's balance.

Finally, after some throat clearing about the risk of "judge-made rights," Barr makes a great point about the judiciary's duty to check the other branches:

However, the Constitution sometimes requires decisions or action by judges—"judicial activism," if you will—to ensure the country's fundamental law is followed. Thus, for example, if government improperly restricts free speech—think the McCain-Feingold law's ban on issue ads—the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.

Whole thing here.

Comments

Elemenope|7.18.08 @ 12:48PM|#

Barr is sounding better and better. But he's not there yet.

|7.18.08 @ 12:48PM|#

Make no doubt about it, the sooner we get Dictator Bush out of Office, the better off we will all BE!

JT
www.FireMe.To/udi

|7.18.08 @ 12:53PM|#

if you hold the quaint opinion that the Constitution means what it says

Neu posts about the realities of judicial interpretation in 3...2...1...

Episiarch|7.18.08 @ 12:56PM|#

Barr is going light on Obama because he wants conservatives to not worry about voting for him and possibly costing McCain the presidency. "See, it's not so dangerous if Obama wins, so voting for me is OK".

He is working damn hard, and well, to peel people off of McCain. And I think it's going to work if he can get enough exposure.

Ironic|7.18.08 @ 12:57PM|#

Babbar sounds better than McCain or Obama but I do not believe in voting for the lesser of three evils.

|7.18.08 @ 12:58PM|#

It amuses me greatly to see the vast wingnuttery lament the possibility of a McCain presidency while trying to tie Obama to a few social malcontents.

Ironic|7.18.08 @ 12:59PM|#

Sorry, I meant Babar the elephant. Not the French Rapper

Ironic|7.18.08 @ 1:02PM|#

It amuses me to see the Obama camp blame conservatives for trying to say he is Muslim when it was the HIllary camp that tried to make that case.

|7.18.08 @ 1:09PM|#

I do believe -- legal eagles correct me -- that there is a constant mixing up of two doctrines.

Unitary executive refers to the belief that the President is sort of the dictator of the EXECUTIVE BRANCH, and the final decider of decisions therein.

Another doctrine, something like the plenary power of the executive or of the government, holds that in cases where national sovereignty is at issue, the government's warmaker gets to suspend normal constitutional restraints.


I think not making that distinction enabled Addington to evade solid questioning a few days back.

|7.18.08 @ 1:09PM|#

The irony of the vast wingnuttery joining forces with the Clinton camp is finely tuned amusement.

|7.18.08 @ 1:22PM|#

What is the difference between a "unitary executive" and a dictator?

Other Matt|7.18.08 @ 1:24PM|#

He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms,

Subject to "reasonable restrictions" of course, you know, like "I think it's entirely reasonable that you don't have any" Except, of course, when he's actually caught making a definitive statement, in which case deny the hell that it was definitive and start casting about smoke grenades.

Elemenope|7.18.08 @ 1:24PM|#

Barr is going light on Obama because he wants conservatives to not worry about voting for him and possibly costing McCain the presidency. "See, it's not so dangerous if Obama wins, so voting for me is OK".

He is working damn hard, and well, to peel people off of McCain. And I think it's going to work if he can get enough exposure.

It's an extremely smart strategy, especially since the number of people he could theoretically peel off of Obama's voters could probably be counted on one man's fingers. (I'm one of the ten!)

djyrn|7.18.08 @ 1:25PM|#

Is there a libertarian jurisprudence?

What conservatives get excited about, seems to be less and less aligned with what libertarians get excited about.

svf|7.18.08 @ 1:31PM|#

the number of people he could theoretically peel off of Obama's voters could probably be counted on one man's fingers.

worth a shot though, especially what with the new FISA-lovin, Afghanistan War-escalatin', Tax money for churches-increasin' version of Obama who's running right now.

Barr is wise to "steal" all the votes he can get from McBama, but even more so from the 50% non-voting bloc that truly has the power to affect the election....

|7.18.08 @ 1:32PM|#

Elemenope-

Isn't Barr much closer to "there" than either Obama or the war hero? Given your ideal vision of what life should be, doesn't Barr easily beat the other two? I ask this from your perspective-I know that you fear, in theory, the type of anarcho-individualist paradise that I would want, but I also know that you don't want any more of the wrong doors being knocked down on botched drug raids with death resulting to an innocent single mom or widower.

Ironic|7.18.08 @ 1:37PM|#

"What conservatives get excited about, seems to be less and less aligned with what libertarians get excited about."

When there is a Democrat in the White House conservatives tend to get excited about many of the same things as libertarians. When there is a Republican in the White House (left) liberals tend to get exited about many of the same things as libertarians.

Paul|7.18.08 @ 1:54PM|#

McCain doesn't think that the First Amendment protects all forms of political speech,

Funny, neither do nine former ACLU leaders.

Elemenope|7.18.08 @ 1:58PM|#

Pro-Life, libertymike. Pro-life. Which is just a cutesy way of saying "I possess my body, and women can go fuck themselves."

I consider it a bedrock principle of liberty to have complete self-possession of one's body. I know many other libs don't see it that way. Fuck 'em, they're wrong. It's what comes from getting religion juice all over your political philosophy; it stains.

Elemenope|7.18.08 @ 1:59PM|#

When there is a Democrat in the White House conservatives tend to get excited about many of the same things as libertarians. When there is a Republican in the White House (left) liberals tend to get exited about many of the same things as libertarians.

That's not irony, Ms. Morrisette.

KipEsquire|7.18.08 @ 2:03PM|#

768 words on "John McCain and judicial appointments" and nowhere, not once, do the words "Roe," "Wade" or abortion appear in Barr's piece.

Also: "Judge-made rights are wrong because there is no constitutional warrant behind them." Oh really? Whose party's nominee is this again?

|7.18.08 @ 2:15PM|#

However, the Constitution sometimes requires decisions or action by judges-"judicial activism," if you will

I won't. I do not accept that definition of the phrase. I'd prefer no one use it at all, since people keep muddying the waters about what it means.

Which is just a cutesy way of saying "I possess my body, and women can go fuck themselves."

I consider it a bedrock principle of liberty to have complete self-possession of one's body. I know many other libs don't see it that way. Fuck 'em, they're wrong. It's what comes from getting religion juice all over your political philosophy; it stains.

Sigh. And what prevents someone from saying that's a cutesy way of saying "I possess my body, and fetuses can go fuck themselves.?" I consider it a bedrock principle of liberty to not be killed by someone who thinks that they own you or are responsible for you or deserve your respect for what they've done for you, whether they are a father, a husband, or a mother.

Exactly why do you consider it necessary for opposition to abortion to be grounded in religion? Certainly there's a correlation when it comes to actual beliefs of people, but it seems to be to be no more philosophically necessary than it is to be religious in order to be a vegetarian or animal rights activist.

|7.18.08 @ 2:16PM|#

Also: "Judge-made rights are wrong because there is no constitutional warrant behind them." Oh really? Whose party's nominee is this again?

Suppose that a judge finds a right to "a livable wage" or "well-funded public schools" or any one of a host of positive rights not in the Constitution. I suppose that Libertarians might be annoyed.

|7.18.08 @ 2:19PM|#

Imagine waking up with a doctor telling you - "I'm sorry sir, the state is seizing your body for nine months. Little Baby Johnny needs your rare blood type/transfusion to live. Abandoning him now would be murder".

That is the wingnut argument. They really do hate liberty.

Paul|7.18.08 @ 2:22PM|#

When there is a Republican in the White House (left) liberals tend to get exited about many of the same things as libertarians.

I'm not sure that's true. The excitement is getting more and more modulated. Democrats did not 'rediscover' their love of the 1st amendment during the Bush administration. They have a very tepid view of the fourth and fifth amendment. The second amendment? Forget about it.

To the liberal, freedom concerns none of these things. Apart from freedom of expression, the liberal's idea of freedom is mainly about privacy. It is about a place for whoopee, and for not being held to account or morally judged afterward. In many ways his idea of freedom is the 15-year-old's: Stay out of my room. Show me respect. And hey, when's dinner?

The liberal says, "I'm for choice." The libertarian wants to know which one: School choice? Social Security choice? Drug choice? Union-membership choice? Alas, the liberal is "pro-choice" only to avoid being labeled "pro-abortion." He is not pro-choice. He is pro-privacy. (And legally the right of abortion rests on an argument for marital privacy.)

http://libertyunbound.com/archive/2006_12/ramsey-conservatives.html

|7.18.08 @ 2:29PM|#

"a livable wage" or "well-funded public schools"

Put both to a vote. I dare you to find out how "scary" each is.

And if you claim either is "Constitutional" - I defy you to prove it.

djyrn|7.18.08 @ 2:37PM|#

I think there is some truth to the idea that, libertarianism is the manna of the minority, but not entirely.

I think it much more persuasive to claim "states rights" as the manna of the minority. State's rights advocates don't, after all, make any promise to guarantee liberty.

|7.18.08 @ 3:29PM|#

Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts.

That is, at best, a very misleading way to say what the "unitary executive" doctrine is about.

matthew hogan @ 1:09 pm is on the right track.

Its been my understanding that the unitary executive doctrine means that, in exercising the powers that are delegated to him under the Constititution, the President may not be constrained by Congress or the courts.

That's kind of an important qualifier. Its a defensible theory, although I'd have to give it a lot more thought than I have before I'd sign off on it.

One corollary would be a "unitary judiciary" doctrine, in which the federal judiciary cannot be constrained by the President or Congress when exercising its Constitutional powers.

I guess it depends on whether you think checks and balances are achieved through separation of powers (which seems to be what "unitary" means), or by having each branch free to meddle in the affairs of the others.

|7.18.08 @ 3:31PM|#

"Suppose that a judge finds a right to "a livable wage" or "well-funded public schools" or any one of a host of positive rights not in the Constitution. I suppose that Libertarians might be annoyed."

Nobody should be given the right to take rights from others. A right to a livable wage infringes on the contract between the employer and the employee.

|7.18.08 @ 3:42PM|#

"I consider it a bedrock principle of liberty to not be killed by someone who thinks that they own you"

In effect, the woman is owned by the fetus if she is forced to bring it to term against her will.

hotsauce|7.18.08 @ 4:05PM|#

If a competent woman engages in consenual sex, she's assuming the risk that she might get pregnant. If she does, the "my body, my choice" argument falls apart. What branch of libertarians believe people shouldn't be responsible for their decisions?

The calculus changes if the woman is not competent or the sex is not consenual. In those cases, libertarians should support a woman's right to choose.

There are probably other qualifiers and ways you can take this argument. But this is what came to me off the top of my head.

|7.18.08 @ 4:11PM|#

Its been my understanding that the unitary executive doctrine means that, in exercising the powers that are delegated to him under the Constititution, the President may not be constrained by Congress or the courts.

Not quite. The Unitary Executive theory states that the President is the absolute, sole power within the executive branch. So, for example, if Congress passes a law requiring that the Director of FEMA have this and that qualification, the President can issue a signing statement saying "I'm the Chief Executive, I can base my decisions about what the Executive Branch does on whatever I want, and I'll hire cousin's old frat buddy if I want."

hotsauce|7.18.08 @ 4:11PM|#

I just thought of an analogy (though it's not perfect, and I probably need to tweak it, it sheds more light on the issue).

You take out a loan to purchase a house. The bank secures payment with a lien (mortgage) on the house. Now you are morally obligated to make payments to the banks. When you have made all your payments, the bank releases its lien.

In other words (assuming competence and voluntary acts), you make a decision X with direct consequence Y. You are morally responsible for Y.

Episiarch|7.18.08 @ 4:12PM|#

I think what we need is a 300+ post thread on abortion inside a thread about a Barr column.

Elemenope|7.18.08 @ 4:20PM|#

I think what we need is a 300+ post thread on abortion inside a thread about a Barr column.

Yay!

If a competent woman engages in consensual sex, she's assuming the risk that she might get pregnant. If she does, the "my body, my choice" argument falls apart. What branch of libertarians believe people shouldn't be responsible for their decisions?

The calculus changes if the woman is not competent or the sex is not consenual. In those cases, libertarians should support a woman's right to choose.

We can mitigate consequences after the fact, right? We should have medicines for STDs, right? Because your argument makes pregnancy analogous to STDs. And in a way, it is.

If mitigation after the fact for consequences for wrong or foolish acts wasn't possible, we'd all be far more miserable (if not dead) than we are now.

A fetus is a very special kind of vegetable, which has the potential to become a human. A parasitic blood-sucking vegetable. But no matter what a vegetable may want to be when it grows up, so long as its continued survival depends on the largesse and succor of a real non-vegetable human woman, it does not have the intrinsic right to demand that support.

|7.18.08 @ 4:25PM|#

I think what we need is a 300+ post thread on abortion inside a thread about a Barr column.


We should also discuss Ron Paul, evolution vs intelligent design, and Rick Santorum's crying daughter. What the hell; it's Friday.

|7.18.08 @ 5:07PM|#

The Unitary Executive theory states that the President is the absolute, sole power within the executive branch.

Maybe so. Cass Sunstein has a different definition:

The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law.

and I bet he knows more about it than either of us. Nice short discussion here.

|7.18.08 @ 6:45PM|#

It's an extremely smart strategy, especially since the number of people he could theoretically peel off of Obama's voters could probably be counted on one man's fingers. (I'm one of the ten!)

If he can peel you off, LMNOP, he can peel off about a million other voters who are in striking distance of you on the Nolan chart. (I'd say that is somewhere around the 70-90% social and 20-40% economic range).

|7.18.08 @ 6:46PM|#

Damn tags! Preview!

Paul|7.18.08 @ 6:55PM|#

Because your argument makes pregnancy analogous to STDs. And in a way, it is.

She caught teh pregnancy!

Paul|7.18.08 @ 6:57PM|#

A fetus is a very special kind of vegetable, which has the potential to become a human.

lmnop, as an abortion supporter, I'm not sure I've ever been comfortable with this description. At 8.3 months gestation, is the fetus a 'potential' human?

Elemenope|7.18.08 @ 8:50PM|#

(I'd say that is somewhere around the 70-90% social and 20-40% economic range).

Closer to 65-70% economic. It sounds lower around here because I'm rabble-rousing on a libertarian message board; can't start many fights by agreeing! When it comes to cashing out beliefs as policy I'm about as free-market, anti-tax, local control as they come (before you creep into Anarcho-capitalist territory).

lmnop, as an abortion supporter, I'm not sure I've ever been comfortable with this description. At 8.3 months gestation, is the fetus a 'potential' human?

No, at 8.3 months it is much closer to a brain-damaged violinist. Besides, at 8.3 months it is viable outside the womb and so technically is not totally dependent on mom. Hence the rules change.

Personally, if you want to get really squeamish, I find it difficult to impute humanity to anyone who can't make moral choices...and so pretty much anyone under five-years-old is still basically a "potential human". What changes from before birth to after is not person-hood of the entity in question but rather the requirement of a constant nourishment and blood supply from another person's body.

Mark|7.18.08 @ 10:47PM|#

I find it difficult to impute humanity to anyone who can't make moral choices

Really? I have no problem doing that.

hotsauce|7.19.08 @ 12:58AM|#

LMNOP,

I start from the assumption that we're dealing with another human being (or person if you prefer), not a fetus or any other characterization of the fact. It's a human being in the embryonic stage of development. With that in mind, your STD analogy is inapt because you are not free to mitigate a mistake when the mistake is another person. The crux of the argument between us, then, is whether we're dealing with a human being. I think, biologically, the answer is clear.

Elemenope|7.19.08 @ 2:00AM|#

I think, biologically, the answer is clear.

If that's the case, then a human in a persistent vegetative state is also a 'person'. Which I think is fairly ridiculous, or if you like, "far from clear".

All definitions of 'human' and 'person' are fuzzy around the edges. It doesn't take all that much or particularly creative thought to come up with real-world cases that violate one or another and yet are intuitively human, or come up with technically inbound cases that are intuitively 'not human'. It's Wittgenstein's revenge.

The crux of the argument between us, then, is whether we're dealing with a human being.

Truer words were never said. The whole argument comes down to a definition that can never be pinned down for all cases. Is this entity a human being? Good luck. I do know for fairly sure (except in the odd case of vegetative or comatose pregnancies) that a pregnant mother *is* a human person.

Eric Dondero|7.19.08 @ 6:17AM|#

"When there is a Democrat in the White House conservatives tend to get excited about many of the same things as libertarians. When there is a Republican in the White House (left) liberals tend to get exited about many of the same things as libertarians"

This applies only to leftwing libertarians, and plain ole' leftwingers who think they're libertarians, but call themselves that, just because they think it sounds cool.

Real libertarians get excited when Republicans win the White House and Congress.

|7.19.08 @ 11:35AM|#

I think what we need is a 300+ post thread on abortion inside a thread about a Barr column.

Didn't you get the memo? Gay marriage is the new abortion.