The Candidates and the Constitution


In an interesting column over at Findlaw, law professor Vikram David Amar argues that John McCain is the big loser from this year's Supreme Court term. "Two of the biggest half dozen 5-4 rulings this year," Amar writes, "forcefully rejected his work as a Senator and, more importantly, his understanding of constitutional basics." He's referring here to Boumediene v. Bush, which recognized habeas corpus rights for prisoners held at Guanantamo Bay, something that legislation drafted by Congress and the White House did not do, and Davis v. Federal Election Commission, which struck down the "Millionaire's Amendment" to the McCain-Feingold campaign finance law, a provision that gave special privileges to candidates running against wealthy, self-funded opponents.

Given McCain's publicly expressed preference for "clean government" over "quote First Amendment rights," not to mention his contempt for "so-called, quote, Habeas Corpus suits," I'd say that Amar has got his number. What about McCain's Democratic opponent? Amar doesn't give equal time to the candidates, but Barack Obama's record is also worth considering. Despite his Harvard and U. of Chicago credentials, the Illinois Senator hasn't exactly been a beacon of constitutional light. As Jacob Sullum has noted, Obama's position on Washington, D.C.'s handgun ban has undergone a pretty dramatic metamorphosis, from his staff informing the Chicago Tribune last December that "Obama believes the D.C. handgun law is constitutional," to Obama's lame attempt last month to spin D.C. v. Heller in his favor, claiming, "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children… The Supreme Court has now endorsed that view." And as I've previously argued, Obama's position on the Commerce Clause puts him squarely in favor of Gonzales v. Raich, a terrible ruling which struck down California's medical marijuana law in favor of federal anti-drug laws with extremely dubious connection to interstate commerce.

Whole Amar column here. reason coverage of John McCain here, Barack Obama here.