McCain flip-flops on judicial activism
19 comments June 26th, 2008
John McCain SAID today that the Supreme Court was right to overturn a ban on handguns in Washington, D.C. — and I agree with him on that point (though not on every aspect of his statement).
But let’s face it: This ruling was a classic example of judicial activism, which conservatives like McCain are forever bemoaning.
Just last month, McCain had this to say:
The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it…
In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of “judicial activism.” But real activism in our country is democratic. Real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don’t seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard.
Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered “settled law,” and everything else is fair game.
OK, well then let’s examine the background of the handgun case that was decided today.
The ordinance at issue was adopted by the duly elected representatives of the people of Washington, just as similar ordinances in other locales were adopted by elected officials.
The high court had no precedent on which to rely in making its decision. Never before in the more than 200 years since the Bill of Rights was adopted has the Supreme Court said that the rights afforded by the Second Amendment apply to individuals.
Never before have any of the tens of thousands of gun-control laws in this country been overturned by the Supreme Court on Second Amendment grounds.
The folks who wanted to overturn the Washington ordinance and others like it didn’t pursue the matter in the way that McCain prescribes. They didn’t persuade the people’s elected representatives to repeal the handgun ban. No, they did what McCain said is wrong to do: They got a court to act in their favor.
Again, I don’t disagree with the overall thrust of today’s ruling. But I wish the right-wingers who are always complaining about judicial activism would finally admit that their agreement with this ruling amounts to hypocrisy.
Judicial activism is what courts do — and are supposed to do — when ruling on the constitutionality of laws and ordinances. That’s what the high court did in overturning laws against abortion, and that’s what it did today.
We can disagree with a court’s reasoning in applying the Constitution in a particular case, but let’s not be so obtuse as to say such judicial activism is always wrong regardless of the particulars.
