Posted by
On the Right on Tuesday, May 20, 2008 10:37:36 PM
In a recent On The Left article, columnist Ruth Marcus assails as
"cartoonish" John McCain's criticism of overreaching federal judges...
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Most of the drafters of the Constitution and Bill of Rights were
experienced legal practitioners. Even some of the non-attorneys — such
as James Madison — had studied law extensively. Contrary to common
myth, most of the clauses they wrote, including several sometimes
misleadingly labeled "elastic" or "expansive," were composed with great
precision.
To understand this, one first must learn something of the law of the
time. Too many judges and law professors have jumped to conclusions
about constitutional meaning without the necessary investigation.
A more egregious example involves the constitutional term "due
process of law." The Supreme Court has interpreted this phrase in
expansive ways that have led it to strike down scores of democratically
enacted state and federal laws. The most notorious was Roe v. Wade,
which invalidated centuries of abortion law.
Yet "due process of law" was not intended to be an expansive term at
all. As originally understood, the phrase meant only that when
government started a proceeding against a citizen, it had to proceed in
accordance with pre-existing law, and (in some cases) by grand jury
indictment.
Thus, decisions using the Constitution's Due Process Clauses to
strike down substantive laws are indefensible. When McCain criticizes
this sort of judicial decision making, he is again very much on target.