Bob Barr, the Libertarian nominee for president, speaks out on the jurisprudence on the two major presidential contenders and argues that people who will be voting for McCain because of worries about a possible left-turn of the supreme court under an Obama administration will be making a mistake.
The judiciary is becoming an important election issue. John McCain is warning conservatives that control of today’s finely balanced Supreme Court depends on his election. Unfortunately, his jurisprudence is likely to be anything but conservative.
The idea of a “living Constitution” long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing “judicial activism” and proclaiming their fidelity to “original intent.” However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired.
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.
But even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.
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.
Ok, Barr makes a common error here, as Ilya Somin and others have pointed out. The term “unitary executive” usually refers to expanded presidential power vis-a-vis the rest of the executive but not necessarily the other arms of the government. Nonetheless, there is a lot of sensible stuff in Barr’s op-ed and I recommend reading the full version.
If, like me, you are a libertarian with a preference for Obama over McCain, Barr increasingly looks like the candidate you should vote for (assuming of course you are eligible to vote — I am not!). I will expand on this point in a future post.
(Hat Tip: Reason Hit and Run)