Filed under: Author - ACG,Politics | Tags: Abortion, John McCain, Law, Republican National Convention
Two nights ago, John McCain, breaking with a convention steeped in partisan & far-right rhetoric, made only one overt mention of a culture war issue. His choice, the typical Limbaugh talking point on “activist judges” ruining our constitutional balance, was nonetheless telling. If McCain’s proposal sounds moderate enough – in his words (@ 22:01), he seeks “judges who dispense justice impartially and don’t legislate from the bench” – careful observers of the right will note that conservative ire against “activist judges” is really a blanket expression of anger at a culture that has, with the help of the judiciary, moved to the left on positions of social import, from abortion to women’s equal pay to gay rights (all of which McCain opposes).
According to the typical conservative narrative, the people ought to have the right to, acting as a majority, do pretty much whatever they damn well please, especially by stigmatizing unpopular social groups and erecting textual & physical monuments to the majority religion from sea to shining sea. While this position suffers from significant and glaring problems (What Would John Stuart Mill Do?), now’s not the time for a seminar on the federal judiciary and democracy’s need for a countermajoritarian branch. Perhaps some other time.
No, what really gets me is the conservative willingness to bemoan the activist lib’rul judiciary while conjuring (especially in the past years) a shockingly “activist” conservative judiciary, one that appears to decide cases based only on politics, without respect for established precedent. If you want to talk about the original activist judge, look to Chief Justice John Roberts, and don’t let his boyish good looks fool you. But, again, I digress.
The Republican Party Platform underscores the GOP’s particular love/hate relationship with the judiciary, and lackadaisical approach to the Constitution, by proposing first a constitutional amendment protecting infant life, and then, curiously, in a plank that’s been around since at least 2000, “legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.”
Huh?
Aside from the odd ramifications of such legislation – end employment discrimination against the unborn!!! – it would almost surely be unconstitutional. Since City of Boerne v. Flores the Court, in an opinion endorsed by Justice Rehnquist, has made clear that the Fourteenth Amendment can neither be contracted nor expanded by federal legislation. And obviously an interpretation that attributes to the Fourteenth Amendment’s framers an intention of protecting “embryos” as “persons” or as a discrete & insular minority would strain credulity, as does the idea that a mainstream party would propose such a blatantly illegal course of action.
The proposal that the Constitution be amended to protect embryos is scarcely less ludicrous. I mean, seriously: is there anything at this point the conservative movement doesn’t want to amend? Mike Huckabee may not like it, but you have to swear allegiance to the Constitution as it stands: not as you dream it to be.
While David Plouffe may not be right to say that this Republican Platform is the most conservative yet, it certainly may be the most ludicrous.
