Federal Judiciary

McCain, Romney, and the Massachusetts Constitution of 1780

By AndrewHyman

Governor Romney and Senator McCain have new statements up at the Federalist Society website. Here's a piece of McCain's statement (emphasis added):

My judicial appointees will understand that the Federal government was intended to have limited scope, and that federal courts must respect the proper role of local and state governments. The second principle is Separation of Powers. My judicial appointees will understand that it is not their role to usurp the rightful functions and powers of the co-equal political branches. I will look for candidates who respect the lawmaking powers of Congress, and the powers of the President.

I like that he's talking about "appointees" here, rather than merely talking about "nominees." It really doesn't matter if McCain nominates someone like Bork. Reagan nominated Bork. Big deal. The key is to hang in there and insist on getting an appointee who is solid, because, as McCain says, "A President should have confidence in the judicial philosophy of those he is appointing to the bench." (Of course, this should not be construed as advice to Obama or Clinton.) Anyway, here's a snippet from Romney's statement at the Federalist Society website:

I believe a judge?s most solemn obligation is to the "rule of law," a phraseology of which I am particularly fond since it comes from the original Massachusetts constitution of 1780.

Actually, the phraseology in the original Massachusetts constitution of 1780 was slightly different (emphasis added):

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.

There is more than one sitting U.S. Supreme Court justice who believes that the judiciary should exercise an unreviewable legislative power, and who, on at least one occasion, has mocked those who disagree.

Hat Tip: Jonathan Adler at the Volokh Conspiracy.

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Full post as published by ConfirmThem on February 04, 2008 (boomark / email).