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As the election approaches there is certainly no shortage of issues to distinguish the candidates, however one area which gets an unfortunately small amount of attention is the future President’s potential appointees to the federal courts.

Front and center to a President’s nominee selection process rests on the question of judicial philosophy. McCain has said he will appoint “strict constructionists” who would follow in the Antonin Scalia and Clarence Thomas mold. These judges attempt to interpret the Constitution in accord with its original meaning and context. The argument for this constitutional reading is that if we in fact live in a democracy only democratically elected officials can change our laws.

By contrast Obama has stated he would appoint judges like Steven Breyer and Ruth Bader Ginsberg, who can be described as adherents to the “Active Liberty” interpretation of the Constitution. Under this view Judges take it upon themselves to go beyond the original intent of the Constitution. This view point supported cases such as Roe v. Wade, and Miranda v. Arizona. The argument in favor of this review standard is that courts require the authority to override democratic rule in the areas deemed important by the Court, even though not addressed explicitly by the Constitution.

Here are links from the dueling view points, Justices Scalia and Breyer over the question of judicial philosophy

As you think about how the Constitution should be interpreted, consider the following cases:

Boumediene v. Bush, 5-4 decision addressing the War on Terror: The Court ruled that alleged terrorists have a Constitutional right of access to domestic courts. This ruling overrode the Congresses’ specific denial of domestic court access to alleged terrorists. In my own research and reading of the opinion I have not found one prior instance in this nation’s history where warring alien enemies of this nation had access to our domestic courts.

Kennedy v. Louisiana, 5-4 decision addressing the Death penalty. The Court ruled that child rape did not qualify as a crime warranting the death penalty under the “evolving standard of decency”. This opinion overrode Louisiana’s democratic decision to permit the execution of a child rapist and the history of the American death penalty which allowed State to execute far far less horrid offenses.

Gonzales v. Carhart, 5-4 decision addressing the ban of a particular partial birth abortion ban. The Court upheld a state law prohibiting a particular form of partial birth abortion. The ruling affirmed the right of state’s to democratically pass laws on the termination of late term fetal life

Kelo v. City of New London, 5-4 decision addressing the reach of Eminent Domain. In this opinion the Court ruled that the Takings Clause permitted government’s to seize homes and other forms of private property for any “public purpose” despite the 5th Amendment’s much more restrictive language.

– Ignacio

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