Senator McCain's Constitutional Error?

The Tenth Amendment to the United States Constitution reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In the most recent (the third and last) presidential debate for the 2008 election, I found Senator McCain's apparent ignorance of the last phrase in the reservation to be the reason for his answer to the question on women's reproductive rights and the appointment of Supreme Court justices:

SCHIEFFER: But you don't want Roe v. Wade to be overturned?

MCCAIN: I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. [Senator McCain apparently doesn't know what a "federalist" is.] And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test. Now, let me say that there was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion.

We got together seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative judges."

I voted for Justice Breyer [Ed. note: I think he meant Justice Alito] and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about.

Senator Obama voted against Justice Breyer [Ed. note: I think once again that he meant Justice Alito - at least he's consistent!] and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.

I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

Senator McCain's ignorance of the meaning of the term "federalist" is too readily apparent (it means someone who supports a strong central government, not the "state's rights" view that the senator has maintained for a long time - perhaps Senator McCain should call himself an anti-federalist - but his friend or rather, Governor Sarah Palin's friend) Joe Sixpack and his economic adviser Joe the Plumber probably don't know what a federalist is, either - it just sounds comfortingly "pro-American.")

He also doesn's understand the term "litmus test" (He clearly wants one - his idea of "qualifications" is a litmus test - but doesn't want to admit it because he doesn't like the term.) He doesn't even understand the idea of "strict adherence to the Constitution" is a "litmus test" or he might not be so critical of Roe v. Wade, especially in light of that last clause in the tenth amendment.

Senator McCain should reflect on what the tenth amendment really means. The Bill of Rights, including the tenth amendment, was added to the Constitution to protect individual liberties. The tenth amendmenr makes it clear that powers not apportioned to the federal government are apportioned to the states - or to "the people."

I believe the intent of the founding fathers with that last phrase was to implicate that even the states have limits on what they can legislate - and those limits are where their laws interfere with the individual civil and constitutional rights of the people themselves. Of course, there is a bit of disagreement among constitutional scholars about the exact meaning of the phrase - but Senator McCain is no constitutional scholar.

When it comes to women's constitutionally protected reproductive rights, Senator McCain's so-called "states rights" (not federalist) standpoint doesn't wash because it interferes with the individual rights of the people.

Senator McCain stands for the proposition that, constitutionally, the idea of equal marriage rights regardless of sexual orientation or gender identity, is an idea that states should legislate, and the federal government shouldn't interfere, at least if the federal Defense Against Marriage Act is not held to be unconstitutional.

Senator McCain may not agree with the Loving v. Virginia decision - a 1967 decision by the United States Supreme Court hat held that there are limits on the states in issues relating to marriage rights - and the right to regulate marriages does not include the right to prohibit marriages between members of different races. Again, the rights of the people, guaranteed by the federal Consitution, trump, or rather limit, the states' rights to discriminate, even in an area like marriage traditionally seen as "reserved to the states."

Senator McCain, like his friend President Bush, and also doesn't seem to understand the concept of judicial activism - it isn't judges legislating from the bench. It's judges standing up to the tyranny of the majority. It's judges protecting individual rights and liberties guaranteed by the Constitution from encroachment by either the federal government or the states. Judges who don't recognize that role have no place on the United States Supreme Court.

This last debate is just one more reason for people to be voting for Senator Obama on November 4th.