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.

Palin a Book Banner? McCain a Faulty Vetter?

My last entry in this group focuses on Sarah Palin and the issue of censorship in libraries. At the outset, I have to tell you that I am on the local chapter board of the New York Civil Liberties Union, and the chair of the Bill of Rights Day Essay contest run by the chapter. Last year, one of our essay topics was on the issue of banned and challenged books.

Now, with that as prologue, let’s look at the situation with Sarah Palin and the Wasilla library. First, we see Time magazine relying on an interview with John Stein, who was Sarah Palin’s predecessor as mayor of Wasilla, and who she beat twice in mayoral elections (perhaps not the best primary source for this, BTW):

Mayor Palin: A Rough Record, Time Magazine, Sept. 2, 2008

Stein [n.b. John Stein, former Wasilla, AK mayor beaten twice by Ms. Palin] says that as mayor, Palin continued to inject religious beliefs into her policy at times. "She asked the library how she could go about banning books," he says, because some voters thought they had inappropriate language in them. "The librarian was aghast." That woman, Mary Ellen Baker, couldn't be reached for comment, but news reports from the time show that Palin had threatened to fire Baker for not giving "full support" to the mayor.

I saw a variation on the story in the New York Times (September 3, 2008):

Palin’s Start in Alaska: Not Politics as Usual

Shortly after becoming mayor, former city officials and Wasilla residents said, Ms. Palin approached the town librarian about the possibility of banning some books, though she never followed through and it was unclear which books or passages were in question.

Ann Kilkenny, a Democrat who said she attended every City Council meeting in Ms. Palin’s first year in office, said Ms. Palin brought up the idea of banning some books at one meeting. "They were somehow morally or socially objectionable to her," Ms. Kilkenny said.

The librarian, Mary Ellen Emmons, pledged to "resist all efforts at censorship," Ms. Kilkenny recalled. Ms. Palin fired Ms. Emmons shortly after taking office but changed course after residents made a strong show of support. Ms. Emmons, who left her job and Wasilla a couple of years later, declined to comment for this article.

In 1996, Ms. Palin suggested to the local paper, The Frontiersman, that the conversations about banning books were "rhetorical."

Ms. Emmons was not the only employee to leave.

I doubt we'll see a completely unbiased source for this story - but at least we have corroboration from multiple quotes, including the following contemporaneous 1996 quote from the librarian (or so I believe).

I searched the web and found numerous variations on the same general censorship story – and a reference to that elusive article in the Mat-Su Valley Frontiersman from December 1996 – I believe that the following might be a reference to and partial quotation of the original source, which is not on-line:

[N.B. Mary Ellen Emmons is a Past President of the Alaska Library Association, and was the Wasilla Public Library director. I believe she is now known as Mary Ellen Baker.]

Palin Asked City Librarian About Censoring Books, Insisted It Was ‘Rhetorical.’

In 1996, according to the Frontiersman, Wasilla’s library director Mary Ellen Emmons said Palin asked her outright if she could live with censorship of library books. Emmons said, "This is different than a normal book-selection procedure or a book-challenge policy...She was asking me how I would deal with her saying a book can’t be in the library." Palin said in response, "Many issues were discussed, both rhetorical and realistic in nature." [Frontiersman, 12/18/96]

I don’t know if that is an accurate quote from the article, or even if it’s pure propaganda. What I do know is that this is an issue that needs to be addressed, and that the country should hear more from Mary Ellen Baker (formerly known as Mary Ellen Emmons), the brave librarian who stood up to the specter of unjust censorship (or so it would appear from all the reports).

The issue about book challenging or banning also adds a question as to the adequacy of the "vetting" done by the McCain camp prior to springing the choice of Sarah Palin onto the public. Is she another mistake like Thomas Eagleton, Dan Quayle or George W. Bush?

From the Huffington Post:

McCain Camp Didn't Search Palin's Hometown Paper Archives

8/31/08
Sam Stein

On Saturday, a Democrat tasked with opposition research contacted the Huffington Post with this piece of information: as of this weekend, the McCain campaign had not gone through old newspaper articles from the Valley Frontiersman, Palin's hometown newspaper.

How does he know? The paper's (massive) archives are not online. And when he went to research past content, he was told he was the first to inquire.

"No one else had requested access before," said the source. "It's unbelievable. We were the only people to do that, which means the McCain camp didn't."

The Frontiersman did not immediately confirm the revelation.

And there is no indication from the Democratic source that anything nefarious or problematic will be found in the archives. But officials with the paper did not recall inquiries by the McCain campaign.

"I cannot confirm that information at this time," said publisher Kari Sleight. "I am not aware of the McCain campaign researching our archives, but archive requests do not usually go through me."

If true, the failure of the Arizona Republican to access the newspaper clippings becomes another in a growing list of revelations that calls into question just how and why he made his decision to choose Palin. A rudimentary clip search, such as this, is presidential politics 101 as campaigns not only look for the majority of background information on any high-level appointee, but also try to prepare themselves from future attacks.

Well, the source here on the background check situation is the Huffington Post, which even I would consider to be somewhat "liberal media." Though most of the news media in the United States is not at all "liberal" – that’s a canard. The news media in the United States has developed into something much more chillingly right wing than it ever has been – so-called "liberal" media bends over backward to give space to "opposing views" and hems and haws about everything else. Conservative media makes no real attempt at fairness. Fox News, the New York Post and Washington Times are ultra right-wing. Even the New York Times is to the right of center these days – which explains why it went out of its way to libel me in a news article in November 2006, violating its own stylebook in the process.

There are two bottom lines to the Palin library censorship scandal – first, the issue has to be fully and fairly explored, as it goes to Sarah Palin’s core qualifications and fitness for office; and second, the question of whether John McCain’s people flubbed their background check – if true, this amplifies the sort of hair-trigger fighter-pilot knee-jerk decision-making that is great for shooting down enemy planes, but not a great qualification for the "leader of the free world" who gets to carry that nuclear football, or rather, has it nearby at all times. That is pretty much the same sort of irritating quickdraw judgmentalism lost McCain the Republican nomination in 2000, and perhaps should be yet another reason to deny him the presidency in 2008.

Then again, I’ve already professed my choice is Barack Obama. And gentle reader, I’m admitting that I am not necessarily being any more "fair and balanced" than the FOX News channel. (Actually, I *am* fairer and better balanced than that Bill O’Reilly and his "All Spin Zone" and the other denizens of FOX.