Glenn Greenwald
May 8, 2008

John McCain yesterday delivered a speech in which he hailed the inspiring constitutional principles of Government on which our country was founded, including the central goal of avoiding excessive, unlimited power in any one branch, secured by checks and balances from the other two branches:

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution. . . .

The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn’t always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

Sadly, though, McCain lamented that "there is one great exception in our day" to these principles. Surely "the exception" to which McCain refers must be the fact that we’ve lived for the last eight years under a President who literally has claimed powers greater than those possessed by the British King; whose underlings have promulgated radical and un-American theories literally vesting him with the power to rule outside of the law, who has exploited a political and media culture devoid of "suspicion of power" when exercised by the White House, and who has acted with no meaningful constraints or checks from Congress and virtually none from the judiciary? No, actually, that isn’t the "exception" to which McCain was referring at all. Instead:

[It] is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people.

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