SmallGovTimes.com

By: News Bites | Published on 05/14/08    

In a speech on the federal judiciary last week, John McCain sounded the familiar conservative call for judges who know their place. "My nominees," he promised, "will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power." The judiciary's moral authority depends on self-restraint, said McCain, and "this authority quickly vanishes when a court presumes to make law instead of apply it."

The senator emphasized the importance of judicial modesty and deference to the elected branches of government, lamenting that "federal judges today issue rulings and opinions on policy questions that should be decided democratically." He criticized Barack Obama and Hillary Clinton for not being concerned "when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives."

But is it really the proper function of the courts to simply rubber-stamp laws passed by Congress and state legislatures? Is a law presumed constitutional merely because elected officials enacted it? "If my fellow citizens want to go to Hell," declared Justice Oliver Wendell Holmes, a staunch advocate of judicial restraint, "I will help them. It's my job."

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