John McCain doesn't like judges or lawyers much

Commenting on Sen. Barack Obama's decision to oppose John Roberts's nomination to the Supreme Court, McCain said "Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers and law professors who think they know wisdom when they see it -- and they see it only in each other."

Well, yeah. The law is pretty complicated, thanks to legislators such as yourself, Sen. McCain. Generally the legal profession - composed of legal experts - is in the best position to evaluate judicial qualifications.  You wouldn't ask a lawyer to evaluate John McCain's skill as a fighter pilot.

I don't think young people appreciate the complexity or nuance of the law. Nor do naïve politicians, such as Sen. McCain. So let's unpack Sen. McCain's legal philosophy, as it was expressed in a May 6 speech at Wake Forest University.

Sen. McCain believes the Constitution is very clear.  This is easy to believe if you haven't spent much time thinking about the Constitution. "The framers of our Constitution had a knack for coming right to the point," McCain said. Then he went on to mention the "clear powers," "clear limits," and "clear meanings" found in the Constitution.

But is the Constitution clear? Well, let's take an example. The Due Process Clause of the Fifth Amendment is one of the most important limits on the power of the federal government. It reads "nor shall any person ... be deprived of life, liberty, or property, without due process of law." Nowhere in the Constitution did the Framers define the term "due process." 

How, then, do we know what process is due when the federal government attempts to deprive a person of life, liberty or property? Judicial interpretation, of course. And do you think there's room for debate when trying to divine the meaning of a term as general as "due process of law"? There sure is. Judges can't even agree on the proper method to use when searching for the meaning of constitutional language - they certainly don't always agree on the meaning of the Constitution itself.

Let's take another example of constitutional "clarity," this one posed by Sen. McCain himself. In Kelo v. City of New London, the Supreme Court considered the scope of a local government's eminent domain power. New London seized the home of a resident to make room for a development plan that the city claimed would bring jobs to the area.

"There is hardly a clearer principle in all the Constitution than the right of private property," said McCain when discussing Kelo. "There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may be taken only for 'public use.'"

Is there a clear standard? The Takings Clause of the Fifth Amendment reads "nor shall private property be taken for public use, without just compensation." But there's a hitch, one that Sen. McCain brushed over (or, more likely, was not aware of). The Fifth Amendment, on its own, does not limit the power of state or local governments. By itself, the Fifth Amendment applies only to the federal government. So then why is it relevant to the issue presented in Kelo?

That pesky Due Process Clause, that's why.  The Fourteenth Amendment, enacted soon after the Civil War, does apply to states. And the Fourteenth Amendment contains a due process clause that is identical to the Fifth Amendment's clause. So in 1897, the Supreme Court decided that the process due in eminent domain seizures undertaken by state or local governments includes the requirements of the Takings Clause of the Fifth Amendment. 

Is that "very clear"? Try convoluted, confusing, complicated - certainly not clear.

And there's another hiccup in McCain's analysis. McCain said the Takings Clause provides that "private property may be taken only for 'public use.'" But that's not what the plain language of the clause actually says.  Interpreted strictly, the clause imposes no limits on takings made for private use. It merely says that the federal government cannot seize property for public use without paying just compensation.

Of course, this interpretation doesn't make much sense.  Isn't a government more justified in seizing private property if that property will be put to public use, rather than private use? Judges think so, and they largely ignore the grammatical strangeness of the Takings Clause.

What's my point?  In law, nothing is clear.  Legal interpretation and argument include lots of, well, judging. These examples demonstrate that when "interpreting" or "applying" law, judges must make choices. So when John McCain says that the Constitution is clear, his argument is either intellectually dishonest, intellectually deficient or simply uninformed. You can make strong arguments that, for example, laws prohibiting abortion do not violate the Due Process Clauses. But you cannot honestly contend that it is clear that an outright ban on abortion does not deprive women of liberty without due process of law.  Such a contention is merely a strategy deployed to avoid hard, and sometimes uncomfortable, legal analysis.

Katie Couric recently asked Gov. Sarah Palin why she disagreed with Roe v. Wade, and Palin's bumbling response demonstrated this laziness. Whereas her Democratic opponent, Joe Biden, mentioned the Due Process Clause of the Fourteenth Amendment in explaining why he agreed with the decision, Palin merely invoked her own pro-life beliefs and said that abortion is more appropriately regulated by states. She did not invoke the pristine clarity of the U.S. Constitution - she talked about her own values. 

The McCain/Palin approach toward law, then, is just lazy. Ask about law in the abstract, and the Constitution is clear. But ask about a specific legal problem, and the law is irrelevant.

Mike Devlin is a second-year student at Duke University School of Law. He graduated from New York University in 2007.