McCain Gets It

John McCain reassured conservatives (and anyone else who doesn't want to be killed by a terrorist) that he rejects the U.S. Supreme Court's decision that enemy combatants can assert the constitutional rights of U.S. citizens. McCain called the 5-4 decision "one of the worst" decisions in our country's history.

McCain noted that the Court's opinion reminds us of the importance of a president selecting judges who interpret the law rather than legislate from the bench. Justice Anthony Kennedy went beyond usurping Congress's right to make legislation; Kennedy amended the Constitution itself by judicial fiat.

I've been reading David McCullough's John Adams recently and was struck by how little respect Kennedy showed for the Framer's conception of government. Adams and most other Framers understood our government to derive its authority from the consent of the governed. How on earth an enemy combatant, captured in another country and imprisoned beyond our borders, can be understood to have consented to our form of government -- so to take advantage of the rights it affords -- makes no sense.

Kennedy, moreover, has played a bait and switch with Congress, by encouraging Congress to pass the very laws that he then turned around and struck down.

Justice Antonin Scalia, in dissent, is doubtless right. The Court's decision makes us more vulnerable to terrorist attack. People will die as a result, and not just Americans.

Perhaps the most macabre aspect of the majority opinion is the perverse incentives it gives our military when fighting jihaadists, to either kill or release enemy combatants. Our military can hardly risk taking an enemy combatant prisoner, because to do so would give the terrorist a tactical advantage in destroying America by demanding his newly-found right to view our national security data. So Kennedy unwittingly has encouraged our military to take no prisoners.

The Supreme Court opinion serves to remind conservative voters that regardless of their lack of enthusiasm for McCain, any justice whom he would nominate would be better than a Barrack Obama nominee. Obama, after all, might try to put Hillary Clinton on the Court just to keep her from running against him in 2012.