What John McCain Should Have Told Whoopi

Last Friday’s appearance by John McCain on ABC’s The View has been getting lots of media attention, mostly concerning co-host Joy Behar’s grilling of the Senator over misleading or false claims in his campaign advertisements.

Even more disturbing was an exchange McCain had later in the segment with co-host Whoopi Goldberg over judicial nominations, the future of the Supreme Court and the Constitution. McCain was asked if he would nominate judges who would overturn Roe v. Wade. His response prompted Goldberg to ask again and again whether judges who strictly interpret the Constitution would bring back slavery. Here is the exchange:
SENATOR JOHN McCAIN (R-AZ): I think what we would be doing is appointing or nominating justices to the United States Supreme Court and other courts who strictly interpret the Constitution of the United States. We would not impose a litmus test on any issue because that’s not fair to the American people. But they would have to have a clear record of strict interpretation.

GOLDBERG: Can you just, and I don’t want to misinterpret what you’re saying. Did you say you wanted strict Constitutionalists? Because that, that-

McCAIN: No, I want people who interpret the Constitution of the United States the way our founding fathers envision-

GOLDBERG: Does that-

McCAIN: -for them to do.

GOLDBERG: Should I be worried about being a slave, about being returned to slavery because certain things happened in the Constitution that you had to change.

McCAIN: I, I understand your point.

GOLDBERG: Okay, okay.

McCAIN: I understand that point and I, I, [applause] thank you. That’s an excellent point.
Actually, it wasn’t an excellent point. It was a truly lousy point, and by calling it excellent, McCain demonstrated a disturbing ignorance about the Constitution.

It is true of course that the Constitution, as originally drafted, protected slavery. While never using the terms slaves or slavery, the 1789 Constitution protected the institution by giving the southern states disproportional political power, enshrining the slave trade for 20 years, and requiring the northern states to “deliver up” fugative slaves.

This was the most important (though not the only) way in which the original Constitution was flawed, which is why the document has been formally amended 27 times and further clarified through hundreds of court rulings. Slavery, of course, was wholly abolished from the Constitution in the 1860s with the Thirteenth, Fourteenth, and Fifteenth Amendments, which is why no constitutional scholar today, right, left or center, would argue that the Constitution — whether construed strictly, loosely, or just right — condones the institution.

Instead of thanking Whoopi for her comments and leaving co-host Barbara Walters to offer the helpful reassurance “us white folk will take care of you,” McCain should have told Whoopi that his judges would “strictly interpret” all the Constitution including the Thirteenth Amendment, which which holds that “neither slavery nor involuntary servitude…shall exist within the United States,” and that there would therefore be no possibility of his Supreme Court nominees sending her back into slavery.

Had McCain really known what he was talking about on Friday, he might also have acknowledged that an honest textual interpretation of the Constitution means not only embracing the 1789 document “the way our founding fathers envisioned,” but also embracing the Amendments passed over the last 200 years that have made our Constitution the document all Americans can celebrate today. By his stumble, McCain feeds into the argument that conservative “originalists” overvalue the 1789 text and undervalue the Amendments.

If Senator McCain is going to continue to talk about the Constitution during this campaign, he may want to consider cracking open a copy of the ol’ document (Wednesday is Constitution Day, which provides a good opportunity). There the answer to Whoopi’s question regarding slavery — as well as the answers to many other questions any candidate for our nation’s highest office should know — is clear as day.

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