Obama's constitutional philosophy (or lack thereof) [View All]

[Kurt_and_Hunter]

It is often noted that Barack Obama is an expert on constitutional law. That is better than the alternative, but it doesn't follow from that credential that he has a sound (or even benign) philosophical understanding of the constitution. Obama's credentials as a constitutional lawyer pale compared to those of Justice Antonin Scalia, for instance, and Scalia's philosophical conception of the constitution is pernicious.

Some constitutional thinkers believe the constitution really means something. Others view it primarily as a framework for argument in support of pre-existing positions and philosophies. The somewhat nihilistic second view is quite common, probably because all non-constitutional law is about making the law say what you want it to say; advocacy for a given position (the client's position) through selective omission and emphasis. So many constitutional lawyers, being lawyers, make the mistake of thinking the constitution is mere law... a field of play. A "serving suggestion." (Read the Bush briefs in Bush v. Gore for some prime nihilistic Constitutional argument.) And since politics is the "art of the possible" most politicians subscribe to that same practical view of the constitution as a basis for argumentation, rather than a coherant collection of absolute limitations.

For instance, the First Amendment says that Congress shall make no law infringing the freedom of the (printing) press. This is the single most unambiguous and easily understood phrase in the Bill of Rights. Unfortunately, if a person sees a work as sufficiently offensive or menacing, he or she often favors its suppression, and will tolerate the arbitrary legislative and/or judicial revision of the plain meaning of the constitution to accomplish that end. So he or she carves out exceptions. Leaving aside the social desirability of any particular exception, the point that must be understood is that if a right has exceptions then the government is free to redefine the right in any way it wishes. (The courts are, of course, part of the government, and have done remarkable violence to the Constitution over the years. Why don't we declare wars any more? Why was it okay to intern Americans of Japanese descent? Why is Bush President? Etc.)

This nihilist/political view reduces down to, "the constitution does not limit the government if people generally think extra-constitutional measures are desirable." And that reduces down to, "the Constitution has no power or meaning." If the Constitution must yield to majoritarian notions of "common sense" then it is not supreme, and a constitution that is not supreme is not a constitution. It's an oxymoron!

The correct approach to the Constitution is to accept its few limitations as absolute, and to then optimize social well-being within those limitations. For instance, we have to figure out how to thwart terrorists WITHIN the Constitution... it poses challenges, just as making police tell arestees they have a right to a lawyer created challenges. Our responsibility is to accept those challenges, or amend the Constitution. There is no third option.


In light of that, I was struck by a quote wherein that Senator Obama managed to get a simple Constitutional question wrong in BOTH ways--he is wrong on what the Constitution says, and (much worse) then compounds the error by offering a philosophical view of the constitution that renders the Constitution a meaningless piece of paper:

"When a student asks Obama for his views on the Second Amendment, he reminds his audience that he taught constitutional law at the University of Chicago and is thus familiar with the arguments regarding the right to bear arms. He acknowledges "a tradition of gun ownership in this country that can be respected," and says that his academic studies convinced him gun ownership "is an individual right and not just the right of a militia."

But he was not finished. "Like all rights, though, they are constrained by the needs and the rights of the community." Obama then spoke of 34 students who were killed on the streets of Chicago and called for sensible gun control to prevent senseless death. He speaks of the importance of parental involvement in education before listing the many ways in which he would expand the role of the federal government in the schools.

http://www.weeklystandard.com/Content/Public/Articles/000/000/014/463haksg.asp?pg=2

Let's take this in order...

He acknowledges "a tradition of gun ownership in this country that can be respected," This is an excellent example of Obama's "new politics", which involves verbally sugar-coating everything in the hope that momentary delusion will negate real differences. Granting legal meaning to tradition is the fundamental basis of any conservative political philosophy. (It all began with respect for the institution of Monarchy as a socially stabilizing force, as opposed to the anarchy of post-Revolutionary France.) There is much to be said for conservative philosophy, but I assume that for the duration of the Democratic primaries that Senator Obama would reject the conservative label. (Obama is strikingly in line with Andrew Sullivan's brand of conservatism as outlined in his last book, wherein Sullivan identifies valuing tradition for its own sake as an essential trait of a true conservative.) The call to respect tradition is excellent politics, but awful Constitutional thought. Blacks "traditionally" did not vote in the south because they were slaves. Then the Constitution was amended to make the slaves free citizens, with the right to vote. That quintessentially non-traditional right was ensured by the Union occupation and in places where former slaves had great numbers they elected many black leaders. That era came to be recalled as one of anarchy and the willy-nilly over-turning of the established social order... much like the French revolution. (See BIRTH OF A NATION for what became the accepted white view of the anarchy represented by a black majority in the Kentucky State legislature.) When the Union ceased its active occupation of the south, tradition reasserted itself and black people were not allowed to vote for another seventy years.

and says that his academic studies convinced him gun ownership "is an individual right and not just the right of a militia." Well, he is right that the right to bear arms is "not just the right of a militia," nor is it the right of a rock or a cloud. A militia cannot have rights. But getting to what he is trying to say... the Second Amendment is not a guarantee of an individual right. All of the Amendments in the Bill of Rights are limitations on the federal government. (After the 14th Amendment, guarantees of individual rights were "incorporated" so that they now apply to State governments as well.) The Second Amendment is a limitation on the Federal government vis-a-vis the states. The Federal government cannot disarm the States, nor strip them of their ability to protect themselves against a tyrannical federal government or against other states. This sounds crazy today, but these were live issues in the 1780s. (Note that the right to bear arms is reserved to "the people." That phrase is a complex term of art, as anyone trying to understand the 10th Amendment has discovered.) So all Federal gun statutes are unconstitutional, and always have been, because they infringe on a guaranteed STATE prerogative. A State can defend itself, if it wishes, by having an armed citizenry. Or not. Any state can outlaw all guns, or allow people to own all the guns they want. If that interpretation leads to undesirable outcomes ("Ohio: The Bazooka State!") then the Constitution must be amended to reflect historical changes in fire power.

Obama's position is classic wing-nut stuff... and here's why. If the 2nd Amendment contains an individual right, then that right was incorporated by the 14th Amendment along with all other individual Constitutional rights. If the 2nd Amendment contains an individual right then that right is absolute, and ALL gun control laws, State or federal, are facially unconstitutional. There is no such thing as "State's Rights" regarding the infringement of individual liberties, though some wing-nuts think there are. (Hence Andrew Sullivan style crack-pot ideas about gay marriage and abortion being left to the States... as if US citizens have different rights based on what State they happen to be in.)

I doubt Obama is nearly foolish enough to have discovered an individual right in the 2nd Amendment, so why does he say it? Why does he take a view that requires that all gun control laws of any kind are unconstitutional?

Because he is a Constitutional nihilist! He can assuage gun nuts with his ‘individual right’ theory, confident it’s a harmless view because he doesn’t think rights are actually rights at all. He can find an individual right in the 2nd Amendment, say it should be "respected", and then turn around and say that the fact (in his view) that the Constitution contains an individual right to guns is a mere serving suggestion! It's not a right, it's a notion. Check it out:

He then says: "Like all rights, though, they are constrained by the needs and the rights of the community." That is, of course, lunacy and a short-cut to tyranny. The concept of "rights" has no meaning whatsoever if "all rights are constrained by the needs of the community." One can define the needs of the community to abrogate any right, any time.

First, "the community" has no rights. Rights are secured AGAINST the community. Look at how Senator Obama's utterly political, intellectually null idea of the Constitution leads: You have a right to not be forced to testify against yourself... unless your exercise of that right runs counter to the "needs of the community." You have the right to free speech unless the community "needs" you to shut up. Interning the Japanese was clearly unconstitutional, but the SCOTUS decided those individual rights were trumped by the needs of the community. Extra-legal detention and torture were tacitly permitted by judicial agents because of the community "needs" vis-a-vis the war on terror. Some communities "need" to not have a mosque built in them. Other communities "need" to bar felons from voting. I suspect my neighbors think they "need" me to rake my leaves.

The community can always think of a "need" to quash any individual right, and the founders fucking KNEW THAT. That's why we have a Bill of Rights! So that the government cannot just redefine those rights whenever it seems convenient.


It is not unusual for politicians to trash the Constitution. Congress knowingly passes several facially unconstitutional laws every year. But it is unusual for DEMOCRATIC politicians to trash the constitution in the context of their somber analysis as an instructor in constitutional law! But this sort of ad hoc "I will work something out because I am so clever" seems to be Senator Obama's approach to many things.

I would not dwell on this 2nd Amendment instance if it were an isolated instance, but it seems to me to be representative of Obama's approach to everything. Observe how often his discussion of rights (abortion, establishment clause, whatever) follows this same formula. 1) I will respect the views of people who are wrong, 2) I will acknowledge the rights of people who are right, and 3) I will do whatever I think best based on the narrow psychological, political environment.