PrintOctober 2, 2010
A Clear Danger: Obama, a 'Living Constitution,' and 'Positive Rights'
I think it's safe to say that President Obama is not exactly fond of the United States Constitution as written. That statement is based on Mr. Obama's own words and his choice of nominees to the federal bench.
Mr. Obama the activist-turned-politician has always been shrewd about hiding his far-left philosophy from the general public, whether by voting "present" or by speaking in abstract language. Of course, Obama, like most people, cannot completely hide his worldview. Thankfully, we have record of a few of his unguarded moments from which his radical views have escaped.
On January 18, 2001, then-state senator Barack Obama appeared on WBEZ-FM out of Chicago to discuss the federal courts and civil rights. During the interview, Mr. Obama found himself engaged in a subject that stirs up his leftwing passions. Below are some of his bombshell comments (emphasis added):
The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and [sic] Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf.
That straightforward excerpt provides a clear window into the constitutional philosophy of Barack Hussein Obama, Jr. As radical as "people tried to characterize" the Warren Court, Mr. Obama hints that the Constitution may be interpreted even more radically: in a way which would give the federal government power to tell the people what the feds (and states) must do on their behalf.
We're not talking about the Constitution's enumerated functions of the federal government; we're talking about reading into the Constitution a list of positive rights which satisfy leftist notions of "political and economic justice."
Mr. Obama correctly (and painfully) refers to the Constitution as a "charter of negative liberties," as "interpreted."
Lost on the left, however, is the fact that the Bill of Rights was enacted to protect the states from central control. In spite of history and context, the U.S. Supreme Court has long since turned the amendments passed to protect the states against the states. The Warren Court ran wild in that abuse, telling the states and their localities what they couldn't do -- by overturning timeless speech and religious traditions of the people and effectively nationalizing political correctness.
The only "negative liberties" in the Constitution which legally apply to the states are the "Civil War Amendments" (the 13th, 14th, and 15th). Yet we will see below that the dream of the left is for the 14th Amendment to be interpreted in a way to allow for "positive Constitutional rights" that the feds must provide across the board. Once that door is opened, the "Constitution" would essentially render the entire country one big welfare state (see South Africa's Constitution, e.g., which mandates that the central government provide "adequate housing" and "sufficient food and water" for its dependents).
The federal judiciary has already robbed the individual localities across the country of their Judeo-Christian heritage, but that isn't enough for the president. Mr. Obama believes he can "break free" from the additional "constraints" placed in the Constitution by the founders. Toward that end, Mr. Obama's nominees to the federal judiciary share his leftist worldview. From his "wise Latina" and "gay rumor" appointments to the Supreme Court, to his legion of federal appellate and district court nominees, the common denominator is the idea of appointing high-ranking judges who see the Constitution as a "living document."
In President Obama's words from The Audacity of Hope, the Constitution "is not a static but rather a living document, and must be read in the context of an ever-changing world."
So far, the Senate has confirmed 41 of Obama's nominees, leaving 104 federal judgeships open. Presently, a battle over five of Obama's nominees known as the "fringe five" is being fought by Republicans on the Senate Judiciary Committee. Connie Hair writes that these "candidates ... have once been returned to the President as unacceptable. Each of these controversial nominees was passed out of committee but are so controversial that President Obama and Democrat leaders have avoided discussing them in public."
Certainly, the "fringe five" symbolize Mr. Obama's judicial philosophy, and yet any one of his high-ranking nominees, if scratched, would bleed a leftist worldview. Of all the president's radicals, let's focus on just one of the fringe nominees, Goodwin Liu, because his writings mirror exactly what Obama was getting to in his WBEZ-FM interview.
Goodwin Liu, a law professor at U.C. Berkeley's Boalt Hall, has no experience as a judge, but is nevertheless up for a seat on the Ninth Circuit Court of Appeals.
In his article titled, "Education, Equality, and National Citizenship," Liu argues, "the Fourteenth Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation." Liu argues that the guarantee of citizenship in the 14th does more than confer legal status, due process, and equal protection under law to the former slaves -- "it obligates the national government to secure the full membership, effective participation, and equal dignity of all citizens in the national community." That's code for the feds must provide health care, child care, job training, and other "rights."
The key words, of course, are "authorizes" and "obligates Congress." To Mr. Obama, Liu is nothing less than a constitutional genius for having found previously indiscernible meaning in the Constitution. Such a "break" from constitutional "constraints" would take the federal government to the next level, enabling it to pronounce positive rights and wield unlimited power over the states and the people.
In his co-authored book, Keeping Faith with the Constitution, Liu, in Obamian fashion, posits a new method of interpretation: constitutional fidelity. "Fidelity" has a nice ring to it, but unfortunately, "what we mean by fidelity," clarifies Liu, "is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation."
In other words, Liu is a "living Constitution" theorist who, like Obama, uses conservative-sounding words to support his radical positions. A Constitution that is interpreted by a few robe-wearing elitists "in a way that adapts its principles" is effectively no Constitution at all.
After many decades of "living Constitution" interpretation, the people have already lost much of their Constitution to leftist judges. And now, the elitist establishment is positioning itself for its next break from the constraints.
The various schools of constitutional interpretation break down into one of two groups: the first tries to uphold the original context, meaning, intent, and purpose of the text, while the second group tries to break free from the original constraints placed on the federal government.
In order to find approval from the federal judiciary in extending the federal government's control over people's lives, e.g., in mandating individual health insurance, Mr. Obama anxiously needs judges from the second group.
Mr. Obama is a constitutional deconstructionist on steroids, and the damage he will wreak in four years of judicial appointments should not be underestimated.
Monte Kuligowski is an attorney whose work has been published by several law journals.
