Obama the Justifier

Selwyn Duke
January 13, 2009
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Election reportage reached a fever pitch in 2008, and one of the hottest stories concerns a recently revealed interview Barack Obama gave to Chicago Public Radio in 2001.  In it, then Illinois state senator Obama talked about whether his desire to spread the wealth around might be better accomplished legislatively or through the courts and lamented that the latter hadn’t done enough to further this socialist goal.

While many have heard the interview, very few have identified its most troubling aspect.  It’s not that Obama’s answers were peppered with various forms of the term “redistribute,” as all politically-sentient beings already know this is what he aims to do with other people’s money.  It wasn’t that he said the Warren court wasn’t really all that “radical.”  It’s not even that he strongly implied the Constitution was flawed, as no legal document is perfect, and many thinking people would like to see the Constitution altered in some way.  No, there is something far, far more chilling, although, to many, it may seem somewhat innocuous.  It was when Obama spoke of how legal “justifications” could be found allowing the courts to order redistributive policies.  This single, solitary statement transcends one policy and reveals The One’s philosophy. 

If I said “So-and-so has his justifications” or “He just wants to justify his actions,” we all know that the italicized words don’t have a positive connotation.  Justifications are not usually synonymous with reasons – they tend to be more akin to rationalizations.

As to this, the land of the Tiananmen Square protests of 1989 has a constitution that guarantees its people many of the same rights ours does to us.  You wouldn’t know it, though, because the Chinese government, well, has its justifications.  The commissars justify the people right out of their rights.  Ergo, tank treads on the human face.

While very few want to roll over their fellow Americans with a tank (however, it was recently discovered that Obama ally Bill Ayers once said that it may be necessary to kill 25 million “capitalists” who won’t go along with the communist program), sadly, many of our countrymen are content to do same to the Constitution.

The problem here is that most citizens don’t understand what a constitution really is and what it accomplishes.  So let’s discuss The Constitution 101.

It could be said that the Constitution is the contract Americans have with one another.  What do I mean?  Well, if business partners embark upon a commercial endeavor, they will draw up a contract; its purpose is to ensure that all the partners’ rights will be respected, that those with more clout won’t be able to trample upon the weaker.

Now, under such an arrangement, would you want all concerned to abide by the contract’s terms or instead find justifications for violating them?

Of course, if such a breach were attempted, we would have recourse to the courts.  But what if the justifiers managed to install fellow justifiers in the courts, judges who would rubber-stamp their “interpretation” of the contract?  You could end up on a soup line.

This is precisely what happens when individuals who believe the Constitution is a “living document” – meaning, it can be interpreted to suit the “times” (which is a euphemism for “agenda”) – are elected, thus giving them the power to both legislate their justifications and appoint or confirm judges who will rule them constitutional.

So those who consider supporting Obama must ask themselves a question: Do I want my contract viewed as a “living” document whose protections can be justified away?  If you’re not sure, well, then, would you like to play me in poker and have living rules that I can interpret to suit the hand?  I could make a lot of money that way, as Duke would become the rulebook. 

If you don’t like this idea, why would you want a president who would appoint justices who would become the rulebook?  Remember, having living rules is tantamount to having no rules at all, just rulers.  It is to replace the rule of law with the rule of lawyers.

And Obama’s audacity with respect to subordinating rules to justifications is staggering.  Consider that in the 2001 interview he also lamented that,

“. . . the Supreme Court never ventured into the issues of the redistribution of wealth and more basic issues of political and economic justice . . . .”

No, it didn’t, senator, and for good reason.

The Constitution speaks about wealth “redistribution” and “economic justice” no more than it does of prohibiting immigration or limiting taxation to 10 percent of a person’s income.  Thus, while I may argue for the last two policies, I cannot do so based on a constitutional argument without descending into deceit.  

Obama then went further, saying that the Warren court’s failure to pursue this justification meant it wasn’t that radical.  Now, since the senator would pursue it, may we conclude that he is that radical?  I must, given that he proceeded to say,

“. . . it [the Warren court] didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”

Again, this is staggering.  If you were in front of a judge seeking justice because your business partners were violating your contract, would you want the court to enforce its terms or “break free” from them?  Freedom isn’t good when it’s the freedom of the powerful to violate your rights.

Now I must address a common complaint.  Some may ask, “OK, but why should we forever and always be constrained by a 200-year-old document?  Contracts sometimes need to be rewritten.” This is true, but the answer is that, again, it’s much as with a business contract.

If you and your business partners find that your contract doesn’t suit the times, you can get together and, in accordance with the terms of the contract, alter it.  We can do the same with the Constitution through the “amendment process,” the legal way to change the document.  It’s a thorough, multi-step process that gives the nation time to mull the proposal over, ensuring that it isn’t merely the result of a collective fit of emotionalism and that the vast majority agree before it takes effect.  It helps to guarantee that it really is change the people believe in.

 And “people” is the operative word.  Our leaders are supposed to derive their right to rule from the consent of the governed, which is why we elect representatives.  Yet, the practice of finding constitutional justifications – by politicians or judges – does violence to this principle.  Remember that our national contract reflects the will of the people, as it was created and amended by our ancestors’ duly elected representatives and is allowed to stand today by ours.  Thus, what are those constitutional “constraints” Obama seemed so dismissive of really?

They are nothing less than the voice of the people – the democratic determinations of the generations, of the living and the dead – saying “No!  The law reflects our voice, and it constrains you just as it does us.” 

And if judges don’t rule based upon our national contract, this great expression of the people’s will, on what basis do they decide?  Are they receiving divine inspiration?  Are they channeling Aristotle, Cicero, Thomas Aquinas, and Confucius?  Do they have something akin to the Oracle of Delphi?  No, they may provide pseudo-intellectual justifications, but the truth is that they are simply ruling based on their own preferences.  They then are subordinating the will of countless millions of Americans to their own, transforming us into a quasi-oligarchy of nine lawyers in black robes.  They then are not just the only Americans not constrained by law; again, they become the law.

Make no mistake, this is nothing less than a breach of the most important legal contract that has ever existed, and many of our “judges” (they don’t deserve the title) are thus guilty.  And Obama has made it clear that he casts his lot with them, as he recently said:    

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

This may sound nice and compassionate to many, but it only proves that Obama is at best ignorant of a judge’s legitimate role and at worst hostile to it.  I’ll illustrate my point.  What if it was my job to choose figure-skating judges and I said just what Obama did above?  Would such a standard be more likely to yield fair, qualified candidates – those who would render judgments based only on the rules of the sport – or those who would be prejudiced in favor of competitors who were teenage moms, “poor, or African-American, or gay, or disabled, or old”?  Obviously, appointing agenda-obsessed individuals only increases the chances that following the law will not be their number one priority.  If, however, your goal is inequality under the law, this is exactly what you should do.

This is why an appeal for judicial candidates who view the Constitution as a “living document” is not an argument, but a justification.  It is why the terms we use to describe justices with different “legal philosophies” only serve to muddy the waters.  Could you imagine speaking of “constructionist” and “pragmatic” figure-skating judges?  Is there any way you could argue for the latter – someone who viewed the rules of the sport as living – without being laughed out of the business? 

In reality, there are only two kinds of justices: Good justices and bad justices.  And this is why, while candidates will fervently assert that there should be no litmus test for Supreme Court nominees, they are wrong.  There should be a very simple one: The candidate must be willing to abide by the intent of the Constitution’s framers.  That is the job of a good justice.  It is also where an Obama choice will be found wanting.

But before we can have good Supreme Court justices, we must choose good leaders.  So I have a challenge for my undecided but open-minded countrymen.  Many on the left (and some on the right) excoriate President Bush for violating the Constitution.  And there is no doubt that most of our politicians are woefully inadequate to the task of upholding it.  Yet, if this criticism of the president is sincere, how could so many people then cast a ballot for a man who has served notice, time and again, that he has no intention of even attempting such a task?  I suppose some just have their justifications.

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