Obama’s EmPATHETIC Constitutionalism

If media reports are to be believed, Senators Barack Obama and Joe Biden are the most knowledgeable constitutional scholars since James Madison. In a September article for The New Republic, Jeffery Rosen wrote, “The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It’s the first time that professors of constitutional law have occupied both slots on a ticket.” In May, The New York Times’ Neil A. Lewis described Obama as a lawyer who has “had a long and deep interest in the courts and the law.” In the article, Lewis quoted Obama’s former colleague at the University of Chicago Law School, Professor Cass R. Sunstein, as saying, “The first thing to know is that he knows this stuff inside and out, and he has the credentials to be easily appointed to the court himself.” During an interview with Senator Obama after a McCain speech on the courts at Wake Forest University, CNN host Wolf Blitzer said that Obama knew “a lot about the Supreme Court.”

Despite all of this praise, very little has been discussed about Obama’s radical constitutional ideology. Despite his claims that he is “not somebody who believes in a bunch of judicial lawmaking,” a quick look at the former Harvard Law Review editor’s public statements reveals a partisan ideolgoue with limited understanding or appreciation for the Constitution and the Supreme Court in American history. In fact, Obama’s statements are so radical and incoherent that they call into question whether or not Obama has ever actually read the Constitution. All of this was on display in Obama’s speech on July 17, 2007, before the Planned Parenthood Action Fund.

Of the Constitution, Obama said: “I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.” Obama continued, “what you’ve got to look at is — what is in the justice’s heart… And 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’ll be selecting my judges. Alright?”

Obama’s opinion aside, a “cramped and narrow” original reading of the Constitution’s has historically been the only justifiable and intellectually honest means of constitutional interpretation. As Justice Joseph Story wrote in his epic A Familiar Exposition of the Constitution of the United States, first published in 1840, the Constitution may only be “interpreted, as all other solemn instruments are, by endeavoring to ascertain the true sense and meaning of all the terms; and we are neither to narrow them, nor to enlarge them, by straining them from their just and natural import, for the purpose of adding to, or diminishing its powers, or bending them to any favorite theory, or dogma of party.”

However, the importance of “endeavoring to ascertain the true sense and meaning” of the Constitution is not just Story’s personal belief; it is the solemn duty of all members of the Court. In fact, each new member of the Court must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Supreme Court Justice under the Constitution and laws of the United States. So help me God.” The oath to “do equal right to the poor and the rich” and to “impartially discharge and perform all the duties” of a Justice would necessarily preclude Obama’s insistence to show “empathy” beyond the law towards teenage mothers, the poor, African-Americans, homosexuals, the handicapped, and the elderly.

In essence, a President Obama would select candidates for the Supreme Court with the stated goal that they disregard and violate their oath of office before they ever read a legal brief or heard an oral argument. In fact, it was Chief Justice John Roberts’ and Justice Samuel Alito’s adherence to the principle of administering “justice without respect for persons” and “faithfully and impartially” discharging the duties of the Court that persuaded Obama to vote against their confirmation. In fact, it was Chief Justice Roberts’ emphasis on the vital importance of the impartial nature of judging that most upset Obama. During his confirmation, Roberts said, “Judges are like umpires. Umpires don’t make the rules; they apply them. I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” Senator Obama has said that he voted against Judge Roberts’ nomination because he “saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death.” Not only does that statement demonstrate Obama’s avowed preference for activist judges who create law based on their own whims and prejudices, but also a mediocre mind unable to understand similes.

In addition to influencing his decisions to vote against the confirmations of Justices Roberts and Alito, Obama has used his emPATHETIC constitutionalism to judge other members of the Court. Senator Obama has described Justice Ruth Bader Ginsberg as “a voice clear in reasoning and passionate in dissent”; said that he would not have nominated Justice Clarence Thomas because “I don’t think that he was exp–…a strong enough jurist or legal thinker at the time, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution.”; called Justices David Souter and Stephen Bryer “sensible”; and said of Justice Scalia: “I don’t think there’s any doubt about his intellectual brilliance” but “he and I just disagree.”

While both Obama and Biden reject originalism as a means of constitutional interpretation, they do have one area of significant disagreement: Roe. Once considered a shibboleth of liberalism, Roe has recently experienced some honest criticism from within the pro-choice community as a poor example of constitutional law and reasoning. In fact, according to Mark Giternsterin, Biden’s chief counsel as chairman of the Judiciary Committee during the Bork nomination, Biden said, “Look, I don’t think Roe is great constitutional law.” In fact, even some of Obama’s chief legal advisers question Roe. For example, Cass Sunsterin, the man who said that Obama possesses “the credentials to be easily appointed to the court himself,” recently wrote in the Boston Globe that the Court’s decision in Roe was “far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents.” Obama, meanwhile, by his own account, “put Roe at the center of my lesson plan on reproductive freedom when I taught constitutional law. Not simply as a case about privacy but as part of the broader struggle for women’s equality.” This rigid devotion to a case that is now defended at best by an appeal to stare decisis demonstrates that Obama looks at the Court’s as a tool for liberal public policy, rather than an instrument of legal interpretation and protection.

As in his reverence for Roe, Obama has regularly taken far-left positions on the Constitution and Supreme Court decisions. For example, in response to the Court’s decision, Parents Involved in Community Schools v. Seattle School District, the case that ended Seattle’s system of “student assignment plans that rely on race to determine which schools certain children may attend,” which the Court said were “directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate,” Senator Obama said that the “Supreme Court ruling has placed a serious obstacle in the way of achieving the vision of America … where we see racially integrated education” and was a “blow dealt to integration.” Senator Obama called the Court’s decision in Boumediene v. Bush, which granted heretofore unknown rights to suspected terrorists in American custody, ”an important step toward re-establishing our credibility as a nation committed to the rule of law.” In response to Gonzales v. Carhart, the 2007 Supreme Court decision that upheld the constitutionality of a federal ban on the “partial-birth abortion” procedure, Obama said that the decision was “baffling” and that it was “part of a concerted effort to roll back the hard-won rights of American women.” In addition, Obama said that the Court’s decision in Ledbetter v. Goodyear was a “blow dealt to equal pay.”

As the election has neared, however, Obama has frequently made public statements in support of the decisions of the Court’s more conservative wing. For example, in the 2008 case of Kennedy v. Louisiana that overturned the Louisiana law allowing the death penalty for child rapists, Obama said “I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” thus siding with the four originalist members of the Court. Again, in D.C. v. Heller, the case that overturned Washington, D.C.’s strict handgun laws, Senator Obama agreed (after he publicly supported D.C.’s position) with the opinion of Justice Scalia, saying, “I have always believed that the Second Amendment protects the rights of individuals to bear arms.”

These examples of Obama’s picking and choosing what method of constitutional interpretation he prefers, based on his preference for politically-popular outcomes, demonstrates the impossibility of his emPATHETIC constitutional ideology as a consistent means of deciding cases. If the Constitution is to have any meaning, it must be interpreted as it was written, with an emphasis on the original meaning and context of every word, phrase, and clause. It is impossible, and intellectually dishonest, to pick and choose when the clear and obvious meaning of the Constitution will be respected and when the dictates of “evolving standards of decency” will prevail over the written Constitution.