Obama, The Living Constitution, and the Socialization of America

Flopping Aces ^ | 06-20-08 | Mataharley

[Starman417]

Henry Mark Holzer’s thought provoking article at FrontPage Mag today - Obama’s Supreme Court - gives us a preview of Obama's judicial appointees’ litmus tests. (Holzer is a libertarian Constitutional lawyer and Professor Emeritus at Brooklyn Law School)

There are some serious concerns if the fate of the federal judiciary, let alone the Supreme Court, falls into Obama's hands (especially with a compliant Senate). Let's take a look at the words of Obama himself:

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meisters, “Planned Parenthood.” In the words of NBC reporter Carrie Dean, Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”

There are two camps of SCOTUS critics… those that consider themselves originalists, and others who subscribe to what always seems a catch phrase, a “Living Constitution”. Holzer (and most conservatives) fall into the former. Obama, without doubt, falls into the latter category.

In a 2007 Planned Parenthood speech, Obama proudly touted:

“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.”

Statements like this are a stake thru the heart of original constructionists. But I confess, I never considered, nor fully understood, the concept of a Living Constitution…or a document, which "evolves in response to social forces and political events." (Herman Belz: A Living Constitution or Fundamental Law?)

Originalists believe that the text of the Constitution is binding on the SCOTUS. Needless to say, believe limitations of that strict interpretation is reality, and our lives are fraught with ugly surprises... ala our recent Boumediene v Bush SCOTUS opinion.

Back in 2005, Jack M. Balkin (Knight Professor of Constitutional Law and the First Amendment at Yale Law School) wrote a column for Slate that really got the brain cells a’jumping. In his commentary - Alive and Kicking: Why no one truly believes in a dead Constitution - he raises the theory that all of us today are Living Constitutionalists… albeit selective in our application. While he spends a great deal of the article supporting that is, in his opinion, what the Framers intended, the more interesting part to me was how his theory is actively practiced right under our noses… and, for the most part, with our silent consent.

Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination.

Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

He cites this morphed, unconscious duality of SCOTUS justices by using examples of the two most well known court originalists, Scalia and Thomas. Specifically, Scalia’s concurrence in the medical marijuana case of Raicht v Ashcroft, and Thomas’ arguments for 1st Amendment rights protections “far broader in scope than the framers would have dreamed of. “

It goes without saying that the majority of conservatives have no beefs with civil rights, or even the federal agencies that exist, which are theoretically illegal under a pure originalist view. And as a Constitutional scholar, Balkin certainly recognizes that constraining justices is integral. But he differentiates between the lower courts – constrained strictly by precedent – and the SCOTUS, whom he says is constrained and dictated to by ”professional legal culture and constitutional structure.”

And in this vein, he continues with a startling and irrefutable revelation:

[Don Corleone]

A “Living Constitution” is No Constitution at all!!!

[em2vn]

Aw yes, Obama, communist light!

[the anti-liberal]

Between O and McC we've got nothin':

Bower said he'd liked McCain's answer on judges, in which he "pointed out that he supported Bill Clinton with both Ginsberg and Breyer."

[doc1019]

Yep, throw it out and invent something new every year (pretty much what we are doing with the courts configured as they are). ;-(

[JimSEA]

I never considered, nor fully understood, the concept of a Living Constitution…or a document, which "evolves in response to social forces and political events." (Herman Belz: A Living Constitution or Fundamental Law?)

Living part time in Thailand for the last several years, I understand completely the idea of a "living constitution" as that is what the Thais have, de facto. You see, every few years, whatever group of politicians currently in power, rewrites the Thai constitution to fit their desires and to keep them perpetually in power. Thank god it hasn't worked yet but they are just now trying the exercise again.

Does anyone here not think Obama and company would not seek permanent power based on a 'friendly" constitution.

[Jeff Head]

Obama is an abject marxist. When a marxist says that the US Constitution is "living" and should be adjusted for the times, what he means to do is kill it.

THE GREAT SEAL OF OBAMANATION



THE AUDACITY OF TRUTH ABOUT BARACK HUSSEIN OBAMA

[WorkingClassFilth]

Here's the deal:

1. We all, already know what the stakes in this election are.

2. We almost all will vote, like Bill Buckley, for the “rightward most, viable candidate.”

3. We are sick and tired of being beaten by Pubbie leadership to carry their banners, literature, candidates and pay their bills.

4. We all are aware that our country may be extinguished in this election cycle.

5. Having done all that has ever been asked of us, we regret, with exhaustion and despair, that we have very little left to give.

6. We all look to our leadership, at this time of crisis, to provide real leadership and inspiration.

7. Failing that, we look to God and our Constitution for direction - sometimes this means voting our consciences and not Party line purity.

8. Historic patriots and saints will not condemn us for our weary duty and our government's betrayal of reason and faith.

9. Just leadership will stand, or fail by their actions between now and November. Given their records, we stand ready to act as patriots - not Republicans.

10. Our nation’s fate is in the hands of Republican leadership - nobody else.

By then end of 2008, the blame for America's demise or the credit for her renaissance will be clear...

[Sender]

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Republican Leadership is working hard for you, the American People. That's why today we reintroduced the Assault Weapons Bill. That's why we just now decided we should have an energy policy.

Barack Obama wants to become the next President of the United States, and go on a fiscal spending spree like a Republican sailor. We can't let that happen.

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[BenLurkin]

When someone tells you that the Constitution is a “living document” what they really mean is that it is dead.

[Travis McGee]

If the SCOTUS goes badly wrong on Heller, they may learn what the Constitution truly means.

[Captainpaintball]

Those who claim the Constitution is ‘living’ do so because they want to KILL it.

[WorkingClassFilth]

Excellent! This should be spread all over...oh wait, the Republicans are already doing that...my bad...never mind.