The Short Version
Barack Obama will avoid appointing Supreme Court justices who believe in the letter of the Constitution. He prefers justices who will give it a more expansive interpretation, giving government more powers. Obama believes that rights have to be in the Constitution for you to have that right. (He couldn’t be more wrong.)
The Long Version
Part of an NBC TV news interview with Barack Obama aired on the nightly news On October 30th. Once again, Obama demonstrated that he doesn’t understand the Constitution. The right to “privacy” was brought up. (In Democrat-talk, “privacy” means the right to an abortion.) While admitting that the right to privacy is not specifically enumerated in the Constitution, he believes that it’s still in there
The interviewer, Brian Williams, knowing that Obama supports abortion rights, asked Obama how he would go about ensuring that any Justices he appointed to the Supreme Court would not turn out to be “surprises” as was Justice Brennan to Preseident Eisenhower and Justice Souter was to President George H.W. Bush (the first President Bush). In effect, Brian Williams asked: Without using a “litmus test,” how to you ensure that any justices you appoint will uphold abortion rights?
Obama answered thusly: “Right. Well, look. I think that you, what you can ask a judge is about their judicial philosophy. Um, and as somebody who taught constitutional law for ten years and who actually knows a lot of potential candidates for Supreme Court on the right as well as on the left, ’cause I’ve taught with them or interacted with them in some way, uh, I can tell you that, uh, how a justice approaches their job, uh, how they describe the task of interpreting the Constitution, I think can tell you a lot. Uh, and so my criteria, for example, would be, if a justice tells me that they only believe in the strict letter of the Constitution, uh, that means that they probably don’t mean, uh, believe in a right to privacy that may not be perfectly enumerated in the Constitution but, you know, that I think is there. I mean, the right to marry who you please isn’t in the Constitution. But I think all of us assume that if a state, uh, decided to pass a law saying: ‘Brian, you can’t marry the woman you love,’ that you’d think that was unconstitutional. Well, where does that come from?”
“I think it comes from a right to privacy, uh, that may not be listed in the Constitution but is implied by the structure of the Constitution, so I can have that conversation with a judge. Now, uh, [stammers], a conservative who was listening to me right then says, ‘See,’ you know, he wants to allow the court to legislate. Now, 99% of cases, the Constitution is actually gonna be clear. Ninety-nine percent of the cases, a statute or congressional intent is gonna be clear.“
“But there’s gonna be one percent, less than one percent of real, hard cases — Second Amendment last term is a great example — where the language of the Second Amendment is not perfectly clear. I believe that the Second Amendment is actually an individual right, I think that’s the better interpretation. You can make the other argument. Uh, and so, I can have those kinds of discussions with a justice without getting to the particulars of, uh, is Roe versus Wade, as currently outlined, exactly what you believe or do you agree that the D.C. gun law, uh, should have been overturned, and I think that Senator McCain, if he ends up being the nominee could have those same conversations as well.“
Oh, wow. There is so much about the Constitution that Barack Obama — constitutional scholar though he may be — does not understand. The first is that rights do not come from the Constitution.
In The Beginning
In the beginning, before the Constitution, the states and the people had all the rights. The Constitution — created by the states — did just two things:
- It created the federal government (what I shall refer to as FedGov) and
- It set forth the rules for running FedGov.
That’s it. The Constitution is just a set of rules for running FedGov. Articles 1 through 3 set forth the rules for the legislative, executive and judicial branches, respectively. Now, the states, in making these rules, delegated certain of their powers to FedGov. States could no longer coin money, for example, or impose import/export duties on goods imported from or exported to other states. Other powers were retained by the states — NOT delegated to FedGov. Any state powers not specifically delegated to FedGov were kept by the states.
The particular powers delegated to FedGov (to the legislative branch) are listed in Article 1, Section 8 and are limited. Depending on how you count, it may be 18-20 powers enumerated in just 430 words. FedGov’s powers are limited; they are listed right in the Constitution. So where do “rights” and particularly “Constitutional rights” come from?
“Constitutional rights” should really be called “constitutionally protected rights.” The Constitution did not confer these rights, but it does explicitly protect some rights — rights deemed so very important that some of the nation’s founders wanted them explicitly enumerated just so there’d be no misunderstanding. This is where the Bill Of Rights (BOR) comes in.
Now, remember that the people already had freedom of religion, a free press and freedom of speech. They had these before the Constitution and the Constitution did not grant FedGov the power to interfere with those rights. So people retained these rights even after the Constitution was adopted. The optimists among the founders felt these rights were safe because FedGov’s powers are limited to those expressly granted in the Constitution, right? That was enough for some founders but others, more skeptical of the new federal government being created, foresaw a time when FedGov might try to overstep its Constitutionally imposed limits.
As a condition for ratifying the new Constitution, these founders — distrustful of a central government — wanted certain rights of the people explicitly mentioned in the Constitution. Hence, the BOR was created. The BOR consists of the first ten amendments to the Constitution.
And so, the First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Note that the rights enumerated in the first amendment are assumed to exist already and the Congress is prohibited from making any law abridging these pre-existing rights. So, for example, freedom of religion is not a right granted by the Constitution, but it is expressly protected by the Constitution. Note too that the First Amendment is just another rule: “Congress shall make no law…”
So what about the right to privacy? Again, before the Constitution, people all had a right to privacy. FedGov may interfere with our right to privacy only insofar as it is empowered to do so by Article 1, Section 8.
While it’s true that some rights are specifically enumerated in the Constitution (in the BOR), you also have rights that are not listed in the Constitution. These include the right to marry whom you will, to sing in the shower, to bungee jump and to see animal shapes in the clouds while standing on your head. You have rights — lots of them — and FedGov may interfere with those rights only to the extent that they are empowered by the Constitution to do so. How do I know this? The Constitution tells me so.
You see, while some founders worried and insisted that specific rights actually be included in the Constitution, others worried that, if you list some rights, then FedGov may eventually decide that the listed rights are your only rights. So, if we were to have a BOR, listing some rights explicitly, the BOR had to include the Ninth Amendment which says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Got it? Just because some rights are listed, that doesn’t take away all the rights that are not listed.
While the Ninth Amendment pertains to rights of the people, the Tenth Amendment does the same for the states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So, any state power that was not delegated by the states to FedGov, and which power is not prohibited by the Constitution, well, those powers still belong to the states and to the people.
The only way you don’t have a right to do something is if FedGov has been specifically empowered by the Constitution to limit that right.
Now that we have laid this out, let’s review Obama’s theory about a “right to privacy” and what he should have said. Obama thinks that a right to privacy is implied by the structure of the Constitution. But we know better. Anyone who “gets it” would have said: “A right to privacy existed before the Constitution and FedGov may not interfere with it except as empowered by the Constitution to do so.”
Clearly, Obama thinks that rights come from the Constitution, that’s why he feels compelled to find a right to privacy implied by its structure. Does he similarly believe that we enjoy freedom of speech only because the First Amendment says so? Clearly Obama does not understand the Constitution at all.
People like Obama, who think that rights come from the Constitution like, that model — that you only have the rights listed in the Constitution. Why? Because the fewer rights you have, the more power FedGov has. And people like Obama like big, powerful government so they can solve all of society’s problems. It just wouldn’t do to have citizens all doing their own things, exercising rights willy-nilly. It makes them too hard to manage. We’re more manageable when our options are limited.
He says he will avoid appointing justices who believe in “the strict letter of the Constitution.” He says that this is because such justices won’t see in the Constitution all the rights he believe are in there. But the Constitution, as we know, does not confer rights. The Constitution is rules for government. And what Obama really wants to avoid is justices who do not see in the Constitution all the powers that FedGov has assumed without having been delegated those powers by the states — powers reserved to the states by the Tenth Amendment but which have been usurped by FedGov over the years.
The Supreme Court has been instrumental in FedGov’s relentless power grab, finding each new power that FedGov usurps to be constitutional. It does this by means of increasingly expansive interpretations of the Constitution. The last thing Obama wants is a “strict constructionist” who believe that the Constitution granted limited powers to FedGov.
While he says he wants justices who will see lots of rights in the Constitution, what he really wants is justices who will see lots of delegated powers in the Constitution — which is pretty much the opposite of citizens’ or states’ rights.
Note too that Obama claims that it is conservatives who want want “to allow the court to legislate.” Baloney! It is the liberal justices who somehow manage to find each new power grabbed by FedGov to be granted by the Constitution, thus not merely legislating from the bench, but amending the Constitution from the bench. No need to amend the Constitution when you can just re-interpret it to mean what you want. By finding in the Constitution all the powers that FedGov has seized from the states, the Supreme Court has been a willing accomplice in FedGov’s ceaseless expansion of power.
Barack Obama likes the “living” Constitution rather than the “original intent” version. The latter limits FedGov’s powers too much for Obama’s grandiose socialist plans.