Our new president once lectured in Constitutional Law. He and his
vice president are both lawyers who consider themselves
well-schooled on the subject, yet both men frequently mangle
citations of our founding documents. Although
hay was made of Joe Biden’s gaffes on the campaign trail,
scant attention has been paid to similar mistakes by his boss.
The flubbed oath of office is well-known, but before a profoundly
silly headline like
Slate’s “John Roberts, Fallible” becomes conventional
wisdom (who thought John Roberts was infallible,
anyway?), it’s worth noting that the goof
happened when the Chief Justice of the Supreme Court was
interrupted by the (then) president-elect. Minutes later, and
well before next day’s “do over” on the oath,
Paul Kangor
noticed a conflation of language from the American and French
Revolutions in President Obama’s Inaugural Address.
Kangor was right to question the curious way that Obama and his
head speech writer skated past the centrality of life as
an inalienable right.
Unlike Bill Kristol, I do not
regard the Inaugural Address as “unabashedly pro-American and
implicitly conservative.” There is more to conservatism, and more
to patriotism, than willingness to acknowledge our founding
fathers.
The sleight of hand in the Inaugural
Address (“all are equal, all are free, all deserve a chance
to pursue their full measure of happiness”) came at the expense
of the Declaration of Independence, but President Obama is
equally cavalier with the Constitution. In 2001, he faulted
that document for making it difficult to justify “redistributive
change.” As president, he looks forward to appointing at least
one Supreme Court justice who will or won’t pass muster based, he
says, on “what is in the judge’s heart.”
That criterion is a perfect summary of why the debased liberalism
we have suffered with for three generations prefers activist
judges, because heart-reading is secular shorthand for “by their
fruits, you shall know them.”
Unfortunately, arsonists have more social cachet than shepherds,
which explains why only judges working to change the status quo
are considered “good.” On the one hand, our new administration
congratulates itself for the enthusiasm with which President
Obama wants to let a million flowers bloom. On the other hand,
even principled opposition to any presidential initiative is
rudely dismissed
as so much fertilizer. All but a few pundits avert their eyes
from that paradox because (per the Inaugural Address) there is
work to be done if we’re ever going to shake free of the Bushian
implosion that purportedly left us standing pat, favoring only
the prosperous, misunderstanding our own power, indifferent to
suffering beyond our borders, and falling for false choices
between our safety and our ideals.
A pretense to the wisdom of Solomon is what British columnist
Gerald Warner
flagged as the most dangerous ingredient in the character of
the politician now finding his footing — and, remarkably, his
first executive experience — as president of the United
States.
Obama is, as one friend put it admiringly, “a chameleon who makes
Bill Clinton look awkward and honest.” Before succumbing to
fulsome
praise for “the
smartest man in the room,” or raising a glass to his promised
“restoration of science to its rightful place,” we must remember
that intelligence and wisdom are not synonyms, and that “science”
in the context of the Inaugural Address means either “global
warming” or “embryonic stem cell research.” Advances in
climatology and ultrasound imaging are not welcome.
Recognition of the biology behind the successful
wolf control measures championed by Alaska’s effervescent
governor do not fit the preferred narrative, either. In other
words, it is crucial to “recall the reality that lies behind the
rhetoric,” as Warner wrote to people who are “cocooned in a warm
comfort zone of infatuation with America’s answer to Neil
Kinnock.”
More particularly, Warner continued, “Denouncing ‘those who seek
to advance their aims by ‘inducing terror and slaughtering
innocents’ comes ill from a man whose flagship legislation, the
Freedom of Choice Act, will impose abortion, including
partial-birth abortion, on every state in the Union.”
Warner makes a fair point, although it is not accurate to
characterize FOCA as Obama’s “flagship” legislation, seeing as
how he has so many flagships. For one thing, his nominee for
Attorney General hopes to change the prevailing interpretation of
the Second Amendment as an individual right. For another, his
staffers recently chastised the Speaker of the House for letting
the cat out of the bag about an economic stimulus package that
includes significant funding for contraception overseas.
Reading about Nancy Pelosi’s argument for contraception as a
money-saver, one sees the handiwork of hard-charging young
staffers having conversations along the lines of “We need to
repair roads and bridges, but we can approach aging
infrastructure from two sides, and wouldn’t it be great to ensure
that there are fewer people around to stress the capacity of what
we already have?”
Were the principles involved followed as zealously as President
Obama and his dimmer acolytes might wish, the end result would be
a dystopian version of Disneyland. Think of a theme park built by
Charles Darwin and Friedrich Nietzsche, where princesses sing
anthems to tolerance rather than true love, postmodern poetry
marks special occasions, and iron discipline is welded to the
familiar aphorism that “there’s so much that we share, that it’s
time we’re aware, it’s a small world after all.” Then add Willy
Wonka running a Ministry of Fun, and dwarfs who despair of ever
making a shot through basketball nets of regulation height.
Fortunately, we are not likely to face that predicament, if only
because our new president has finely-honed political instincts.
Faced with an “Extreme Home Makeover” project that spans multiple
time zones, President Obama used his Inaugural Address to ask and
answer the requisite question (“Can we do it? Yes, we can!”).
His unflagging support for abortion will continue to be
nettlesome, however, and the myopia with which he and his
bench-warming Vice President view our founding documents rests
largely on the warping influence of Roe v. Wade and
Doe v. Bolton. The de facto litmus test for Supreme
Court nominees, for example, is a logical consequence of two
cases that vie for the gold medal in flawed legal reasoning: the
majority opinion in Roe that Justice Harry Blackmun
wrote
back in 1973, and the majority opinion that Justice William O.
Douglas wrote
for Griswold v. Connecticut in 1965.
Blackmun plumbed unexplored depths of the Constitution to
discover an unrestricted (and until then, wholly imaginary) right
to abortion. His discovery was made possible by what Douglas had
earlier called “penumbras and emanations” associated with
“specific guarantees in the Bill of Rights.”
When you’ve raided the vocabularies of astronomy and chemistry to
find a right to privacy in the penumbra of an emanation, it’s no
great leap to suppose that people have penumbras and emanations,
too, and that in turn would suggest that reading the heart of a
Supreme Court nominee is — if you’ll pardon the expression —
child’s play.
Judges whose hearts reveal conservative penumbras or sympathy for
Scalia-style “originalist” thinking, will not be nominated by
this administration for seats on the Supreme Court, and that is
why Constitutional Law has fallen again on hard times, even as
modern Democratic adulation for the nobility of law elevates
another coffee klatch of law school graduates to positions of
political power.
