Constitutional Opinions

Hard Times for Our Founding Documents

The new president may think he's Solomon, but he's not quite there yet.

By 1.28.09

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.

Like this Article

Print this Article

Print Article
About the Author

Patrick O'Hannigan is a writer in North Carolina.