The Magazine

Obama's Constitution

The rhetoric and the reality.

Mar 17, 2008, Vol. 13, No. 26 • By EDWARD WHELAN
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Obama purports to be "not unsympathetic to Justice Antonin Scalia's position" that the "original understanding [of the Constitution] must be followed," but he won't even present Scalia's views accurately. Let's set aside the fact, all too common among liberal critics, that Obama doesn't keep straight the distinction between Scalia's original-meaning species of originalism, which looks to the public meaning of a constitutional provision at the time that it was adopted, and the original-understanding species, which looks to the contemporaneous understanding of the ratifiers. Obama claims to

appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.

But Obama's "fundamentalist" name-calling is misplaced. Originalists understand the Constitution--not "our democracy"--to be "fixed and unwavering" (apart from the amendment process it provides, of course). They recognize that, precisely because the Constitution leaves the broad bulk of policy decisions to legislators in Congress and in the states, there is lots of room to pursue and adapt different courses through the democratic processes. No originalist believes that judicial respect for the operations of representative government will guarantee that "we will be rewarded and all good will flow." This is a straw man. The virtue of originalism lies foremost in protecting the democratic decisionmaking authority that the Constitution provides. Our legislators will be sure to mess up plenty, but at least citizens will have the ability to influence them--and replace them.

Obama finds himself compelled "to side with Justice Breyer's view of the Constitution--that it is not a static but rather a living document, and must be read in the context of an ever-changing world." But no one disputes that the Constitution "must be read," and applied, "in the context of an ever-changing world." The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution's meaning willy-nilly--in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require. The cliché invoked by Obama of a "living" Constitution disguises the fact that the entrenchment of leftist policy preferences as constitutional rights deprives the political processes of the very adaptability that Breyer and company pretend to favor. As Scalia has put it, "the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it."

And so on for all of Obama's other deceptive rhetoric in his chapter on "Our Constitution" in The Audacity of Hope, including his galling claim to be "left then with Lincoln" in their supposed common understanding of the Constitution. On judicial nominations, Obama brazenly contends that "Democrats used the filibuster sparingly in George Bush's first term: Of the President's two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote." What Obama's casting conveniently obscures from the trusting reader is that these filibusters were unprecedented in the history of the Senate. Obama even pretends that it's obvious that Republicans would resort to the filibuster "if the situations were reversed." But the best evidence refutes Obama: There were only four votes on cloture--on proceeding to a final vote on confirmation--on judicial nominations during the Clinton administration. All four were supported by Republican leadership, and none received more than 14 negative votes from Republican senators.

In the end, an examination of Obama's record and rhetoric discloses the stuff he is made of--his own constitution. Beneath the congeniality and charisma lies a leftist partisan who will readily resort to sly deceptions to advance his agenda of liberal judicial activism. Given the likelihood of so many changes in the membership of the Supreme Court over the next eight years, it is particularly important that voters this November recognize the real Obama.

Edward Whelan, president of the Ethics and Public Policy Center, is a regular contributor to National Review Online's Bench Memos blog. His views are his own only.