Obama and the Constitution
By Rick Henly on Tuesday, March 16th, 2010 |
Our Constitution, According To Barack Obama
Barack Obama taught Constitutional law at the University of Chicago for ten years. Chapter 3 of The Audacity of Hope is his take on the U.S. Constitution, Quotations are from pages 71-100 of the 2006 Crown Publishers edition.
(I refer to the author as Mr. Obama for brevity, though he was a US Senator from Illinois at the time of the book’s publication, and with due respect to his office as President at the time of this writing.)
Every “audacious” statement he makes is one of a set scattered in the chapter. He makes no statement that stands alone, strong. Every statement made is subject to modification somewhere in the text, or nearly contradicted. If called out on one point, a dodge can be found elsewhere. In this way, everything can be quibbled over with half matching material scattered throughout the chapter. Any position he takes avoids accountability if read critically. He would confuse those he cannot amaze.
Sometimes the modifier he plants is in the same sentence, same paragraph, or same page. An example is found on page 92: he both describes the Constitution as a sound blueprint, then not a fixed blueprint. This word game, in which a blueprint both is, and is not, a blueprint, makes his “audacious” writing frustrating to grips with. It also permits a moon-eyed admirer to feast on generalities and believe any number of things they would like.
Perhaps the most important fact about this Chapter is this qualified “audacity.” It tells us much about the character of the writer. It explains why a monograph on a document written in logical outline form, our Constitution, is dealt with in a random form.
PREFACE
In this critique, you will find article headings, followed by what I think he is really saying listed in bullets, then my analysis. There are five such articles, with a conclusion.
The Great White Charter
“Stamped into the very fiber of the Senate, within its genetic code, was the same contest between power and principle that characterized America as a whole, a lasting expression of that great debate among a few brilliant, flawed men that had concluded with the creation of a form of government unique in its genius—yet blind to the whip and the chain.” pp. 75-76
What Is He Saying?
* The Constitution was written by brilliant racists.
* All of the Founding Fathers were “blind to the whip and the chain.”
Analysis
You read most of this chapter before coming to his idea of the Constitution, but the race card is thrown right away. The liberal Mr. Obama is not very sensitive to the diversity among the Founding Fathers. His American past is a coloring book, and he only uses the two large black & white crayons he apparently keeps in his desk at all times, to fill in the pictures.
Forgetting his own words that the Constitution is a compromise on slavery, we are left to wonder who the Founders were compromising with, since they are all authors of that morally cold charter. In truth, it was a compromise on many things, including slavery, but 36 of the 39 Signers of the Constitution voted for restrictions on slavery.
The Founders had to cope with the actual presence of slavery, forced on the Colonies by Britain, and already here for nearly two hundred years. However, they “marked” it (in Lincoln’s words) as an evil, and put in on the path to ultimate extinction even before the Constitution was written, with the Northwest Ordnance. They limited the influence of the institution through the (often misrepresented) 3/5th clause, and looked to a ban on the importation of slaves by the time the first generation of American men to grow up under the Constitution were old enough to shave. Neither did they proudly refer to “slavery” in the Constitution, remarkable for people Mr. Obama would have us think were forging chains and cracking whips.
Slavery would have been far more secure had there been no such Constitution. The fact that “someone like me” could set within the walls of the Senate was ultimately made possible by the very ideals and instruments formed by the Founders. The Constitution brought the institution of slavery within the moderating influence of the whole country. Otherwise it would have taken deeper root in States and regions than it did. As the pages of American history are turned from 1787, this is proved.
As we shall find later with his “living Constitution” theme, Mr. Obama personifies the Constitution, giving it not only human, but even racial, characteristics. It would seem we might best pitch the Constitution in a trash fire. One of the historical figures he admires in this Chapter, William Lloyd Garrison, did publically burn a copy of the Constitution.
Ironically, Mr. Obama, who says he admires Abraham Lincoln, takes the position of Mr. Lincoln’s opponent, Stephan A. Douglas, that “This government… was made by white men, for the benefit of white men and their posterity forever…”
When the original intent to extinguish slavery matured, and those who would preserve and extend slavery rebelled, resulting in civil war, the Constitution gave its defenders the law to declare emancipation, the authority to make it happen, and the process to abolish slavery.
The Declaration As Racist Idealism
“The Declaration of Independence may have been… ‘a transformative moment in world history’… But that spirit of liberty didn’t extend, in the minds of the Founders, to the slaves who worked their fields, made their beds, and nursed their children.” p. 95
What Is He Saying?
* Again, all of the Founders were of one mind on slavery.
All of the Founders owned slaves; they were all plantation owners; they all had slaves working as domestics, making their beds, and nursing their children.
* The Founders did not consider black people as “men” and did not mean to include them in the famous words of the Declaration that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” They meant all white men are created equal.
Analysis
Mr. Obama is unusual, even among those who read the original Constitution as a bulwark of slavery, in that he also condemns the Declaration. Critics often contrast the idealism in the Declaration with the stone cold Constitution, but Mr. Obama will have none of that. He looks at his black crayon and then his white crayon, and it is a no-brainer.
He would burn the country’s birth certificate. He would deny the identity of our country as founded on any hopeful idealism. We must never see any fundamental good in the souls of any Founders, or any of their works, and the sooner we get it out of our thick heads that they might actually have meant to improve the human condition, the better. He would snuff out the last candle in Philadelphia.
What would Mr. Obama do without those two jumbo crayons to help us see things in black and white?
The Constitution As Junk Law
“As we read these documents [Constitution, Federalist Papers, Bill of Rights], they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration. So I appreciate the temptation… to assume that 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 the Founders set forth, as they intended, then we will be rewarded and all good will flow. Ultimately, though, I have to side with [the] 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.” p. 90
What Is He Saying?
For Mr. Obama, keeping the Constitution around is like maintaining a clunker. You go to the junk yard for replacement parts to keep in running. To keep the country running a certain way, you go to the Constitution, not to find out what is lawful, but to find a part that can be used to make what you want lawful, even if you have to jerry-rig it. But it is not really efficient, and replacing it would be the best thing, even if a part at a time.
He is saying…
* The Constitution is not grounded in natural law.
* It is not of divine inspiration.
* We are a democracy.
* Following the original Constitution is a bad idea.
* It is… it is… alive!
Analysis
Democracy vs. Republic
If you slow down the frames, you will catch that we are a “democracy,” which is made without noting that the term is not used in the Constitution, whereas its emphasis on the republican form is clearly stated. The Founders understood democracy, and rejected it. However, he would be correct if saying that we are progressively becoming more a democracy than a republic.
The “living Constitution” approach is that the Constitution is still with us because it has been changeable. It is made to inhale the utopian agendas and exhale law that enables it. It lives because it thinks modern thoughts, and has changed its mind about its very identity: It used to think it was a republic, when it was quite young, but now is flexible enough to mix metaphors thinks it is a “democratic republic,” and in time, will be come to realize it is, after all, purely a democracy.
Democracies and republics are both forms of self-government, but the status of majorities and minorities are different in each. Democracy is majority rule, and is a transitional condition leading to a political nervous breakdown, then on to some form of insanity. The increasing instability in our domestic and foreign policy is a warning that we are well along the way in this pattern.
A republic is based on the rule of law, not the rule of numbers. The mistake to to confuse the parliamentary device of voting, with the political system, democracy. The Founders most emphatically did not intend to make a means of decision-making (voting) the supreme principle of our government.
He does not leave us with any reason to expect that following the Constitution without deviation will be “be rewarded” with any good, much less “all good.” It was designed to keep a republic in motion, but is being increasingly run as a democracy. Think of using a tool for a purpose it was not intended, and you will know the problem.
Natural Law
There is probably nothing more plain than that the Founders wrote the Declaration of Independence and Constitution from a belief in natural law. The proof is so overwhelming as to be, the in words of the Declaration, self-evident.
The Modern Argument
“So if we all believe in individual liberty and we all believe in these rules of democracy, what is the modern argument between conservatives and liberals really about? If we’re honest with ourselves, we’ll admit that much of the time we are arguing about results—the actual decisions that the courts and the legislature make about the profound and difficult issues that help shape our lives.” p. 88
What Is He Saying?
* Liberals and conservatives are not being honest if they ground their arguments on the Constitution, for they/we are only interested in our political agendas.
Analysis
Mr. Obama attributes indifference to the Constitution, cynicism, and hypocrisy to both modern liberals and neo-conservatives in the “modern argument” over its meaning. He is, unfortunately, right, but in this quotation, he reveals himself, in his attempt to reveal others.
Just & Only, Words On A Page
“For in the end laws are just words on a page—words that are sometimes malleable, opaque, as dependent on context and trust as they are in a story or poem or promise to someone, words whose meanings are subject to erosion, sometimes collapsing in the blink of an eye.” p. 77
What is he saying?
* “Laws are just words on a page.”
* Since the Constitution is the Supreme Law of the Land, it must then supremely “ be, --just words on page.”
Analysis
There is no out-and-out calling the Constitution the proverbial “scrap of paper,” but he writes a jigsaw puzzle, the pieces of which compose that very picture, though he would then be able to blame the reader for such a characterization. When we put the pieces together, we get the picture: it is an antiquarian, meaningless legalism; perhaps at most the basis “for a conversation to be had,” but nothing more.
Conclusion
The overall impression you get is that for Barack Obama, reading the Constitutional is pretty much like reading tea leaves: make the tea, stir it properly, use your imagination, and read what you want in the beverage.
Mr. Obama thinks of the Constitution as “just words on a page.” Given this understanding, just what did President-elect-Obama swear to preserve, protect, and defend? Nothing “fixed and unwavering” (p. 90), perhaps “a story or poem” (p. 70), certainly “just words on a page” (p. 88).
The Constitution is the victim of generations of neglect and abuse, and it has become a forgery in the hands of those with contempt for its authors and original form. It has taken over 200 years to get the Constitution to such persons and in this condition, but—good news: We know what the good old Constitution said, and in spite of the belief that remaining true and following that original Constitution without question or deviation would be a mistake, or the lie that we cannot know what the Founders intended, or the fallacy that their ideas are now outmoded, the Constitution can be restored.
© Archie Lintz, March 16, 2010
Comments...
JoeyS posted on August 18th, 2010 @ 13:14:59I'm not a legal expert so any commentary I can afford this conversation comes from a quite limited view. Having said that, I believe that much of your analysis makes unnecessary leaps in order to reach your conclusions. I appreciate your attempt (and success in parts) of approaching this respectfully and from balance of thought but it seems that some of your conclusions were reached before the evidence presented itself.
Here are a few things I take issue with:
1. He was not writing a history of the founding father's and their treatment/use of slaves or their beliefs on slavery, he was making a general point. And his point is well supported by history. Take, for example George Washington who had several teeth extracted from his slaves and put in his own mouth. Though, later in life Washington's understanding of slaves changed and he became much more hopeful that they would be emancipated. Thomas Jefferson won the presidency largely due to his support of reducing the humanity of slaves to 3/5 rather than considering them whole (this is how he won the south). Three slave states were formed during the Louisiana Purchase furthering the institution of slavery (Jefferson). Jefferson had somewhere around 150 slaves of his own, and thankfully he released many of them later in life. James Monroe executed 30 slaves who were trying to stand up for their dignity and humanity. As historian Henry Wiencek put it, "The other founders resisted emancipation, not because it was a mad scheme but because they did not want to relinquish the wealth which slave sales poured into their coffers." President Obama may have done a disservice to the point by lumping all founding fathers into a prescribed category when they obviously were all unique in their understanding, but this doesn't change his main point: The Constitution was written by men who did not treat black people as human beings and until we recognize that context we won't read it well. This would be like reading Leviticus and assuming that it's laws and statutes have no context but are universal.
2. Just because the Constitution was written in a way that allowed for emancipation does not necessarily mean that the founding fathers were intent on that being the end result. The logic doesn't follow. If the priest who walked by the injured man on the road to Jericho had, as a result of seeing the injured man, preached a sermon hoping that people would eventually change their minds about helping people his point was not made because his actions did not reflect the values he was hoping to instill. But the Samaritan who sacrificed his time and money, he truly believed in helping people. If the founding fathers (as George Washington and even in part Jefferson eventually did) truly believed that black people were human beings, as is self-evident, then their actions would have reflected more significantly that belief.
3. You said Obama's point was that, "Liberals and conservatives are not being honest if they ground their arguments on the Constitution, for they/we are only interested in our political agendas." If this is true you haven't made your point well. I would argue that this isn't what he is saying. He implies that we are operating as a republic (laws governing). To say that he is arguing constitutionalism vs. something completely different is kind of disingenuous, unless there is more to the quote than you showed. His point is that the arguments are not about constitutionality (as much as some folks would like to believe) but about being unhappy with the results of the republic process.
Look, I have no problem with people disagreeing with Obama. I don't even have much of an opinion. But I will strongly advocate that we don't brush our history under the rug choosing not to deal with the true sins of our past. If we do not acknowledge the tragedy of how slaves were treated, even according to our laws and founders, then we have done a disservice to ourselves and to our future. It is not until we have reconciled our past, actively chosen to pursue a different path, that we can move forward constructively. I urge you, look honestly at our history and pursue truth, liberty, and happiness more purely than we have. If we deal with our past societal sins it frees us to be better in the future. Obama seems to be advocating that if we can't read the Constitution from its context, understanding that it necessarily is read differently as our context changes (hence amendments), then we aren't reading it properly. I'm not so sure he is wrong. here is an example:
Do you really want militias to have access to nuclear weapons (2nd amendments). This was not an issue in the 1780's. State militias were given rights that allowed them access to weaponry in order to insure their status as free, both from too much government and from other sovereign bodies that might wish to infringe upon that freedom. Right now our government has access to weaponry that could wipe out entire regions. No militia could stop that, but I wouldn't be happy if militias had access to that much fire power. It would be irresponsible. Our context has changed dramatically meaning that the words of the Second Amendment have to be understood differently.
Again, I'm not a legal expert but I hope for responsible and thoughtful engagement from people on all sides of the political spectrum.
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