A lot has been already made about Barack Obama’s lament that “economic justice” and “redistribution of wealth” wasn’t a priority for the Warren Court. (I’ve even heard some people call his arguments “conservative” because he suggests that the courts may not be the best places to achieve such re-distribution.) Not enough has been made, to be sure, and this alone is terrifying in its implications.
But it is not – by a long shot – the worst thing he said during those recently uncovered radio interviews.
Obama said:
And uh, to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution – at least as it’s been interpreted, and Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties: [it] says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.
Emphasis mine.
This is wrong, wrong, wrong. It’s factually wrong, it’s philosophically wrong, it’s historically wrong, and it’s morally wrong.
The Constitution creates a government of limited, enumerated powers. It lays out exactly what the federal government “must do on your behalf.” What Obama actually laments is not that it says what the feds can do – it’s that it says the federal government may do that and nothing else!
According to the Constitution, the Federal Government must:
- Try all impeachments;
- Make or alter regulations pertaining to the time, place, and manner of federal Congressional elections;
- Publish journals of Congressional proceedings;
- Lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;
- Borrow money on the credit of the United States;
- Regulate interstate and international commerce, and commerce with Indian tribes;
- Establish a uniform rules and laws on naturalization and bankruptcies;
- Coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
- Provide for the punishment of counterfeiting the securities and current coin of the United States;
- Establish post offices and post roads;
- Securing copyrights and patents;
- Constitute tribunals inferior to the Supreme Court;
- Regulate and enforce piracy and international maritime law;
- Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
- Raise and support armies;
- Provide and maintain a navy;
- Make rules for the government and regulation of the land and naval forces;
- Call forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
- Provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States;
- Establish and preside over the nation’s capital and other federal lands and territories;
- Grant pardons;
- Make treaties and appoint ambassadors;
- Appoint federal judges;
- Hear court cases on federal issues or where litigants are states or from different states, or foreigners;
- Define and punish treason;
- Guarantee a republican form of government in each state;
- Make “necessary and proper” laws to carry out the above.
That’s it. That’s the whole of it. That’s what the federal government is supposed to do “for you.” Specifically limited, specifically enumerated. And the Tenth Amendment puts the period on the sentence – everything else is outside the province of the federal government, and reserved to the states or the people. It seems that Obama didn’t make it all the way through his Constitutional Law casebook when he was teaching all those classes.
(It is true, of course, that the Reconstruction Amendments expanded the role of the federal government. But institutions like the radical Warren Court took those new powers and expanded them in ways the drafters would not recognize, expanding the definition of “state action” beyond recognition and finding new rights in century old text.)
If people wanted small “G” government to do more, they were welcome to vote such policies in – in their individual states. Guys like Richard Daily and Barack Obama were perfectly free to ruin Illinois with their social experiments. Chicago could tax the hell out of her citizens and spread the wealth around all they wanted.
And then the rest of us could all sit back and say, “Eesh. Sucks to be them.” The best part about federalism is that is allows all kinds of experiments, and allows the failed tests to be quarantined.
It’s the Bill of Rights (and several subsequent amendments) which primarily lay out the “Negative Rights” Obama was talking about, (although there are several very important ones in the main body). The original Federalists opposed a bill of rights, not because they opposed the right contained therein, but because they feared someone exactly like Obama would come along – someone who thought that if the Constitution made too much of what the government couldn’t do, people wouldn’t pay any attention to the specific limits on what it was could do.
In other words, when the Founding Fathers were arguing and debating over what should and should not be part of our nation’s charter, they were fighting over how best to prevent a guy like Obama from tanking the entire experiment. They were worried about would-be benevolent dictators who would subvert the individual rights they recognized were inalienable for the “greater good” – an inevitable path towards tyranny, either of the majority, or of the federal bureaucracy.
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The Founders understood that government exists to protect individual rights, and that government power was a necessary evil to maximize individual rights to the widest possible extent. Among the most fundamental of those rights was the right to property – to own it, to keep it, to earn it, to risk it, to invest it, to live on it, and to dispose of it at will.
Without property, there is no freedom. Imagine a world where you could not exclude people from your house. Or your car. Or from your bank account.
Some of Obama’s statements, if taken in a very favorable light to the good Senator, could be taken as legally and structurally correct (i.e. that the courts aren’t necessarily the best place to bring about social change). But the philosophical foundation of the Constitution, and it’s grand promise to all Americans who don’t feel like they need adult supervision is completely repudiated by them. And that’s scary, because it means he doesn’t understand what makes this country unique, special, and exceptional. He doesn’t understand the engine of its wealth, freedom, and prosperity. He doesn’t understand that the American dream isn’t to be dragged along by the government, but to be free to do what we want – shielded along the way from brigands and thieves, not governed by them.
He doesn’t understand America. And that’s an awfully frightening blind spot for the President of the United States to have.
