Some commentary has been made that taking four minutes of an hour long show somehow unfairly characterizes Mr. Obama’s comments. The entire program includes a moderator and two other constitutional scholars, some public service announcements and calls from listeners. Mr. Obama’s actual speaking time on the program may have been eight minutes. Four minutes is about half his total time.
Obama’s Views of the Warren Court
The You Tube clip presents his personal views on the Warren Court of fifty years ago as a court that did not go far enough. He refers to a tragedy that the Warren Court ultimately found itself bound by the constraints placed upon it by the founding fathers. He seems to have found it unfortunate that the Supreme Court followed the Constitution. The Constitution has historically stood as a constraint upon government action as Mr. Obama said. He seems to lament that the court would not read into the Constitution a redistributive philosophy that he apparently holds.
The full WBEZ program tracks the evolution of the 14th Amendment and its use to extend the Bill of Rights as a constraint upon state government and the banning of discrimination of by state action. Among the participants it is a fair representation of history and how the courts played a role in advancing liberty for all Americans.
Breaking Free from the Constitution
Mr. Obama’s comments take a turn from discussing the historical record. Unprovoked he laments that the Supreme Court “could not break free from the essential constraints placed by the Founding Fathers in the Constitution.” He further describes the Constitution as “a charter of negative liberties.” This is at odds with the preamble to the Constitution and the Bill of Rights.
The Constitutional preamble describes the goal of securing the blessings of liberty for the Founders and posterity. The Bill of Rights outlines positive liberties: free speech, press, religion, jury trials, defense counsel, and more. The Miranda Warnings are grounded in the Constitution as positive rights.
The extension of constitutional limitations on state government power that had previously existed on federal power by the 14th Amendment is a marvel at work daily in the criminal justice system. The Constitution protects all of us from the exercise of the awesome power of the government when it seeks to take away our liberty property and life.
Oath to Uphold the Constitution
Mr. Obama had been sworn in and took an oath upon his admission to practice law in Illinois in 1991. He was sworn in and took an oath as an Illinois State Senator in 1997. On each of those occasions he swore (or perhaps affirmed) to uphold the Constitution of the United States. A view that the Constitution is some constraint that the government should break free from appears at odds with the oaths he had taken twice before the interview
The Court should maintain its historical role as protector of individual liberty. The notion (a favorite Obama term) that the Court should be a distributor of collectivist justice for groups is misplaced and has no basis in the Constitution.
A view of the Constitution that involves the Supreme Court in essentially a kind of group social justice would remove the Court from its current role as our protector from government instrusion and change it to some kind of hopefully benevolent dictator.