Monday, January 23, 2012

Obama the Constitutional Illiterate

Today marks the 39th anniversary of the Supreme Court's infamous decision in the Roe V. Wade which struck down all state restrictions on abortion. This decision remains today one of the most egregious abortions of the constitution ever committed by the Supreme Court. Barack Obama thinks the court got it right. He is a constitutional illiterate.
In his dissent Justice Byron White said “I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right...” White described the court's decision as a an exercise of “raw judicial power.” He considered it to be the only illegitimate decision, by which he meant one without any basis in the constitution, that had been delivered during his tenure.

Barack Obama's opinion of this abominable decision is diametrically opposed to that of Justice White. Today he said “As we mark the 39th anniversary of Roe v. Wade, we must remember that this Supreme Court decision not only protects a woman’s health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters. I remain committed to protecting a woman’s right to choose and this fundamental constitutional right.”

The gulf between these two opposing points of view couldn't be wider. Justice White cannot find any link, no matter how tenuous, between the constitution and a right to abortion. Barack Obama calls abortion a fundamental constitutional right.

Justice White was a man of accomplishment who excelled in almost everything he did. He was an All American football player in college who went on to lead the NFL in rushing two years straight. He won a Rhodes scholarship to Oxford and graduated magna cum laude from Yale. He developed a flourishing private law practice and then served in the Justice Department before being appointed by President John F. Kennedy to the Supreme Court. Barack Obama – not so much. He did nothing of note in high school and then somehow went to Columbia University. After graduation he was a community rabble rouser for a while before mysteriously being admitted to Harvard where he earned his law degree. While there he was editor of the Harvard Law Review although he apparently never wrote anything about the law. Afterwards he got elected to the state legislature for a few terms, then got elected to the U.S. Senate where he visited for a bit, accomplishing nothing, before getting elected to the Presidency. With records like that it is easy to see who actually understands the constitution.

Roe v. Wade was justified by Harry Blackmun on the basis of three ideas. First was the due process clause of the 14th Amendment which bars the states from depriving any person of life or liberty without due process of law. Relying on this clause was breathtaking in it's stupidity. For one, the amendment declares that a person cannot be deprived of life without due process of law and yet Blackmun's decision declared that unborn persons can be deprived of life without due process. Secondly Blackmun used the amendment to strike down the due process of law which the amendment requires. Justice White was correct that the 14th amendment provided zero support for Blackmun's decision. Barack Obama's view is constitutionally illiterate.

The second alleged constitutional basis for striking down the laws of all 50 states was that there was a concept of privacy which was protected by the bill of rights. This justification was as tenuous as the first. The Bill of Rights says not one word about privacy or abortion. The closest it comes is in prohibiting unreasonable searches and seizures. Moreover, there is nothing private about abortion. At the very least it involves the mother, the child, and the father. Usually it involves a medical team invading the privacy of the woman in the most extreme manner. Here again Justice White was correct and Barack Obama is a constitutional illiterate.

The final stretch for Harry Blackmun was to declare that the right to abortion was secured by the ninth amendment which reserves to the people all rights which are not granted to the federal government or reserved to the states. This idea almost has the veneer of plausibility. As a general principle we, as a free people, can do as we wish so long as we do no harm to others. However, it is a bridge too far to reach from that concept to the striking down of the laws in 50 states. Among the rights reserved to the people in each of the states is the right to form their own state governments. States are not prohibited from enacting laws to prevent and punish murder on the basis of the ninth amendment. In striking down the abortion laws of the fifty states Blackmun repudiated the ninth amendment and assaulted the rights of the people to form their own state governments. Blackmun's decision was an assault on the constitution itself. Once again Justice White understood the constitution and Barack Obama underscored today that he either does not understand or does not respect the constitution.


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