Barack the Constitutionally Clueless

There is a good reason why academics like yours truly are encouraged to present scholarship at conferences and publish papers. It keeps us in shape. If you say a stupid thing in a conference paper or published paper, someone is likely to stand up and point out that it was stupid. Been there. Done that.

Barack Obama was editor of the Harvard Law Review and a faculty member of the University of Chicago Law School. If he ever published anything or presented a paper anywhere, no one has managed to obtain a copy. That may help to explain this amazing comment at his recent (rare) press conference. The reference, of course, is to the recent Supreme Court hearing on ObamaCare.

Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.

There is nothing the least bit "unprecedented" in a Court overturning a law passed by Congress. Does this constitutional scholar really not know about Marbury v. Madison (1803), perhaps the most famous case establishing the power of the Court to review acts of Congress? Does he really not know that the High Court has frequently overturned acts of Congress? Apparently not. I would hope that any student taking an undergraduate Con Law class would know better.

And then there is that bit about "a law that was passed by a strong majority of a democratically elected Congress." ObamaCare barely passed the House of Representatives, where the Democrats held a 75 vote majority. The vote was 219–212, with 34 Democrats and all 178 Republicans voting no. In the undemocratic Senate it passed 60 to 39, the exact minimum number of votes needed to pass it. Even then, the Senate has to work some chicanery to pass the final version. To say that the law was passed by a strong majority is a gross linguistic inexactitude, otherwise known as a big, fat, lie. That's assuming the President knows enough to actually tell a lie.

The bit about judicial activism is too easy. Everyone is opposed to judicial activism except when it comes out their way. The bit about "an unelected group of people" overturning "overturn a duly constituted and passed law," cannot pass without comment. Is the President really opposed to judicial review? Does he not understand that this is exactly what the Supreme Court is supposed to do when a majority has concluded that the duly constituted and passed law is in violation of the Constitution?

President Obama seems to be utterly clueless about the role of the Courts in the constitutional system. If you don't believe me, ask Ruth Marcus, who is all in favor of ObamaCare:

Obama's assault on "an unelected group of people" stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning "a duly constituted and passed law."

I wouldn't go quite as far as Marcus did in granting the Court the ultimate power to interpret the Constitution. It has that power only in individual cases. I would also put an asterisk next to "as the former constitutional law professor certainly understands," since it is clear that he understands nothing at all.

Comments

[larry kurtz]

only YOU can prevent narcissism, Ken.

[TB]

I teach 8th grade civics in South Dakota, and even they know how checks and balnces work. Nice post KB.

[Bill Fleming]

Zzzzzz.... It's campaign season, KB. Go back to sleep.

[Donald Pay]

Bill, there's more to this than KB's lack of sleep. It's a serious mental problem.

Obama passes the Republican health mandate and then takes up the right's criticisms of judicial activism. KB as much as admits he was hearing voices at one of his righty conferences, which is where this meme was hatched, telling him to write this latest conspiracy theory hallucination. In doing so he has to criticise/ignore years of righty dogma, while trying to fool us and himself that we don't have decades of quotes from righties saying how the mandate is better than government run health care, and that judges who ignore the elected branches are "activists."

Does KB think we are fooled by this? If I was spreading such lies and delusions, I couldn't sleep. Take your medication, KB. No one believes your voices are real.

[Ken Blanchard]

Donald: you are just not the brightest bulb in the tanning bed. President Obama was opposed to the mandate before he was for it. Does that make a difference to you? Does your evasive answer disguise the fact that the President is talking obvious nonsense about the Constitution? Bill understands this as well as I do. He just doesn't care.

[Bill Fleming]

Don, it's going to get a lot worse with the lies, I fear. Not necessarily from KB, but from the Romney camp via Citizen's United (you know, that OTHER SCOTUS judicial activism project that overturned 100 years of history). I'm thinking we're about to see a slime storm of biblical proportions. I think it's the only shot he's got.

[Bill Fleming]

That is correct. I don't care. I am detaching, sensei. Because it's about to get very ugly, I think.

[Bill Fleming]

Suffice it to say that it is built into the design of our founding document for the Legislative, Executive and Judicial to be in conflict with one another. There is nothing new here.

Obama is putting political pressure on a Court that has been acting in a fairly consistently political way on some key issues, in essence, legislating from the bench even as they profess not to be doing it.

The part I don't care about is that I think they should, and that that is actually what they do. Decide what the law is.

Obama was just firing a shot across their bow, warning them that if they decide against him on this, they will perhaps be hoisting themselves on their own petards, (which of course, he knows, Ken knows, and Don knows, they have every constitutional right to do.)

But it will go down in history, along with appointing a president while usurping the power of a State Court, and declaring corporations as people who have 1st Amendment rights.

I'm thinking Obama's calculus is that there is perhaps a chance he can convince Roberts and Kennedy to (at long last) be at least a little bit ashamed of themselves.

As for Alito, and Thomas, there is likely little or no hope. LOL.

[duggersd]

In order for liberals to argue a point, they have to first re-define the terms. Judicial activism has to do with the judicial branch legislating (see Roe v Wade) or letting their personal feelings enter into the decision rather than what the law is. President Obama welcomed the SCOTUS to look at his law. In fact, he could hardly wait. It is hardly judicial activism if the judges look at what the Constitution allows and rules on whether it is constitutional. As for Citizens United, that particular judgement was a protection of 1st Amendment rights that we should always be concerned when the Congress tries to limit them. BTW, it is probably closer to judicial activism to claim that a person growing wheat for his own use is interstate commerce.

[Bill Fleming]

duggerSD, you can just argue with me one-on-one. You don't have to generalize me into "liberals."
There may in fact be some liberals who completely agree with you. Of course, if they told you they did,
you would probably then feel like you'd have to change your mind for some reason.

[Dave]

Obamas follow up:
"Let me be very specific. We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care ... at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal," Obama said during an Associated Press luncheon on Tuesday. "The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress."

true or false:
We have not seen a Court overturn a law that was passed by Congress on an **economic issue**, like health care ... at least since Lochner...

[Dave]

@duggersd, Scalia (the originalist) has stated that the 14th amendment applies only to African former slaves yet he used it as the cornerstone of his decision in Bush V. Gore... Comments?

[Ken Blanchard]

Bill: you can read the tea leaves of Obama's motives all you want. What he said was just plain stupid. If he'd been some dumb cowboy from Texas, would you have been as generous?

Dave: 1) false. The Court has overturned dozens of Congressional acts on economic issues. Powerline has a list: http://www.powerlineblog.com/archives/2012/04/obama-walks-back-supreme-court-threat-still-gets-it-wrong.php.

2) Scalia was asked in an interview whether he thought the Court had gone wrong by extending equal protection to include women. He said yes, on the grounds that no one voting for the amendment at the time thought that it meant that. I disagree, but I am not an originalist. This does not mean, however, that the amendment applies only to race.

At any rate, the Court went the direction that it went and a very large body of equal protection jurisprudence is now in the record. I know of nowhere that Scalia has challenged those precedents when acting as a judge.

Good eye and good question.

[Ken Blanchard]

One final note about Donald's mental flatulence. He speaks of "one of [my] righty conferences..." The Midwest Political Science Association, the International Political Science Association, and the Association of Politics and the Life Sciences are all professional organizations in good standing. I attend no "righty conferences," whatever those are. Donald is flamboyantly ignorant.

[Bill Fleming]

"If he'd been some dumb cowboy from Texas, would you have been as generous?"

You mean the one the court appointed president, KB?

Sure, why not?

;^)

[Bill Fleming]

As long as we're doing "what-ifs" KB, how about these?

Do you suppose if the SCOTUS had chosen to honor the popular mandate on Bush v Gore we would have avoided the ridiculous financial debacle caued by the Bush tax cuts, two unfunded wars, a runaway gambling addiction on Wall Street and the general collapse of the economy?

And do you suppose we would be well into having developed alternative, sustainable, clean energy resources, and have the Social Security Trust fund tucked away in a lock box?

I say when it comes to stupidity, perhaps Obama is just fighting fire with fire.

[duggersd]

Bill, I use the words I mean to use. When I say liberals, I mean liberals. And you fall into that category. President Obama is a liberal. The only way he is able to argue the SCOTUS should not rule against him is to change the meaning of judicial activism to meet his daffynition.

[Bill Fleming]

If you use the words you mean to use, duggerSD, then be careful when you use the word "only".
Using it when there are obviously so many other ways to to challenge the court makes you look stupid.

[Ken Blanchard]

Bill: when the drugs wear off, get back to me.

[Bill Fleming]

KB, sadly, I used up all my drug coupons many decades ago. Flashbacks maybe?

[duggersd]

OK, Bill, perhaps "only" is too strong of a word. But at least the implication is that you agree that that is what liberals do. They change the meaning of the terms to fit their narrow daffynitions. Otherwise they cannot credibly argue their case almost all of the time.

[Bill Fleming]

,,,you mean like when tax cuts that were scheduled to expire on a date certain are called "tax increases" when they do? LOL. The GOP boys are masers of Orwelian doublespeak, DuggerSD.

Don't even get me started:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/05/09/INKA17AHKE.DTL