Senator Obama's radical acceptance of social policy mandated from the judicial bench

By Steven Voigt

Every four years, the election of our President draws attention and scrutiny to the judicial system and appointments to the Supreme Court. Senator Obama has a fundamentally different opinion about what has happened in our courts over the past few decades and what should happen in our courts in the future.

The judicial branch has been, for decades, adrift from the Constitution, floating at the whim of the moment, with rudder and sail guided by men and not by the greater document that is to stand above men, to protect men from men. The courts have clipped from the Constitution the Bill of Rights and the Fourteenth Amendment and wielded them as pen and parchment to craft social legislation from the bench.

This trend is a social agenda driven by the courts like nails right into the bulwark of our nation. It should be unpalatable to all political ideologies, conservative and liberal alike, and to all individuals who either are not in power now or wisely know they will never stay in power forever.

Obama, though, has a different view of our Constitution. The following are his remarks from a 2001 PBS interview:

Senator Obama: I mean if you look at the victories and failures of the civil rights movement and its litigation strategy and the court I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote. I would now be able to sit at a lunch counter and order. As long as I could pay for it, I would be ok. But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society and to that extent as radical as people try 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 . . .

Caller: The gentlemen made the point that the Warren Court wasn't terribly radical with economic changes. My question, is it too late for that kind of reparative work economically and is that the appropriate place for reparative economic work to take place?

Moderator: You mean the court?

Caller: The court or would it be legislation at this point?

Senator Obama: You know maybe I am showing my bias here as a legislator, as well as a law professor, but you know I am not optimistic about bringing about major redistributive change through the courts. The institution just isn't structured that way. Just look at very rare examples where during the desegregation era, the court was willing to, for example, order, you know, changes that cost money to local school districts and the court was very uncomfortable with it. It was hard to manage. It was hard to figure out. You start getting into all sorts of separation of powers issues. You know in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time. The court is not very good at it and politically it is hard to legitimize opinions from the court in that regard. So I think that although you can craft theoretical justifications for it legally, you know, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts. I think that as a practical matter that our institutions are just poorly equipped to do it.

The left has tried to spin the words of this 2001 interview to make it seem like Obama meant something other than what he said, but to me, it is clear what he said. When I read his statements, I recognize that Obama wants to thrust his policies on us through the courts — he desires to do this but he recognizes this will be difficult, hence "I am not optimistic" — so he will take the legislative route as second-best.

Yet, this does not change what Obama desires and the way he views the courts. In his worldview, the structures of American government are just a means to an end, and it does not matter whether the framework is respected, so long as ideological victory is achieved. This recklessness will have consequences to our republic. Obama would select lawyers who share his political ideology and viewpoint about the Constitution to be our next judges, and the Democrat-controlled Congress is unlikely to stand in his way.

In the interview, Obama is casually discussing a federal judiciary that would impose reparations and other particular economic policies. The underlying message is that he doesn't have a problem with the courts imposing a social agenda of the sort we have seen the judiciary undertake in recent decades, or with the courts going beyond what any past court has done. Abortion, the free speech of churches, sex education in schools, universal health care, the definition of marriage, reparations, tax policies, welfare — once the road of activism is taken, there is no issue that a court could not rip from all the people, to be decided by only nine. After all, as we know, lawyers can "come up with a rationale" for just about anything.

When lawmaking is handed to the courts, the Constitution is no longer paramount, as the ideology of the few becomes a mandate for all. Unfortunately, Obama's specific plans have not been clearly defined, beyond the pre-election platitudes, but the idea of an activist court backing up an unknown liberal social agenda should give every voter pause.

The courts were meant to be passive arbiters of restraint and protection. The great legal minds of our founding era understood this, and the notion of "redistributive change through the courts" is antithetical to the proper role of the judiciary. "Breaking free" from the Constitution is not rhetoric I expect to hear from someone who cherishes and respects the American system of governance.

Judges can serve for decades, it can take longer than decades to reverse bad precedent, and the other branches of government are, for the most part, helpless to counter mandates from the bench. Thus, it takes decades or more of undoing to steer the courts back from even a single error of jurisprudence. Legislation in the courts is not really lawmaking at all — it is tyranny.

I believe our choice in this election is different than what it may seem to be on the ballot slip. We can choose adherence to our Constitution and the intent of our Founding Fathers. We can leave policy and lawmaking to the legislature, where those belong, or we can charter new powers for the judiciary that will fundamentally and irreparably upset the delicate system of checks and balances of our government.

To me, this election is not about Obama versus the Republican nominee. It is about Obama versus this great republic and its founders, Washington, Adams, Madison, Hamilton, Rush, and Jefferson. I would choose the Founding Fathers and the Constitution. Obama, it seems, would choose Obama.

© Steven Voigt