Wednesday, April 4, 2012

"Stunningly Ignorant of Constitutional Law"

America’s thinking class saw Barack Obama as a light shining in the wilderness.

In deep despair over the coarsening of public discourse during the Dark Ages of the Bush administration, American intellectuals saw Barack Obama as one of their own, someone who could restore their exalted social status and raise the level of deliberative democratic debate.

Obama hadn’t accomplished anything of note; he wasn’t really qualified for the presidency; but he was superbly intelligent, had presided over the Harvard Law Review, had professed Constitutional Law at the University of Chicago Law School, and had authored two brilliant books.

Intellectuals were so thrilled that they could barely contain themselves. They made it their mission in life to bring the gospel of St. Barack to the heathens and the gentiles, that is, to Republicans and independents.

Of course, it was a con. Obama was the only Harvard Law Review President who did not publish an article in it. He did teach some courses at the University of Chicago Law School but, as an adjunct. As for the books that he supposedly wrote, it is impossible that someone who has never published anything before or since, just sat down one day and wrote two bestselling books.

Working through the media and the classroom the guardian class of the American intelligentsia tricked the nation to believe that a pompous mediocrity was a great American thinker.

A few days ago the curtain was drawn and people could see that the Wizard of Oz was not what he claimed to be.

In an effort to get personally involved in Supreme Court deliberations over his signature piece of legislation—Obamacare—our president made it appear that he did not understand the most fundamental doctrine in American jurisprudence.

The former president of the Harvard Law Review, former professor at the University of Chicago Law review managed to mangle an explanation of “judicial review.” As every high school history student knows the doctrine was  adumbrated in 1803 by Chief Justice John Marshall in the case of Marbury v. Madison.

Obama asserted:

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.

As everyone but Obama knows, Marbury v. Madison established the right of the Supreme Court to strike down Congressional legislation that it deemed unconstitutional.

The Court has done just that on hundreds of occasions.

Not to quibble and not to make it seem relevant, but Obamacare was not passed by a strong majority of Congress; only Democrats voted for it.

Many, but not all, of Obama’s defenders are out defending him. He could not mean what he said, one law professor said, because then he would be opposing Roe v. Wade, Brown v. Board of Education, among others.

Judge Jerry Smith, for one, was not persuaded. Smith was presiding over a three judge panel in the Fifth Circuit Court of Appeals. The case in question involved an aspect of Obamacare.

Even after hearing the Justice Department lawyer declare explicitly her adherence to the precedent set by Marbury v. Madison, Smith gave her a homework assignment.

In his words:

I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed – he was referring, of course, to Obamacare – what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.

Graciously, Judge Smith gave the Justice Department the opportunity to repudiate the president’s words in writing.

Of course, this has put Obama’s supporters into something of a bind. They believe that Obama misspoke or that he was simply lying for effect. Otherwise their champion is, as James Taranto said, “stunningly ignorant of constitutional law.”

Think about it this way. Let’s say that a student is taking a test. He gets the answer to an easy question wrong. Do you think it fair for the teacher to decide not to mark down the student because he “must” know the answer to the question? Should the student get a good grade because he is so smart that he does not allow his mind to get tangled up in facts.

At that point, there are no more objective standards of judgment. Merit no longer counts. The free and open exchange of ideas is a relic of a forgotten past.

Right and wrong become trivial considerations when faced with the overwhelming ideological necessity to defend Obamacare.

Intellectuals are so upset by the questions that the Justices asked the government's lawyers that they have abandoned the notion of arguing the case on its merits. They have retreated into doing whatever you need to do in order to get your way. They declared culture war against members of the Supreme Court.

Some have declared Obama to be a mere Chicago thug. Since we are engaging in a national debate about bullying, I think it more correct to say that he is trying to bully the Court.

He has tried it before. In his second State of the Union speech he dressed down the assembled judges for deciding the Citizens United case in a way that displeased him.

We should emphasize that when our president engages in bullying tactics he sets a very poor example for children. He is telling them that if they cannot win an argument fairly they should try to bully their opponents into submission.

Of course, Obama’s staff informed him that he had made a muddle of the idea of judicial review. So, yesterday he sought to clarify his remarks. It would offer him a good way to demonstrate his command of constitutional law, don’t you think.

Taking full advantage of the crack White House legal staff Obama came up with this:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

To which James Taranto replied:

Obama seems to have been trying to make the accurate observation that since the '30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress's Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the "liberty of contract," which the court held was an aspect of liberty protected by the 14th Amendment's Due Process Clause. (The legal doctrine at issue, "substantive due process," refers to the meaning of "life, liberty and property" under the Due Process Clause.)

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law--contrary to the president's claim--and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

It's appalling that any president would have the effrontery to lecture the Supreme Court about a pending case. It's astounding that this president, who was once a professor of constitutional law at an elite university, would do so in such an ignorant fashion.

It isn’t the first time that Obama has weighed in on the Lochner case or on the Lochner era. He did so in 2005 when he was a United States Senator.

Did he do a better job then? Apparently, not.

Writing on the Volokh Conspiracy law professor David Bernstein did a thorough analysis of Obama’s previous remarks about Lochner, and found a large number of misrepresentations, misunderstandings, and plain ordinary ignorance.


Dennis said...

It does sam that most people run for public office whereas Obama ran for emperor. From what I see of the syllabus for the class Obama taught it is mostly about race.

If Obama was such an expert on Constitutional Law why was he not awarded a position on the faculty? It would be interesting to see Obama's grades even given the grade inflation handed to many minorities.

If the elites/intellectuals have come to this then they elite/intellectuals are not very elite/intellectual.

Dennis said...

SEEM not sam. I think I am going to have to change the font size for the little box one has to type in.

JP said...

He could always try to pack the court with 7 or 10 or 20 new judges.

There are lots of people who would like to be Supreme Court judges out there.

Dennis said...

Despite Lawrence Tribe's typical groveling to Obama, how can any president, especially if he was born in this country and went to our "public" schools, not know about judicial review?

Stuart Schneiderman said...

I was waiting to hear what Tribe had to say about a man he had declared to be one of his great students. I only hope that Tribe does not grade his students on the basis of what he thinks that they must know.

For the record, I was just looking through some remarks that Chicago Law Professor Richard Epstein made about his encounters with Obama when they were teaching there.

Epstein found Obama to be arrogant, incurious and disengaged, unwilling to discuss or debate ideas with his colleagues. Not the kind of person who was willing to participate in the marketplace of ideas.

Dennis said...

It would appear that Obama taught CON Law III, which was basically about the 14th Amendment. Given Roe v. Wade, et al it makes it more interesting that Obama gives the impression of not knowing about judicial review, something that has been part of our legal structure since 1803.
I wonder whether his students could ask for their money back?

David Zincavage said...

Mr. Schneiderman also committed a gaffe. John Jay stepped down as Chief Justice in 1795. John Marshall headed the Court that decided Marbury.

Stuart Schneiderman said...

Thank you, David. I have corrected the misinformation in the body of the text.