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Farewell to Lawlessness

eye on the news

Farewell to Lawlessness

Hopefully, Obama’s view of the Constitution will follow him out of the Oval Office. January 11, 2017
Politics and law

The media spun President Obama’s Tuesday night farewell address as a call to unity. But the speech’s setting and Obama’s words about the Constitution were a reminder of how his presidency deepened divisions within the nation. In the modern era, presidential farewell addresses have been delivered from the Oval Office, a symbol of the president’s role as head of state. Obama’s speech, by contrast, had the feeling of a campaign rally. He seemed more like a party leader than a president.

Much of Obama’s speech was a restatement of Democratic positions on inequality, climate change, and race. His comments about the Constitution, however, were troubling:

Our Constitution is a remarkable, beautiful gift. But it’s really just a piece of parchment. It has no power on its own. We, the people, give it power. We the people give it meaning—with our participation, and the choices we make. Whether or not we stand up for our freedoms. Whether or not we respect and enforce the rule of law.

With just a few sentences, Obama demonstrated the incoherence at the heart of the philosophy of the “living Constitution.” According to this view, shared by Obama, the Constitution’s meaning wasn’t fixed at the time it was enacted, but is determined by the whims and preferences of twenty-first-century Americans. If that is the case, how can we possibly have the rule of law? If that is the case, our freedoms are not protected from ordinary politics but determined by them—a recipe for endless social division, as different parties try to substitute their preferred vision of rights for those in the Constitution. Only if the meaning of the Constitution transcends those divisions can it serve as the nation’s anchor.

Obama’s encomium to a Constitution with no core was a fitting coda to a presidency that never respected the rule of law. His argument that Supreme Court justices should decide cases based in part on empathy was an invitation to lawlessness. One of his appointees, Sonia Sotomayor, accepted the invitation. In Schuette v. Coalition to Defend Affirmative Action, she claimed that the state of Michigan’s ban on affirmative action violated the Fourteenth Amendment’s Equal Protection Clause. Thus, for Sotomayor, a law that mandated equal treatment with respect to race violated a constitutional provision mandating equal treatment. She arrived at this conclusion because of her empathy for those benefitting from affirmative action.

With his executive orders, Obama also flouted the Constitution. His immigration order suspending deportations and allowing millions of illegal aliens to obtain work permits was precisely the kind of extra-legal maneuver favored by Stuart monarchs. The Take Care Clause of our Constitution was designed to prevent such abuses. In important instances, Obama overrode specific provisions of the Affordable Care Act in order to keep it politically viable. Our system of checks and balances is designed to require compromise between Congress and the president. But after the Democrats lost control of Congress in 2010, Obama resorted to governing with his pen, rather than by persuasion.

Sadly, presidential lawlessness is often contagious, as successive occupants of the Oval Office cite the actions of their predecessors as justification for exceeding legal boundaries. Let’s hope that President Trump and congressional Republicans break with tradition and say farewell to the kind of constitutional division and lawlessness that Obama has entrenched in our politics.

Photo by Darren Hauck/Getty Images

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