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April 3, 2012
SCOTUS meets Chicago style politics
President Obama's Rose Garden remarks yesterday on the Supreme Court are shameful, a blot on his presidency.
As a purported constitutional law lecturer, President Obama is fully aware that laws passed by democratically elected majorities (that's how laws are made) are overturned by the Supreme Court on a regular basis. His claim of a sizable majority is false when it comes to the House, where the margin was very close. But the size of the majority has no relevance, nor does the fact that the law in question was passed on a purely partisan basis with no Republican votes make any difference either.
Because the Harvard-educated lawyer knows all this, the words "unprecedented" and "extraordinary" are lies.
This is willful redefinition of judicial activism, which refers to inventing new law from something other than the actual words of the Constitution. As Richard Viguerie and Mark. J. Fitzgibbons remind us, the Constitution is the law that governs the government. Laws are unconstitutional when they exceed the limitations placed on the government by the people, through the Constitution. The law restrains the government, as the civil and criminal codes govern us. Overturning a law on that basis is not activism, it is law enforcement. Overturning a law because of some imagined right discerned not in the text but in an invented doctrine such as a penumbra does count as judicial activism. Obama knows this.
I must conclude that the only reason why President Obama would so egregiously lie is to send a message to the Court that if it displeases him, he will appeal to the segments of the American public utterly ignorant of the Constitution and not really paying close attention to the news. And he will in effect tell them that the Court isn't really legitimate. This is a Chicago-style "if they bring a knife, you bring a gun" threat.
The Justices know very well that they depend on consensus acceptance of their rulings. What if certain segments of society began to characterize the Court as illegitimate? The prospect of a president whipping up a segment of his base against the court's authority is, to use Obama's much-abused word, extraordinary. In the wake of liberal activist ruling, the talking heads always remind us that we must respect "the rule of law" when the Court invents law.
FDR's failed court packing adventure when faced with a reluctant court didn't incite the mob in a challenge to the court's legitimacy itself so far as I know. It was a proposal for legislation to enlarge the Court, a modification of the institution, not an implicit threat to challenge the institution itself.
Jon Meacham of TIME, no Conservative, cautions Obama:
Don Surber thinks Obama is making himself look ridiculous:
Michael Walsh of NRO sees Obama as unable to deal with the word "no."
Jeannie DeAngelis comments:
Obama must have been winging it in the Rose Garden. His delivery was slow, and it appeared that he was groping for words. He went with his Alinsky gut instinct, hitting those who stand in his way below the belt. It was not a wise decision.
I await the reaction of left wing law professors. Will any actually defend Obama's lies?
Update and bump:
Herb Meyer points out that if the president is correct, then Harvard Law School is incorrectly teaching constitutional law. Surely the dean ought to be questioned about this. So should every educator
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