Obama Brings Back the Constitution
Thanks to his executive overreach, Americans take a renewed interest in our fundamental governing document.
By William McGurn, WSJ Opinion, January 17, 2012
Conservatives can be a grudging lot. That's especially true when it comes to President Obama. Even where he's been in the right—whether it be killing Osama bin Laden or promoting charter schools—we can be stingy with praise.
So let us now, in full public view, credit his greatest public service as president: He is sending Americans back to the Constitution.
Yes, in the Bush years the air was also thick with accusations that the Constitution was being "shredded." We now know that the professed concern for the Constitution was fake. We know it was fake because the same Bush claims of executive authority in war that provoked such apoplexy in our pundits, professors and politicos have for the most part been embraced by Mr. Obama—all to the distinct sound of silence.
Today we have a wholly different order of constitutional complaint. Where the accusations against Mr. Bush were led by prestigious law faculties and law firms, those against Mr. Obama reflect a more popular hue. Where the indictments of Mr. Bush were largely limited to war policy, those against Mr. Obama's extend broadly to all areas of policy: foreign, economic and social. And where critics of Mr. Bush were obsessed with outcome, the discontent with Mr. Obama has been magnified by the uneasy sense that he is changing the fundamental rules of the game.
This awakening started with the tumultuous legislative path to Mr. Obama's health-care victory. Along the way, Americans watching were given an education in words like "cloture" and "filibuster," and saw the leaders of the Democratic House and Senate consider a maneuver whereby the House would "deem" the Senate version of the health-care bill to have passed without having to vote on it. That left a bad taste.
It proved only the beginning. Since then, Mr. Obama's aggressive disregard for any constitutional limit on what he wants to do has come to define his approach across the board.
On economic policy, he fills his White House with "czars" to manage important aspects of national policy without the burden of congressional approval. Similarly, he invokes a ridiculous notion of Senate recess to prevent Congress from asking any questions about the vast powers of the dubious new Consumer Financial Protection Bureau or its even newer leader. And the constitutionality of his signature achievement—the health-care law—is now before the Supreme Court.On foreign policy, his State Department hires a Yale Law dean who roared like a lion when the issue was President Bush's war powers but now offers the lamb-like justification for intervention in Libya on the grounds that the shooting there somehow did not constitute a war.
Meanwhile on social policy, the same Supreme Court, ruling 9-0, rejects as unconstitutional and labels "extreme" his administration's argument that the First Amendment does not protect a religious organization's right to choose its own leaders.
If these issues were confined to the law blogs and law journals, they would make for lively debate. Yet Mr. Obama's overreach has provoked something unique. This is the rise of a populist movement with the historically unpopulist priorities of making the federal government smaller and insisting on its constitutional limits.
The press has mostly missed this aspect of the tea party. Perhaps some find it impossible to take seriously the idea that ordinary men and women might have a valid take on the Constitution. Certainly the champions of a living Constitution have done their darndest to load up judicial decisions with whatever gets them to their destination, whether it be evolving standards of decency, foreign law, or the ever multiplying emanations and penumbras of constitutional protections. In this way Justices substitute their own opinion for the law, as William O. Douglas did in Griswold v. Connecticut, where he discovered a hitherto unknown constitutional right to privacy.
These all make constitutional disputes more complex. That complexity in turn contributes mightily to the conclusion that only the courts have the competence to decide them.
We are learning, however, that ordinary Americans who never before heard of the Commerce Clause are perfectly capable of grasping the argument that if the federal government can require a citizen to buy a product in the market, there's nothing he can't be forced to do. As Republicans head into their South Carolina primary, the preferred press narrative appears to be of a party riven by differences that are intractable. What this misses is the larger constitutional point on which Republicans are mostly united and by which so many are driven: that what's at stake in the 2012 election is the process our founders gave us for resolving these debates.
When it comes to the founding document of the U.S. government, many of its teachers must go through life struggling to find ways to make its dusty clauses exiting and relevant. You can say Mr. Obama probably will not like where a greater public familiarity with the Constitution is likely to take us politically. But you can't say the former University of Chicago professor hasn't made it exciting.