March 13, 2008


Obama's Constitution: The rhetoric and the reality. (M. Edward Whelan III, March 13, 2008, Weekly Standard)

[I]n setting forth the sort of judges he would appoint, Obama has explicitly declared: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old--and that's the criterion by which I'll be selecting my judges." So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics. [...]

Obama's constitutional activism is particularly evident on the touchstone issue of Roe v. Wade. Obama calls abortion "one of the most fundamental rights we possess" and promises to "make preserving women's rights under Roe v. Wade a priority as president." He has harshly criticized the Court's 2007 ruling that the federal partial-birth abortion act (which was supported by broad bipartisan majorities in Congress, including abortion supporters like Senate Judiciary Committee chairman Patrick Leahy) is constitutionally permissible. [...]

Obama finds himself compelled "to side with Justice Breyer's view of the Constitution--that it is not a static but rather a living document, and must be read in the context of an ever-changing world." But no one disputes that the Constitution "must be read," and applied, "in the context of an ever-changing world." The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution's meaning willy-nilly--in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require.

A man who feels himself unbound by the plain meaning of the Constitution is manifestly unfit for the job of upholding it.

Posted by Orrin Judd at March 13, 2008 11:51 AM
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