I’m grateful for the favor Obama did for us yesterday of exposing his extreme constitutional ignorance, with his comments on how it would be “unprecedented” for the Court to strike down a law passed by a “strong majority” in Congress. (As if a House margin of seven votes is a “strong” majority.) True, he walked back the comment today, but surely because his statement was not merely indefensible but outright embarrassing to his media defenders.
I’ve been growing weary of hearing people mention that he’s a “constitutional scholar,” since he never published a single thing on the subject either as editor of the Harvard Law Review or as a member of the faculty at the University of Chicago Law School. But hey—he taught constitutional law, didn’t he?
His course on constitutional law, one of several constitutional law courses on the U of C curriculum, dealt exclusively with the equal protection clause of the 14th Amendment—the favorite, all-purpose clause for liberal jurists to use to right wrongs and make us more equal by judicial fiat. There is no evidence that Obama ever taught courses that considered other aspects of constitutionalism, such as executive power, the separation of powers, the Commerce Clause, or judicial review itself.
I have a copy of one of his final exams. It is a long hypothetical involving civil rights, which begins thus:
In part, Hardsville’s racial isolation is the result of white flight and the limited economic means at the disposal of the black community. It is also well documented, however, that Hardsville’s racial isolation arose in part due to decisions by a white-controlled city government prior to the seventies that were purposely discriminatory.
So you can see what kind of “narrative” this exam question promotes, and hence the kind of answers likely to get an A from Professor Obama. One of the questions students are asked is, “What is the likelihood that the city will be held liable for violating the constitutional rights of blacks under the Equal Protection Clause. . .” There’s a second hypothetical involving potential gender discrimination under the Equal Protection Clause.
A law student in Professor Obama’s class would learn virtually nothing about the constitutionalism of the Founding, or even of John Marshall or Joseph Story.
Now, clearly Obama is hoping to intimidate the Court in the same way FDR did in 1937 with his court-packing scheme. Some time later I’ll discuss FDR’s extraordinary rhetoric attacking the Court that year, but suffice it to say for now that Obama already showed his hand with his inaccurate attack on the Citizens United decision in the State of the Union speech two years ago. As John Steele Gordon put it well, “It seems there is simply no lie President Obama will not tell in pursuit of his agenda.”
Notwithstanding the fact that Justice Alito could be seen mouthing the words, “Not true,” the Supreme Court by its traditions does not hit back at the President or Congress in these kind of brawls. But thank goodness for the Fifth Circuit Court of Appeals, which today rather tartly demanded that the Justice Department please explain, in at least three pages, within 48 hours, its understanding of judicial review. This should be interesting. Here’s a copy of the follow-up letter from the court:
UPDATE, GREAT MINDS DEPT: So, this is what happens when you operate a virtual editorial board–John and I work on the same subject at the very same time! His post immediately above. Egads–the Federal Election Commission might consider this “coordination.” But it’s really more like Hayek’s “spontaneous order,” so get out of here!