Free Markets, Free People

The “Constitution” Question

David Axelrod, Obama’s senior adviser talking about the appointment of a new Supreme Court Justice and the Constitution:

President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president’s stated preference for a nominee who will give the powerless “a fair shake.”

White House adviser David Axelrod said the U.S. Constitution, like any document of its vintage, must be subject to interpretation in a modern context.

“Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn’t possibly have anticipated all the questions that would be asked in the 21st century,” Mr. Axelrod said.

Barack Obama, today, talking about the prisoners at Gitmo and the Constitution:

But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall – the Declaration of Independence, the Constitution, the Bill of Rights –are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words – “to form a more perfect union.” I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience sake.

Per Obama’s speech, the Constitution apparently “anticipated all the questions that would be asked in the 21st century” when it comes to Gitmo. Yet there’s Axelrod, claiming it doesn’t cut the mustard when it comes to the job description or duties of a Supreme Court justice and implying we must turn our back on it for “expedience sake” and redefine the job (give the “powerless” a “fair shake” – the job of the legislature).

So, which is it?


29 Responses to The “Constitution” Question

  • “I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience sake.”

    He lies so eloquently.

  • So, has Obama read the 10th Amendment?

    Where in the Constitution is the government given the power to bail out corporations, fire CEOs, and otherwise engage in fascist economic planning?

  • Hypocrisy and falsehood, thy name is Obama, the unabashed Clown who wears the Emperor’s New Clothes.

  • Axelrod is wrong.  The Constitution most certainly DOES allow for all those pesky questions that will be asked in the 21st century:

    Article VIII – The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

    Amendment X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    In other words, for very major “questions”, the Constitution can be amended, as indeed it has been on several occasions.  For other questions… Well, the questions are intended to be answered by the people of the several states, as indeed they have been since before there WAS a Constitution.  Axelrod, like a typical statist, thinks that the federal government is supposed to control everything.  W-R-O-N-G.  It would be interesting to ask him how he thinks we’ve managed to muddle along for over two hundred years, or if the Constitution somehow managed to “anticipate” the questions asked in the 19th and 20th centuries, but sort of ran out of steam by the year 2000.

    As for TAO, he’s actually right.  Too bad he’s a liar and hypocrite who won’t follow his own strictures.

  • “When I use a word,” Humpty Dumpty said in a rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean different things.”
    “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

  • A note about TAO’s pick: I’ve read that he’s leaning toward nominating Wood because she’s supposed to be the brightest of the potential picks and could bring liberal intellectual firepower (is there such a thing?) to counter Mr. Chief Justice Roberts and Mr. Justice Scalia.*  The thing is, given the liberal penchant for viewing the Constitution as a “living document” that pretty much means whatever they want it to mean on any given day, why do they even need intellectual firepower?  All they need is for a liberal stooge to use “empathy” to discover that (gasp!) the Constitution forbids what they want it to forbid and allows what they want it to allow.  Any idiot can do that.


    (*) Not only is this a tacit admission that the brains of the court are conservative and that conservative presidents have done a (slightly) better job of choosing qualified justices than their liberal counterparts, but it is also a slap in the face to the other justices as it strongly implies that they aren’t smart enough to keep up with Roberts and Scalia.

  • I know I’m not as esteemed in book learning and stuff like our resident pal from Maine or our Teleprompter in chief, but I was always under the impression that the constitution- and the Bill of Rights in particular – was done the way it was in order to ” give the powerless a fair shake”

    So I’m not sure what exactly they want to overlook or change in here.

  • “President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a ‘preventive detention’ system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried,” Sheryl Gay Stolberg writes in The New York Times. “The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting dismayed.” 

    “Obama was succinct about his reversal, according to one person at the meeting, who spoke on condition of anonymity because the meeting was private: ‘He said, “I was a constitutional law scholar. Now I’m commander in chief,” ’ ” per The Boston Globe’s Joseph Williams

    Now he is a goof.
    Perhaps he forgot about this part of the Constitution (since he gave up being a “constitutional law scholar”) ..

    The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
    Anybody seen any “rebellion or invasion” ?   Thought not.

    • Yeah, harkens back to the days of Lincoln and the “rebellion”.

      But of course you know, his supporters will say, he would never have someone arrested who wasn’t a real threat to our nation. 

      “Suspects” – What a lovely and useful word.
      (and now friends, imagine, if you will, the circus that would commence, given that same response, coming from Bush supporters if Bush were still in office – how many days on the front page of the  New York Times, above the fold, do you suppose that would be worth?)

    • From the Globe article:

      “…his decision to restart military tribunals for some detainees – the same justice system Obama, a former law lecturer, condemned as a candidate and promised to eliminate as president. Obama was succinct about his reversal, according to one person at the meeting, who spoke on condition of anonymity because the meeting was private: “He said, ‘I was a constitutional law scholar. Now I’m commander in chief.’ “

      To me, that seems to indicate that he has only changed his mind because now he is the one who has the power of the office. So that caused a fundamental shift in his belief system? Or is it because now he will be held accountable for actual actions, instead of just words?

  • The principles endure.  Their application depends on the context.  No contradiction, just common sense.   For instance, the constitution did not anticipate the US becoming a world power, globalization of the world economy, and a host of conditions.  You have to interpret the principles in order too apply them to the context.  There is no other way. 

    • NO you clown.
      It doesn’t Fing matter if we’re a world power or NOT.  You don’t suspend Habeus Corpus unless you’re at WAR or in the middle of an armed insurrection and even THEN you don’t do it lightly.
      The ability to randomly round people up because they ‘might’ be prepared to cause the country a problem is….good lord….what freaking country do you come from?

      And that applies to ANY American President in any administration, Republican, Democrat, Empire of Jeff or Empire of good king Looker!

    • What other principles are you willing to sacrifice – I mean….after all, screw that the principles should be the same, world power or NOT, the freedoms and rights that are endowed by the creator remain the same, regardless of stature of your nation.
      The fact that we ARE a world power should make us endeavor to be MORE strict about preserving them, NOT LESS.

    • PLEASE, for the sake of the nation, and our children, take up teaching MATH or perhaps cooking and stay away from political science.

    • And exactly what principle enshrined in the Constitution do either of those things contradict? How do either impact the principles behind habeas corpus, for instance?

      They might have possibly affected something like some of the Founders fondness for isolationism, but not their understanding of basic human rights, the need to decentralize power and to protect the citizenry from the state’s use of such power. These things are universal and timeless, and quite clear in meaning without any need for creative interpretation.

    • Erb is a master of the webbed-foot platitude.

      Just for starters, there already was a global economy at the end of the 18th Century. The Constitution prohibited tariffs on exports. Washington’s Farewell Address didn’t counsel isolationism, it counseled maximum commercial relations with foreign countries while avoiding their wars. The United States was fully an international country at its birth, concluding a vital treaty with France before the end of the Revolution. Hamilton set up the national government’s international fiscal viability with the assumption and funding of the war debt from individual states and was able to get the Dutch to invest heavily in the debentures he created.

      But wait, Erb is a political scientist teaching at an American university with a PhD, so I must not know what I’m talking about. 

    • Can you provide a specific example? Even if you have to make it up. You must be assuming something I’m not, because what you claim is common sense makes no sense to me. It’s possibly just a communication problem, so an example would be great.

    • That’s right Erb. Spoken like a man who has no principles.

    • This is utterly meaningless. Literally. I have no idea what you mean.  I’ll bet your students who don’t think find it to be utterly compelling however.

      • Well, Grimshaw, let me try to help in your education.   The Constitution has principles upon which the government is based, and which should not be contradicted.   If a principle turns out to be one that people no longer agree with, the constitution can be amended.  However, applying principles to context is where things get tricky.  Thou shalt not kill.  OK, that means no Christian can be a soldier, right?   But then there is the context — it’s war, if you don’t kill they will kill you and your family, it’s not the same as murder, etc.  Context  matters in the application of principle; context changes the nature of an act.

        Simply, there is no contradiction between believing the principles can not be violated, but recognizing that there is difficulty in applying principles correctly to various contexts.

        • Can you use an example that’s within the Constitution? I appreciate the example, but using a religious dictate instead of a constitutional principle is contributing to the confusion. The context is the Constitution, which does anticipate changing views by providing for an amendment process. The Bible doesn’t provide an amendment process.

          • Example from the constitution: the entire bill of rights.    Think about it — does everyone have the right to completely free speech, to bear any kind of arm they want (or to be limited to the arms that would have been around in 1789), etc.  What about the issue of power in foreign policy — the Constitution is clear that it favors Congress, but in context the principles have been defined to allow more Presidential action.  I mean, what I’m saying isn’t even controversial — if you study Con Law, you learn this right away.

          • Ah, thanks. Sorry, I just misunderstood your original comment. I thought you were rebutting McQ’s entire post that the administration was playing partisan politics with contextual applications of constitutional principles. But you were agreeing that they were using contextual applications, while not commenting on the partisan nature of those applications. My assumption that you were rebutting the entire post made me think you were saying partisan politics wasn’t involved.

  • Per Obama, the Constitution apparently “anticipated all the questions that would be asked in the 21st century” when it comes to Gitmo.

    Help me out here, McQ.  I’ve read the article you linked to and I didn’t see anything about “anticipated…”  I’ll admit that I haven’t watched his speech today nor have I read any transcripts, I’m just not in the mood (heh, I’d rather ask you).  Is this “anticipated…” quote of yours an interpretation, or did he say it.  That would be a pretty ridiculous thing to say.

    If it is your interpretation, then from what you’ve posted here, I must say it is a liberal one.  It’s one hell of a jump from,”turn our back on its enduring principles for expedience sake” to, “anticipated all the questions that would be asked in the 21st century.”

    But hey, like I stated, I haven’t seen it or read any transcripts.

    Help me out here.


    • My goodness – usually when you try to pick a fight (“help me out here”) you do a much better job than this. And, usually, you at least appear to have read the post, unlike this time.

      Axelrod made the statement about it being mistaken to believe an old document could “anticipate” all the questions of the 21st century. He was making the argument, in support of Obama, that instead of a Supreme Court justice reviewing laws as they pertain to the Constitution and ruling on their Constitutionality, Obama seems to feel their job is to give “the powerless” a “fair shake”. That’s a political agenda, not a legal or judicial one. That’s also the job of the legislature.

      Obama gives a speech today in which he bases his entire condemnation of Gitmo on the Constitution citing it as “the foundation of liberty and justice in this country” and not “simply words written into aging parchment”.

      But that’s exactly what Axelrod is claiming – that they are “simply words written (‘no matter how brilliantly’) on aging parchment”.

      So which is it?

      If it is good enough as written to condemn what is going on in Gitmo in the 21st century as Obama claims today, why isn’t it good enough as written to outline the job of a Supreme Court justice (instead, for expedience sake, redefining it) in the 21st century?

      Does that help?


      • So… Umm…
        To the question that Obama stated, “anticipated all the questions that would be asked in the 21st century” to which you quoted, is a … umm… NO.  It is indeed a complete interpretation on your part.

        Fair enough.
        But I still don’t see how “the foundation of liberty and justice in this country” and “turn our back on its enduring principles for expedience sake” can be interpreted as “anticipated all the questions that would be asked in the 21st century.”  Those aren’t mutually exclusive.
        Very similar to an “interpretation in a modern context.” 

        “Principles,” and “Foundation.”

        But that’s exactly what Axelrod is claiming – that they are “simply words written (’no matter how brilliantly’) on aging parchment”.
        So which is it?

        Which is it!?  With, “Fidelity to the Constitution is paramount, …” Axelrod is claiming that the principles on which the Constitution were founded on, which is what Obama said, are merely words on an aging document?

        I think you may be parsing such words too sharply.  It would be handy for your argument if Obama had actually contradicted what Axelrod claimed.  It seems to me that Obama’s words are as broad of an interpretation, as your interpretation of Obama’s words are as narrow.

        Interpretaion, speculation, and conjecture.

        Does that help?



        • Parsing words too sharply? Heh … not at all. And Obama did contradict what Axlerod said. But what you have to remember is Axlerod was defending Obama with his words.

          Speaking of words, I noticed you left off the most important one after the Axelrod quote about “fidelity to the Constitution is paramount …”. That would be “but” … And that single word tells you Axelrod isn’t at all concerned with fidelity to the Constitution or he’d have ended the sentence at that point and prior to “but”.

          Ah, Pogue me lad, you’re gettin’ soft in yer old age. You’re too willing to give these pirates an inch when it’s a mile they’re wanting.


  • If they really wanted to give the “powerless” a fair shake, they’d offer government insurance that would pay lawyers fees – at a nationally established rate.  After all, isn’t everybody offered _equal_ protection under the law?  Is it fair that only the wealthy can afford good lawyers?  Aren’t we _all_ entitled to good legal advice?

  • People differ on how they apply principle, but I think both  sides (well all sides — there are more than two sides) are honest — they have different interpretations of how principles relate to context.   My own preference is for very little judicial adventurism in applying principle to context, either by the left or the right.  That means I don’t like judicial activism, and personally would try to avoid partisanship.