Here’s Barack Obama’s response to John McCain’s constitutionalism. Now, it’s too much to ask a campaign war room to be thoughtful and nuanced, but notice the revealing emphases--"social and economic justice" and the role of judges to "fend for" "ordinary Americans." I don’t dispute the latter, when constitutional rights are involved, but the Obama campaign--unsurprisingly, of course--is curiously indifferent to that document.
And I can’t but note that the first thing mentioned is "a woman’s right to choose."
MOJ’s Rob Vischer offers a half-hearted defense of Obama, pointing to this account of this speech. I find his choice unfortunate, not because of the passage upon which he seizes (yes, judges are individuals, and some small percentage of cases will call for an equitable, rather than constitutional judgment), but because of these lines:
We know that five men don’t know better than women and their doctors what’s best for a woman’s health. We know that it’s about whether or not women have equal rights under the law. We know that a woman’s right to make a decision about how many children she wants to have and when—without government interference—is one of the most fundamental freedoms we have in this country.
The first line alludes to the absolutism of the health exception, an exception big enough to permit any abortionist to perform any abortion he or she wants. The third line endorses abortion as a form of birth control. No wonder this speech isn’t available on the campaign website; it’s too revealing.
Actually I can’t resist citing more chunks of this speech. Consider this one:
I put Roe at the center of my lesson plan on reproductive freedom when I taught Constitutional Law. Not simply as a case about privacy but as part of the broader struggle for women’s equality. Steve and Pam will tell you that we fought together in the Illinois State Senate against restrictive choice legislation—laws just like the federal abortion laws, the federal abortion bans that are cropping up.
Obama’s constitution is about maximizing freedom and equality, regardless of any qualifications or specifications its words might contain, and regardless of the responsibilities given the particular branches.
He elaborates this view here, in the passage quoted in the article on which Vischer relies:
I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. That’s one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. [Laughter] You know, he’s good to his dog. [laughter] He’s so well qualified.”
I said, well look, that’s absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.
But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And 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 criteria by which I’ll be selecting my judges. Alright?
Shouldn’t the "broader vision of what America should be" be argued on the campaign trail and enacted in the legislative process, rather than argued on the campaign trail and imposed by judges?
For what it’s worth, Rick Garnett responds to Vischer’s argument in ways similar to what I just proposed. I’d say great minds think alike, but I’d be only half right.