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Obama as a Constitutional Scholar:

Last week, I praised Obama's display of knowledge in his infamous 2001 interview about the Constitution and redistribution when he was a state senator. It was impressive. But when you run for president, I suppose you wind up saying silly things like this about California's Proposition 8:

"I've stated my opposition to this. I think it's unnecessary," Obama told MTV. "I believe marriage is between a man and a woman. I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about." "Usually, our constitutions expand liberties, they don't contract them," he added.

So, according to Obama, once a court "expands" liberty through judicial interpretation (as the California supreme court did re gay marriage, leading to the movement to pass Prop. 8), that should be the end of the matter? I don't suppose Obama thinks Lochner shouldn't have been overruled? How about the federal income tax, a threat to individual liberty if there ever was one, declared unconstitutional in 1895 and reinstated by constitutional amendment less than 20 years later? Better yet, how about Dred Scott, which expanded the "liberty" of slaveholders, by allowing them to bring their slaves into federal territory? That particular liberty was "contracted" by the Thirteenth Amendment, wasn't it? Sure, we can quite property say that the liberty of the slaveholder wasn't a "true" liberty, but that's what opponents of gay marriage think too, no? And if gay marriage is a "true" liberty, worthy of protection by the California Constitution, shouldn't Obama be for it?

That's not to say I'm for Proposition 8, but to claim that one is against gay marriage but also against Prop. 8 because of some bizarre notion that expansions of constitutional liberty should never be repealed strikes me as political double-talk not worthy of former constitutional law professor Obama.

In fairness to Obama, though, what he said about Prop. 8 isn't all that different from the Supreme Court's implicit rationale for overturning Colorado Amendment 2 in Romer v. Evans. On the other hand, Romer is one of the most poorly reasoned, muddled, incomprehensible modern Supreme Court opinions I have ever had the misfortune to come across.

YabbaDabba:
Obama (and any other Democrat with national aspirations) has been in a bind with this gay marriage business. On one hand, it's clear that the principles of equality and equal protection Democrats believe in demand support for gay marriage; on the other hand, it's such a political hot potato because of the conservative wackos that it becomes an immediate liability to present a full-throated endorsement of gay marriage. Thus, incomprehensible attempts to square the two positions.
11.2.2008 11:55pm
MisterBigTop (mail):
Not one of his finer moments. He should respond to future questions on this topic by saying that it's an issue for Californians to decide, so he has no position on the amendment. That's a perfectly legitimate answer that doesn't raise questions of how consistent his position on gay marriage really is.
11.2.2008 11:59pm
David Warner:
Yabba,

"it's such a political hot potato because of the conservative wackos"

So roughly half of the state of California consists of conservative wackos? Add in the liberal wackos, the leftist wackos, and the independent wackos, and you may well be the last sane one left. Good thing we're here so you don't get lonely.
11.3.2008 12:12am
OrinKerr:
So, according to Obama, once a court "expands" liberty through judicial interpretation, that should be the end of the matter?

David, I don't think Obama's answer was very good, but as best I can tell he didn't actually say that.
11.3.2008 12:14am
DavidBernstein (mail):
Orin, Obama is about as good as anyone I've ever seen at saying a lot of words without actually expressing an opinion, which is why neither you nor I could discern from that 2001 interview what his views on creating welfare rights through the Constitution are, beyond that it's impractical.

What I wrote is the clear implication of what he's saying. You might say, no, he's only applying this to gay marriage because it "involves someone who cares about someone", not just any liberty. But if that's true, and this is an especially important issue, then Obama should be for gay marriage. If it isn't an especially important liberty interest, then the only reason Obama provided to be against the constitutional amendment is that in America, our constitutions expand liberty, and don't contract them.
11.3.2008 12:22am
Randy R. (mail):
This is what Obama said: "But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about." "Usually, our constitutions expand liberties, they don't contract them," he added.

He said nothing about court cases that interpret the constitution, so your comments about Lochner and Romer are way off point. Prop 8 is not a court case, or an interpretation of the constitution -- it's a proposed *amendment* to the actual constitution itself.

Furthermore, it is true that our constitutions usually expand liberties, and don't contract them. The entire Bill of Rights is mostly prohibitions on what the gov't *cannot* do. (Yes, much of the US constitution is about the structure of gov't, but it is carefully balanced to insure that no one branch becomes stronger than the other two.)

So what is exactly so strange about Obama's comment? If you can point out the examples of the US or CA Constitutions that actually limit liberties and compare them with the parts that protect or expand liberties, what would the score card be like?
11.3.2008 12:22am
YabbaDabba:
No, you miss my point. Conservative wackos have demonized gay marriage (see, e.g., higher # of divorces, families will fall apart, gays will marry straights, gays will marry horses, straights will marry zebras, etc.) - all demonstrably false (see, e.g., Massachusetts, the Netherlands, Canada), to the point where voters actually believe this garbage. The people voting for Prop. 8 aren't wackos - they have just been misled by theocratic imbeciles.
11.3.2008 12:22am
DavidBernstein (mail):
He said nothing about court cases that interpret the constitution, so your comments about Lochner and Romer are way off point. Prop 8 is not a court case, or an interpretation of the constitution -- it's a proposed *amendment* to the actual constitution itself.
Prop 8 itself is attempting to reverse a court case that interpreted the Constitution. Romer was a court case involving an Amendment to Colorado's Constitution passed by referendum, just like Prop. 8 will be if it passes. Lochner is somewhat on point because the Court there expanded the constitutional protection of liberty, just as the California Supreme Court did. The slavery and income tax examples are almost directly on point, except that in Dred Scott the Court focused on property rights, not liberty, and in the Income Tax Cases, only Justice Brewer's concurrence focused on the individual rights aspect of the case as opposed to whether Congress had the relevant power. Still, those cases expanded liberty as defined by people at the time, and were overruled by amendment, making them at least analogous to the gay marriage situation in California.
11.3.2008 12:27am
Michael Kessler:
Following Randy R., your comments seem way overdetermined. He said, as you quote: "But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about."

The important phrase that should guide your interpretation is "just to prohibit." He seems to be claiming that this instance of changing the constitution--for something like regulation of who can marry another--is something that he thinks is insufficient/inappropriate as a justification for constitutional amendment. There is simply nothing in what you quote from Obama to justify your conclusion that he has stated a blanket, universal rule about all constitutional amendment.
11.3.2008 12:29am
OrinKerr:
David,

Thanks for the response, but I do not think that is the clear implication of what he is saying. You might have an argument for why that is a plausible implication of what he is saying if you assume he is speaking in a principled way and has given the full extent of is arguments. But given that he is running for President, such an assumption seems unwarranted. (In particular, do you really think he is against gay marriage? Presumably he strongly favors gay marriage but has calculated that he can't take that position at this time.)
11.3.2008 12:29am
gattsuru (mail) (www):
No, what he actually said was far, [i][u]far[/u][/i] more frightening. Specifically :
[quote]"Usually, our constitutions expand liberties, they don't contract them," Senator Barack Obama[/quote]

I'm not a constitutional scholar, but last I checked, a good majority of the Constitution of the United States and even Constitution of Illinois is rather focused on stating what powers the government can hold. I normally defer to those with more experience and training on a matter, but I think this rather clearly violates the spit-test metric.

I find it rather disturbing that a Constitutional scholar running for the position of the President of the United States believes that a written text is or should be a creator or expander of the borders of liberties owned the people. That he simultaneously believes the Second Amendment to mean effectively nothing is even more frightening.

There are a lot of interpretations of what Obama meant to say -- I think the man's a good deal more intelligent than that particular sound bite suggests -- but the wording says that the Constitution and State Constitutions should only make new liberties. It's hard to interpret the words any other way than to say 8 shouldn't happen because the Amendment process should not be used to limit individual liberties.

There are a lot of reasons to oppose or support 8 (I personally would not vote on the matter and will not vote on similar ballot initiatives), but that viewpoint is not only historically questionable as far back as the ratification of the 11th amendment in 1795.
11.3.2008 12:31am
DavidBernstein (mail):
In particular, do you really think he is against gay marriage? Presumably he strongly favors gay marriage but has calculated that he can't take that position at this time.
Orin, that's why I said it's political double-talk. It's an obviously stupid theory as to why one should or should not support any given amendment overturning novel judicial decisionmaking done in the name of liberty, and Obama is not a stupid man, and is not given to having stupid constituional theories. So of course he's trying to find a way to oppose Prop. 8 while still officially opposing gay marriage. He just didn't pull it off in a way that makes any sense.
11.3.2008 12:35am
DavidBernstein (mail):
He seems to be claiming that this instance of changing the constitution--for something like regulation of who can marry another--is something that he thinks is insufficient/inappropriate as a justification for constitutional amendment.
I agree. But if this particular right--to gay marriage-- is SO important that it can't be amended by a vote of the California public (who amend the state Constitution by referendum fairly often, as I recall), even though it's only existed for a few months then he obviously should be FOR gay marriage. Look, why not just admit that Obama is a politician in a tough stop who is trying to keep his pro-gay voters while also reassuring those opposed to gay marriage, so he tried to bluff his way through the question, badly.
11.3.2008 12:38am
gattsuru (mail) (www):
And... wrong encoding. :sigh:

I should clarify that I'm also of the viewpoint that rights, liberties, and individual powers exist and are 'expanded' regardless of what is recognized by the Constitution or the laws. All the Constitution can do is protect such things. Given the 10th Amendment, I believe that's a rather accurate interpretation.

Mr. Kerr, I'm not quite sure how you can interpret the statement "Usually, our constitutions expand liberties, they don't contract them" as anything but suggesting a stance opposed to legislative limitations on the judicial power, in situations where the judicial power has stated and protected a liberty. That's obviously incorrect, but that doesn't change the man's statements.
11.3.2008 12:40am
OrinKerr:
David,

If your argument is that Obama gave an answer to MTV that wasn't really coherent from the standard of a constitutional scholar -- and that he presumably knew his answer wasn't particularly coherent under that standard -- then I agree. But my point was simply that Obama didn't actually say what you claim he did.
11.3.2008 12:42am
OrinKerr:
gattsuru,

I would like to respond to your question directed to me, but I do not understand your question or even your characterization of my position.
11.3.2008 12:44am
Nathan_M (mail):
I agree Obama is in an awkward position over proposition 8, because a substantial number of Democrats support gay marriage while a majority of the country still opposes it, and he seems to be a typically spineless politician who doesn't want to offend either group. That said, I think he has staked out slightly firmer ground than you give him credit for.

Obama is not saying that the constitution ought not be amended if judges interpret it in a way the majority does not want. If that was all proposition 8 did (for example if it said "Nothing in this constitution requires that same-sex couples be permitted to marry") then his objection would not apply. But instead of taking that approach, and leaving the right in question to the regular political process, proposition 8 modifies the constitution specifically to deny a right. This is what Obama is suggesting is unseemly.

Take, for instance, the right to travel to foreign countries. This is obviously not a "'true' liberty" (in your formulation), because the federal government has the power to abridge this right -- as it has with, for example, travel to Cuba. Despite this, I expect most people (even those who support the travel ban) would oppose a constitutional amendment barring Americans from travelling to Cuba.

I would suggest there is no inconsistency in opposing this amendment while supporting the legislated travel ban. The constitution is special, and something can be a good idea as legislation but a bad idea as a constitutional amendment.

If, for some reason, the Supreme Court held the travel ban was unconstitutional, then I would suggest the appropriate way to overrule the court is to amend the constitution to clarify that the travel ban is constitutional; not to constitutionalize the travel ban.

So while I agree that Obama's position is not a particularly courageous one, I do not agree that there is any logical inconsistency in opposing gay marriage while also opposing a constitutional ban on gay marriage.
11.3.2008 12:44am
JB:
This is actually a substantive and cogent criticism of Obama. Although I think his statement is defensible, it does represent a view of what constitutional amendments are for that is troubling (or is a weasely way of saying "I am in favor of gay marriage" without saying "I favor gay marriage").

The point is, can we have another 10 of this post instead of the 10 "AyersKhalidiSDS" ones we've had?
11.3.2008 12:51am
Asher (mail):
In the first place, DB, Lochner's not an on-point example; he's clearly talking about amending constitutions, not overruling mistaken interpretations of constitutions. Dred Scott protected certain liberty interests that the Thirteenth Amendment overruled, but they were pernicious sorts of liberty interests, as I'm sure you'd acknowledge. Now, is that begging the question? Yes and no. Yes, opponents of gay marriage think that gay marriage is pernicious in some sense, but, unlike gay marriage, the right to bring your slave into federal territory conflicts with the liberties of others in a pretty major way. It isn't accurate to simply say that some people would argue that neither is a "true" liberty; one just isn't and the other, well, is - though whether it's a "true" liberty that we ought to recognize is another matter. So I don't see a contradiction with Obama's claim that "usually our constitutions expand liberties, they don't contract them." If anything ever expanded liberty, surely the Thirteenth Amendment did, and it's a little perverse to argue that it contracted slaveholders' liberties, as if its doing so undermines Obama's argument. I think your best example is the income tax, but I have a feeling that when Obama says "liberties," he's thinking about civil liberties, not freedom from taxation. Just a hunch.
11.3.2008 1:01am
DavidBernstein (mail):
Orin, you say that he didn't actually say it, but you haven't disputed that there are only two logical implications of what he did say: either he should be for gay marriage, or he thinks judicial expansions of liberty should always be permanent. Since he's against gay marriage, the logical implication left is the latter.

Nathan M, I think you need to distinguish between "The Constitution," and the California Constitution. The latter gets a lot less reverence, and a lot more amendments.
11.3.2008 1:03am
Mike& (mail):
"I've stated my opposition to this. I think it's unnecessary,"

That's one of the most anti-democratic statements imaginable.

If you're a citizen of the State of California, of course Prop 8 is necessary. After all, the California Supreme Court attempted to take the issue out of voters' hands. Their only remedy was the ballot box.
11.3.2008 1:09am
Mike& (mail):
I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about.

That sounds a lot like the "Get a life" argument I levy at people who sue over trivial Establishment Clause issues - like whether "under God" is included in the Pledge.

Really, you have nothing better to worry about than whether the Pledge says, "under God," or whether two gay people call their relationship a civil union or a marriage? Really? That's what you're devoting your life's work to?
11.3.2008 1:12am
second history:
Given the ambiguous nature of Obama's position, both the No on 8 and Yes on 8 sides are using Obama's comments (he has disassociated himself from the No on 8 campaign.) There also has been speculation that there will be an "Obama Effect" on Prop 8--that black voters in California will vote for Obama, bu given the culture of the black church will vote No on the proposition.

Interestingly, and similar to the possible reasons for Obama's position, the No on 8 advertising never mentions "gay marriage" specifically, while of course the phrase is all over the Yes on 8 advertising.
11.3.2008 1:12am
Mike& (mail):
"Usually, our constitutions expand liberties, they don't contract them," he added.

Right. And Prop 8 is expanding liberties. It's giving the people of the State of California the right to define who may get married. The courts attempted to take that right from the people.

If and when the will of the people changes, the people may vote to eliminate Prop 8.

Again, all Prop 8 does it vest in the people the right to determine who may get married. So it does expand liberty. It goes to the most fundamental liberty - the liberty of the people in a democratic society to direct its government.
11.3.2008 1:18am
Nathan_M (mail):
DB - I agree it is a right to distinguish between the federal and Californian constitutions, but I would suggest it is just a matter of degree. It is very difficult to amend the federal constitution so it deserves a great deal more reverence, but the California constitution should still be entitled to some smaller amount of reverence.

It seems to me that Obama's position is logically defensible (albeit extremely cowardly if, as I also suspect, he personally supports gay marriage) as long as one is willing to grant some reverence to the California constitution.
11.3.2008 1:19am
Bruce_M (mail) (www):
He's trying to say we shouldn't amend a constitution (let alone pass a law) to deny someone a right, liberty, or privilege that other people have. It's not that the constitution shouldn't be amended to overturn a supreme court case. It's that we shouldn't be limiting individual liberty. I could not agree more.

The same arguments used to justify segregation - maintaining purity and tradition - are the same arguments used to deny equal rights to homosexuals.

African Americans, who polls show overwhelmingly support gay marriage bans like Prop 8, should be ashamed of themselves. What's even more pathetic is the only reason they support is is because they've adopted the religion of their slavemasters and the white god whom they worship says homosexuality is bad (the same god that approved of slavery and arguably says black skin is the "Curse of Ham"). Christianity is the last remaining scar of the African slave trade. That African Americans are using the adopted religion of their former slavemasters to justify denying equal rights to other people is pathetic and shameful. The White God says it's bad so we're against it - praise be the White God! Hallelulah. It would be funny if it were not so degrading to those who suffered under slavery and harm the liberties of others.

The slave collars on their necks have been replaced with crucifixes. How can it not be degrading to not only adopt the religion of your captors, kidnappers, and tormentors, often with more vigor and enthusiasm than they have, but to actually pray to a god of a different race? As long as blacks pray to a white god, they are implicitly conceding they are inferior. unfortunate (I do not believe they are inferior, just to be perfectly clear).

But I know lambasting black Christianity is politically incorrect, so flame away.
11.3.2008 1:21am
DiversityHire:
the No on 8 advertising never mentions "gay marriage"

The "no on 8" campaign's circumlocution has reinforced the notion that the powers-that-be put one over on the people of california. I think an effective campaign would have personalized and celebrated the resulting gay marriages as testament to human dignity, rather than obfuscating the issue.

One radio spot lectures the listener that proposition 8 would have no effect on schools, teachers, or curricula. Then it cuts to a teacher and finishes by noting that the California Teacher's Association paid for the ad. It never mentions homosexuals. The spot totally reinforces the opposition's point that something fishy is going on. Given the fishiness of most CA props, that's not a bad bet to make; it's like having T. Boone Pickens on a prop-10 commercial going "prop 10 will not make me hundreds of gazillions of dollars, honest."
11.3.2008 1:44am
Bob Van Burkleo (mail):
Right. And Prop 8 is expanding liberties. It's giving the people of the State of California the right to define who may get married.

No, it contracts liberties - it says that some citizen's marriages should be ignored by the state, and it does so without any rationalization other than 'because we want to' making it in direct opposition to the ideas of innate rights such as life, liberty, the pursuit of happiness' and equal protection under the law.
11.3.2008 1:58am
Asher (mail):
Right. And Prop 8 is expanding liberties. It's giving the people of the State of California the right to define who may get married.

No no no. Californians already have that right; they can amend the Constitution at any time. Proposition 8 doesn't give them that right. It's an exercise of that right in a particular direction. Voting it down would also be an exercise of that right - just in a different direction.
11.3.2008 2:04am
Reg (mail):
We should just take our politicians at their word, and if their words aren't clear, we should assume they mean to say what we want them to say. Especially when they are the ONE.
11.3.2008 2:17am
CaDan (mail):
It's fun to watch the folks who wear the label of libertarians come out as really being Republicans.
11.3.2008 2:23am
eyesay:
A constitution is supposed to be a brief document outlining how a government is to be structured, plus a declaration of rights of citizens, guests, and subordinate levels of government. Constitutions are not the place for details like who cannot marry.* For all of the overwrought concerns expressed here, this moderate, reasonable position is really all Obama was saying. Sheesh.

* If a free society does choose to limit such rights, those limits belong in law, not in a constitution. Moreover, if a Supreme Court rules that such a law violates the Constitution, then that's just too bad for those who disagree, just as Heller is just too bad for those who disagree with that ruling.
11.3.2008 3:00am
Roger Schlafly (www):
Presumably he strongly favors gay marriage but has calculated that he can't take that position at this time.
Why? I presume that Obama favors Prop 8, but has calculated that he can't take that position at this time.
It's giving the people of the State of California the right to define who may get married.
Yes, that is right. We thought that we had that right when we passed Prop 22 a few years ago. But the court has erased that right, and only Prop 8 will restore it.
11.3.2008 3:11am
Nathan_M (mail):

Why? I presume that Obama favors Prop 8, but has calculated that he can't take that position at this time.


Probably because Obama wrote that:


...I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.



Or perhaps because his campaign spokesman said:


Senators Obama and Biden have made clear their commitment to fighting for equal rights for all Americans whether it's by granting LGBT Americans all the civil rights and benefits available to heterosexual couples, or repealing "Don't Ask, Don't Tell." Senator Obama has already announced that the Obama-Biden ticket opposes Proposition 8 and similar discriminatory constitutional amendments that could roll back the civil rights he and Senator Biden strongly believe should be afforded to all Americans.
11.3.2008 3:33am
Reg (mail):

A constitution is supposed to be a brief document outlining how a government is to be structured, plus a declaration of rights of citizens, guests, and subordinate levels of government.


Who says? Many constitutions from states and other countries go way beyond your structure.
11.3.2008 3:35am
Cornellian (mail):

It's giving the people of the State of California the right to define who may get married.


So you'd be fine with giving the people of California the "right" to prohibit interracial marriages? How about if they created a "separate but equal" legal vehicle for such relationships but called them "transracial unions" instead of marriages?
11.3.2008 3:36am
h0mi:
It's giving the people of the State of California the right to define who may get married.


Not exactly.

Prop 8 does not do this. The initiative process that put prop 8 on the ballot is what gave Californians the "right" to define marriage. The results will be based on whether 8 passes or not.

Hasn't obama come out against the "Defense of Marriage Act" at the federal level? It seems strange to me for a politician to state that they are against X, yet oppose every law that's proposed to restrict or prohibit X. (in this case Gay Marriage).
11.3.2008 3:37am
Maciej Stachowiak (www):
Mike&, you say that people who care whether gays can call their relationship a civil union or a marriage should get a life. But you seem to care quite a bit. You've stated that it's an important right of the people to decide what gays may call their relationships. Does that mean you need to get a life?
11.3.2008 4:17am
Brett Bellmore:

political double-talk not worthy of former constitutional law professor Obama.


Strikes me as EXACTLY the sort of political double-talk you'd expect of a former constitutional law professor who spent time on the board of the Joyce foundation.
11.3.2008 6:04am
corneille1640 (mail):

"Usually, our constitutions expand liberties, they don't contract them," he added.

As I read this quotation, Mr. Obama seems to be saying that constitutions "usually" expand liberties, not that they "always" expand liberties. If we are going to parse his words so closely, we might as well acknowledge that he said "usually" and not "always."
11.3.2008 7:27am
cboldt (mail):
I concur that Obama's comment is a form of double-talk. He's trying to mollify both sides of the issue.
.
My take on what the US Constitution did, as to individual rights, is contrary to the "constitutions expand rights" point of view. The US Constitution is a grant of power from the people and the states, creating and empowering a federal government. The powers of the federal government were to be limited, and certain aspects of that limitation were reiterated in the BOR. I particularly reject the view that the BOR is some sort of "grant" of rights.
11.3.2008 7:39am
runape (mail):
David,
Your post seems quite an unfair characterization of Obama's point. Your examples of slavery and the income tax are rebuttable on the straightforward ground that they involved the expansion of one group's liberties at the expense of another's. (I view taxes as an expansion of liberty, so long as they are reasonable. If you disagree, so be it.) Likewise, slavery "expanded" one liberty while contracting another.

By contrast, gay marriage does not contract anyone's marriage. The opponents of gay marriage are not arguing that their liberties have been contracted (unless you squeeze their argument into the painful-sounding "liberty to be free from knowing about the existence of gay marriage.") They are arguing that the state should not sanction gay marriage because they think it's gross, and it threatens the institution of the family. Those are not liberty-based arguments.
11.3.2008 8:20am
runape (mail):
Er - "gay marriage does not contrat anyone's liberties."
11.3.2008 8:21am
mls (www):
"I view taxes as an expansion of liberty, so long as they are reasonable."

Well, let us know when the government has given us enough freedom, will you?
11.3.2008 8:47am
cboldt (mail):
The broader "liberty" question is the extent to which the government should be empowered to enforce the "nuclear family" social norm. If all forms of "nuclear family" are equally valid, why the hostility, on the part of the law, toward polygamy? Why lower age limits on marriage? Seeing as the lower age limits are inconsistent among the states, they are clearly arbitrary - the lowest of the values is valid, is it not?
.
My general point is that casting the argument as one of "liberty" results in discounting the value of tradition. Looking ahead, there are at least "difficulties," and I see irreconcilable differences, with an approach that makes all traditions "equal," especially when Sharia and Western law are fused.
.
At some point, the legal argument in support of a certain position bottoms out on "just because." See US v. Reynolds, 98 U.S. 145 (1878) decision for a stark example.
.
there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
11.3.2008 8:48am
runape (mail):

"Well, let us know when the government has given us enough freedom, will you?"



You mean like national defense, a judiciary and well-maintained infrastructure?

In any case, the quote reads like Obama was trying to make the same case for a countermajoritarian interpretation of the 14th Amendment that has been discussed elsewhere in this blog. I fail to see what DB's problem is with that.
11.3.2008 9:09am
therut (mail):
OOOHHOOOOOOOOOOO! I love to do the little side step---now you see me now you don't.... Behold OBAMA the politician being deceitful.... How amazing. I support the 2nd amendment except I belive those in cities can have their rights curtailed as needed ....... Oh I do the little side step........
11.3.2008 9:45am
Anderson (mail):
As I read this quotation, Mr. Obama seems to be saying that constitutions "usually" expand liberties, not that they "always" expand liberties.

Corneille can read; DB can't. Are you a law prof too, Corneille?

-- On the merits of Prop 8, I liked the T-shirt quoted at Andrew Sullivan's blog: CAN I VOTE ON YOUR MARRIAGE?

Here in Mississippi, I think the only way we'll get gay marriage is if they're gay "covenant" marriages.
11.3.2008 9:48am
second history:
A constitution is supposed to be a brief document outlining how a government is to be structured, plus a declaration of rights of citizens, guests, and subordinate levels of government.

Ideally, but unfortunately the California Constitution is anything but brief with general principles. Gill netting, anyone?


CALIFORNIA CONSTITUTION
ARTICLE 10B MARINE RESOURCES PROTECTION ACT OF 1990

SEC. 4. (a) Notwithstanding any other provision of law, gill nets and trammel nets may not be used to take any species of rockfish.


And it goes on for eight sections. California has one of the worst special interest constitutions ever, and I say this as a Californian.
11.3.2008 10:17am
Kent G. Budge (www):

"Usually, our constitutions expand liberties, they don't contract them," he added.


I am bemused how many people, across the political spectrum, forget that the purpose of the original federal constitution was to [i]expand[/i] the powers of the federal government, which had proved too weak under the Articles of Confederation. Granted, the authors of the Constitution were very nervous about what they were doing, and tried to write all kinds of checks and balances into that constitution -- with considerable success.

But it wasn't originally about expanding liberties.
11.3.2008 10:24am
eddie (mail):
Professor Bernstein:

Indeed you are being quite obtuse. First you have the quote: "Usually, our constitutions expand liberties. . ." which then under your scholarly interpretation becomes "Once a court expands our liberties. . ."

You then proceed to create the ultimate straw man of the court without really dealing with the first assertion (or the substance thereof), namely, that the constitution (whether national or state) should be read as the boundary of the government, and that unless a right is specifically abrogated, should be read as including such rights. Wouldn't that be the "libertarian" construction. (And I dare say an originalist construction.) Or do you really want to argue that the state has the right to limit an individual's freedoms and rights, except to the extent such rights are granted by the state to the people.

Try arguing that in the context of any rational and honest approach to constitutional law.
11.3.2008 10:33am
eddie (mail):
And by the way, accepting that the constitution does protect a right, does not mean that one has to agree with the "morality" of such right. That's why we call this a democracy and why different religions can coexist and enjoy the protection of the government instead of the coercion thereof.

Is all of this really that opaque?

Or is life merely some kind of moot court where only the argument has meaning?
11.3.2008 10:35am
Sarcastro (www):

Usually, our constitutions expand liberties, they don't contract them.


Translation: Always, our courts expand liberties, they never contract them.

This seems totally correct! Thanks to DB for making it all clear at last.
11.3.2008 10:37am
Anderson (mail):
SEC. 4. (a) Notwithstanding any other provision of law, gill nets and trammel nets may not be used to take any species of rockfish.

What? You're mocking the Rockfish Clause?

Do you know how many rockfish *died* to get that provision in the state constitution?
11.3.2008 10:37am
Randy R. (mail):
DB: "or he thinks judicial expansions of liberty should always be permanent."

Of course, Obama said nothing about *judicial* expansions of liberty. David, you keep reading more into what he said than what he actually said. He was talking only about constitutions, and in the context of amending a constitution. You are the one who keeps assuming that you can't talk about constitutions without talking about judicial case law.

So basically, you have set up a straw man: You twisted what Obama actually said, and then point out that this is a silly statement. How about just looking at what he actually said, and assuming that he meant only constitutions?

I think Obama's position is quite clear -- he's not in favor of gay marriage, but he's not in favor of banning it either. You may not agree with this, (I certainly don't!) but you have to agree it is not inherently inconsistent.

Sheesh. This is pretty thin gruel to bash Obama with.
11.3.2008 10:43am
cboldt (mail):
-- I think Obama's position is quite clear -- he's not in favor of gay marriage, but he's not in favor of banning it either. --
.
His "I am not in favor of gay marriage" is either a lie, or a statement of personal belief that has no bearing on public policy (i.e., "I am personally against it, but it should be legal"). He is advocating status quo in California, where status quo is a right to homosexual marriage, observed in the CA constitution by the CA Supreme Court. He thinks the final decision is correct, and that if a change is to be made to the CA constitution, it should be to endorse what the CA Supreme Court said, rather than to reverse it. As a matter of government policy, he favors a right to homosexual marriage.
11.3.2008 10:56am
Guest14:
How about the federal income tax, a threat to individual liberty if there ever was one, declared unconstitutional in 1895 and reinstated by constitutional amendment less than 20 years later?
This is wrong. Pollock held that taxes on income from property were direct taxes requiring apportionment. It didn't declare income taxes unconstitional.
11.3.2008 11:00am
Elliot123 (mail):
"David, I don't think Obama's answer was very good, but as best I can tell he didn't actually say that."

Using your standards, I wonder if Obama has ever acually said anything.
11.3.2008 11:02am
Sarcastro (www):
cboldt's point is logical, since Obama's position about California must hold for the rest of the nation.

California's culture is just so quintessentially American! I always mix up Wyoming and California myself.
11.3.2008 11:03am
DavidBernstein (mail):
I'm really not going to bother debating with commenters who don't understand that the context of Obama's remarks is a state constitutional amendment to overturn a judicial decision establishing gay marriage as a state constitutional right, and then have the chutzpah to accuse me of not knowing what I'm talking about.
11.3.2008 11:14am
Randy R. (mail):
Kent: "But it wasn't originally about expanding liberties."

Which is exactly why Thomas Jefferson insisted upon a Bill of Rights to be included, as a limit as to what the gov't can do.

DiversityHire: "One radio spot lectures the listener that proposition 8 would have no effect on schools, teachers, or curricula"

One of the complaints made out by the Yes on Prop 8 people is that if gay marriage is allowed, then Californians will have to teach their children about gay marriage in schools. (Why that's a problem in the first place, I really don't know). So they are running these ads on tv and radio all about that.

And now there are parents whose kids are hearing these ads from the anti-gay crowd, and the kids are now asking them what gay marriage is. So the parents have to tell them. So the kids are learning about gay marriage because the anti-gay marriage people are raising the issue! I'm sure the irony is totally lost on them, but it's fun to point it out.

And if you don't think that Prop 8 is all about gay bashing, just go to any website that has Mormon commentators. Then you'll see what they really think!
11.3.2008 11:21am
Randy R. (mail):
cboltd: " As a matter of government policy, he favors a right to homosexual marriage."

Then if that were true, he would be in saying No on Prop 8, and he would be urging all states to allow gay marriage. Has he said any of that? No, he hasn't.

It's analagous to abortion. There are politicians who say that they are against abortion, but don't want to prohibit it. That means that they would not want an abortion for themselves and would prefer that people don't ever choose that, but that they are not willing to go so far as to ban it for other people who might disagree.

Obama strikes me as saying much the same thing. He's not in favor of gay marriage, and would prefer not to see anyone get married unless they are mand and woman, but that he would not go so far as to ban it for those who think the opposite.

In other words, there is a difference between what one thinks the world *ought* to be, and how you would actually regulate the world. For instance, I believe that cats ought be prohibited as pets, but I am not in favor of a law that would ban cats as pets. See the diff?
11.3.2008 11:29am
Anderson (mail):
I'm really not going to bother debating with commenters who

... know the meaning of the word "usually."
11.3.2008 11:31am
Randy R. (mail):
DB: "I'm really not going to bother debating with commenters who don't understand that the context of Obama's remarks"

I apologize for questioning your judgment, David. Of course, you have Kreskin-like powers that give you superior insight into the mind of Obama, and can interprete his comments better than any other lawyer.
11.3.2008 11:33am
cboldt (mail):
-- He's not in favor of gay marriage, and would prefer not to see anyone get married unless they are mand and woman, but that he would not go so far as to ban it for those who think the opposite. --
.
That's pretty much what I said, in the option of taking his "against homosexual marriage" to be a statement of irrelevant personal preference. As for his preference as a matter of government policy, he asserts that the CA Supreme Court's interpretation of the CA constitution is correct, and ought not be monkeyed with, on the grounds that Constitutions should be read to grant liberty as to forms of nuclear family, not to restrict it. IOW, what you call "not ban," I see Obama's position as "government is not incorrect to find the liberty interest called 'entering into homosexual marriage' embodied in the CA constitution."
.
If his "against homosexual marriage" is taken as a preference in government policy, it contradicts his other statement, agreeing with the outcome of the CA Supreme court's establishment of policy via interpretation of the CA constitution.
11.3.2008 11:39am
cboldt (mail):
-- Then if that were true, he would be in saying No on Prop 8, and he would be urging all states to allow gay marriage. Has he said any of that? No, he hasn't. --
.
His answer wasn't in the nature of letting other states come to the opposite conclusion. If he though that government policy was okay on either side of this issue, he could have said so, in any number of ways. But his answer comes off as a general endorsement that constitutions should be interpreted to find the liberty to enter into a homosexual marriage.

But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about."

.
The only way to make his "I am not in favor of gay marriage" comment into straight talk is to make it an irrelevant statement of personal position. If it is meant to reflect a policy bias, it contradicts the policy bias expressed in the immediately following statement.
11.3.2008 11:49am
Anderson (mail):
Romer is one of the most poorly reasoned, muddled, incomprehensible modern Supreme Court opinions I have ever had the misfortune to come across

As opposed to the laserlike cogency of Bowers v. Hardwick, I suppose.
11.3.2008 12:16pm
therut (mail):
He has purposefully mislead the electorate up to this point. That is the problem with his statement.
11.3.2008 12:25pm
Bob Van Burkleo (mail):
The only way to make his "I am not in favor of gay marriage" comment into straight talk is to make it an irrelevant statement of personal position.

Why is his personal position 'irrelevant'? Talk about marginalizing people. As he told the Advocate in his interview is is not for marriage equality personally and as such he won't be its advocate. But he won't get in the way of other people using totally legal means of getting it for themselves if they disagree with him either. Its the difference between tolerance and advocacy/opposition to a quality. My example wouldn't have been 'cats' but 'motorcycle riding on the freeway' - I think it shows stupidity but as my dad said 'this is America, you can do 10 stupid things a day if you want to'.
11.3.2008 12:39pm
cboldt (mail):
-- Why is his personal position 'irrelevant'? --
.
If the comment is to be limited to one of personal belief, and as not informing a policy preference, then it's irrelevant in the policy preference debate. The comment can be redacted from context without altering the meaning of the complete statement. "I'm against gay marriage" becomes a throw-away statement.
11.3.2008 12:44pm
Barry_D (mail):
David Bernstein: "Better yet, how about Dred Scott, which expanded the "liberty" of slaveholders, by allowing them to bring their slaves into federal territory? That particular liberty was "contracted" by the Thirteenth Amendment, wasn't it? "

I would say that that's reaching a bit, but I'd be understating it. By your standard, the whole 13th - 15th amendments must be an intolerable infringement upon libertary. It reminds me of a statement by the leader of some 'anti-takings' group in Texas, who, when pressed for an example of the government taking property, could only come up with the Emancipation Proclamation.
11.3.2008 12:56pm
Bob Van Burkleo (mail):
"I'm against gay marriage" becomes a throw-away statement.

Of course that isn't what he said either. He said he wasn't 'in favor' - you can not be in favor of something, e.g. riding motorcycles on the freeway, without being actively against it.

Now on the separate issue of writing constitutional amendments that allow a subset of citizens to have special rights in the eyes of government, you can be against that just on principle alone.

But yes, if you want to use him then his personal position is useless if he is committed to tolerance.
11.3.2008 1:32pm
Randy R. (mail):
Bob: "My example wouldn't have been 'cats'"

You obviously have never had a roommate who had a cat, or seen that awful musical.
11.3.2008 1:50pm
Dilan Esper (mail) (www):
It is worth noting that it isn't just Romer v. Evans that supports Obama's position. Washington v. Seattle School District and Reitman v. Mulkey also support it.

It's actually a relatively longstanding tradition we have that constitutions aren't supposed to preclude the recognition of civil rights by legislatures, counties, and cities.
11.3.2008 2:10pm
John D (mail):
I want to thank those making comments for clarifying this issue for me. I've been disappointed by Senator Obama's comments on same-sex marriage.

From the comments here I can easily set up examples of things that I don't like that I would nevertheless fight to preserve.

For example, I don't like evangelical Christianity, but the day a ballot measure comes up forbidding the operation of evangelical churches, I would fight for its defeat. (Alas, the evangelicals aren't quite so protective of my rights.)
11.3.2008 3:06pm
Duncan Frissell (mail):
There's no liberty interest involved since same sex couples can marry anyway. The only issue is state recognition. If you can do something without violating the law you have the freedom to do it.

There is no such thing as "freedom" of state recognition. There is only freedom of action.

Generally speaking, I prefer not to have state recognition of any of my actions. I don't like them paying attention to me at all.

If I could easily operate a motor vehicle w/o license and registration, I would consider myself freer (and richer) than I am now with government recognition of my motor vehicle practices.
11.3.2008 3:14pm
JMB (mail) (www):
"Or do you really want to argue that the state has the right to limit an individual's freedoms and rights, except to the extent such rights are granted by the state to the people."

Any rights that are granted, can be taken away by those who have granted them, or those who have seen it fit to allow them.
Freedom is owned by those who have taken it for themselves. And whoever thinks that I might stand idle while any damn government takes from me what I consider to be my own, they have certainly a misreading of my own resolve.
For I will resist, with the very last portions of my own strength, any repeated attempts by these governments, judicial, or otherwise To indoctrinate my children as they do see fit.
My rights from this kind of freedom, I will not allow to be mooted, by these courts, just because they have seen it fit to argue for me, or against me.
11.3.2008 3:29pm
Michelle Dulak Thomson (mail):
Obama's difficulty is that the status quo in CA before the CA Supreme Court's decision was exactly what he purports to favor: civil unions for gay couples, identical in terms of legal benefits (at least within CA) to marriage, but not actually called "marriage." Prop. 8 would, if passed, put things back just where Obama claims to want them.

That doesn't mean that he's wrong; there are a lot of things I'd like changed that I don't necessarily want changed via Constitutional amendment.

I find myself in a somewhat similar situation, but from the other side: I'd happily vote "yes" on a ballot measure approving gay marriage, and I am voting "no" on Prop. 8 tomorrow, but if anything could push me in the other direction, it's the actions, first of the CA Supremes in enacting this by fiat, and second of SF's goofball of a mayor gloating about it.

I'd rather, personally, that CA just drop "marriage" altogether, and recognize only civil unions, expanding the category to include all couples now counted as "married" under state law. But that's evidently not in the cards . . .
11.3.2008 3:36pm
Randy R. (mail):
Thanks, Michelle, for the mature and encouraging remarks. I understand people's frustration that the CA Supreme Court issued its decision (although I heartily agree with it). But regardless of their actions, and regardless of jerks like Gavin Newsome, the issue is whether gays will be allowed to get married.

Many people have previously stated here that they are voting for Prop 8 just because they want to stick their finger to the Court and to Newsome. I suppose that is their right, but to play games with people's lives to me is just bizarre. It takes a mature person to rise above ill feeelings, however legitimate, to do the right thing. Issues like this really show what a person is made of, and some people rise to the occasion, and some do not. Thanks again.
11.3.2008 3:59pm
Michelle Dulak Thomson (mail):
Randy,

That's "Newsom," no terminal "e." Why do you call him a jerk? He wants exactly what you want, and was merely indiscreet enough to celebrate too openly when he'd got it. I think he made a terrific blunder, but that's all.

Thanks to the tribute to my, um, "maturity," but I'm not sure I deserve it. For one thing, having received the California Labor Federation's slate card in the mail the other day, I have the strongest temptation to take the thing into the booth tomorrow and vote exactly opposite its recommendations. I won't, because, alas, I agree with about half of them. But their gloss on Prop. 11 alone ("Undermines democracy by giving power to bureaucrats who aren't elected by the people" — if you don't know what the proposition actually does, Google it) makes me want to do something rash and spiteful.
11.3.2008 4:15pm
The General:
Or he's lying. He knows that by changing the state (or Federal) constitution to support traditional marriage would make it near impossible to enact gay marriage legislatively or thru judicial activism. That's why he wants the status quo (he's against change!) He knows that if he came out in favor of gay marriage it would hurt him politically, while he knows full well that eventually, the Courts are going to impose gay marriage on the country (a vast majority of which opposes it.). He'll have clean hands as he won't be involved directly in the imposition. He can then say he'll live with the court's decision. In other words, it's a big fat cop out and he knows it. He says he's against gay marriage with a figurative wink and radical gay activists know it.
11.3.2008 6:05pm
John D (mail):
Duncan,

If by:

There's no liberty interest involved since same sex couples can marry anyway.


you mean, "can have their relationship blessed by a sympathetic member of the clergy," but certainly on a legal blog, we can expect that marriage is "receipt of a marriage license from the state."

If Prop 8 passes, same-sex couples will not be able to do that. California will not grant them marriage licenses, and I suspect the state will have to ignore those already issued ("married to a same-sex partner, sorry but we can't count that one").

This ought to be like getting an automobile license (though I say that wary of a future proposition taking away my ability to obtain and hold a drivers license, on the grounds that "parents take their biological children to church picnics in cars; we can't allow gay men to drive."

General,

The courts have imposed "gay marriage" on no one (unless you've received a court order forcing you to marry a member of own sex). It's a wholly voluntary program, opt-in only. I might as well complain that Prop 8 forces Christian marriage on non-Christians, therefore following from the establishment clause, all Christians in California should be forcibly resettled out of state.
11.3.2008 7:35pm
Randy R. (mail):
The General: " He says he's against gay marriage with a figurative wink and radical gay activists know it."

Well, I'm a moderate gay activist, and so far as I know, Obama is against gay marriage and hasn't indicated otherwise. I'll ask my radical gay activists friends, however. They might know something I don't.

One thing, though, Obama must have 'winked' at the General, because, crafty guy that he is, he figured out what this moderate gay activist hasn't been able to. Good work, Soldier!
11.3.2008 7:58pm
an obama fan (mail):
Well, they gave us a Jim Crowe law--Gay people can thank them later. The intolerant religious right refused to allow a civil unions compromise or encourage it, instead they forced the issue, won a minor temporary victory. I was for civil unions with the same rights, instead of traditional marriages that Churches will soon be forced to perform, when the discrimination is invalidated by the high court.
Now, the issue will go the the United States Supreme Court. This is no more a states rights issue than was segregation, racism, hate crimes, freedom of religion, educational equality, etc.
Mr. Sulu, you are wealthy, put your money where your mouth is and take it to the Supreme Court--put up or shut up....."make it so."
11.6.2008 1:19pm