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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but also against Prop. 8 because of some bizarre notion that expansions of constitutional liberty should never be repealed strikes me as political double-talk not worthy of former constitutional law professor Obama.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.

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