Commentary Magazine


Topic: Constitution

Ruth Bader Ginsburg and Barack Obama v. the Founders

Two recent interviews with two prominent liberal figures help cast some revealing light on modern liberalism’s attitude toward the Constitution.

Let’s start with Supreme Court Justice Ruth Bader Ginsburg, who said in an interview earlier this month with Al Hayat television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” She went on to praise Canada’s Charter of Rights and Freedoms and the European Convention on Human Rights as much more recent, and better, models. “Why not take advantage of what there is elsewhere in the world?” Justice Ginsburg asked. “I’m a very strong believer in listening and learning from others.”

Then there was President Obama’s interview with NBC’s Matt Lauer, in which Lauer said, “I have talked to so many people over the last couple of years, President Obama, who were huge supporters of yours back in 2008. And today they are not sure. I hear more and more that they’re disappointed in you. That you aren’t the transformational political figure they hoped you would be. How does that make you feel when you hear that?”

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One of the Sillier Statements of Any Modern Political Figure

In his interview with Scott Hennen, Newt Gingrich was asked what he thought about the “good Newt” versus “bad Newt” narrative. Gingrich responded this way: “I think it’s a foolish narrative. I mean, when you are drowning in being outspent 5 to 1 with negative ads, there’s a tendency to want to respond to them. Now I don’t know if that is bad Newt. Does that mean that there is a bad Mitt and a good Mitt? I mean, give me a break.”

But Gingrich went beyond that to say, “But I can tell you is that, if you look at my whole career, and Scott you’ve known me for many years, you look at the 24 books we’ve written, you look at the 7 movies we’ve made, you know, I like ideas, I like being a candidate of ideas and that’s far and away what I prefer to do and I think if people go to Newt.org and look at all the positive things we have there — just our 54-page paper on how to rebalance the judiciary and force the judges back within the Constitution. Just that one paper would frankly justify the campaign because it is the boldest statement of the founding fathers, the Constitution, the Federalist Papers I think that any modern political figure has written in my lifetime.”

Not quite.

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A Good Night for Conservative Principles

Former Massachusetts Governor Mitt Romney had perhaps his best debate last night in Jacksonville. He was, for the most part, forceful and in command. He damaged his main rival, Newt Gingrich, on answers ranging from immigration to Gingrich’s investment portfolio. And Romney was particularly strong at turning the tables on the attacks on his wealth, saying this:

And I know that there may be some who try to make a deal of that [Romney’s wealth and investments], as you have publicly. But look, I think it’s important for people to make sure that we don’t castigate individuals who have been successful and try and, by innuendo, suggest there’s something wrong with being successful and having investments and having a return on those investments. Speaker, you’ve indicated that somehow I don’t earn that money. I have earned the money that I have. I didn’t inherit it. I take risks. I make investments. Those investments lead to jobs being created in America. I’m proud of being successful. I’m proud of being in the free enterprise system that creates jobs for other people. I’m not going to run from that. I’m proud of the taxes I pay. My taxes, plus my charitable contributions, this year, 2011, will be about 40 percent. So, look, let’s put behind this idea of attacking me because of my investments or my money, and let’s get Republicans to say, you know what? What you’ve accomplished in your life shouldn’t be seen as a detriment, it should be seen as an asset to help America.

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Our Lawless President and the Recess Appointment Fight

I agree with Pete and Alana–and many others around the blogosphere–that Obama’s mini-Putsch two days ago was both lawless and typical of this administration. Obama only cares about his re-election at this point, and if that requires the Constitution to be trashed in the process, well, so be it.

As Alana pointed out, Charles Krauthammer thinks it might be clever politics, however cynical, because the president is arguing he has to get things done and it’s all the Senate’s fault for being obstructionist. I’m not so sure. The American people take the Constitution seriously and have a limited tolerance for
politicians who try to evade it for political purposes. FDR, just off a triumphant re-election (46 of 48 states), tried in 1937 to “pack” the Supreme Court that had been obstructing his programs by adding an extra justice for every justice over 70 years of age. That would have been perfectly constitutional, as Congress has the power to set the number of justices. (There were originally six, and there were 10 after 1863. The number has been fixed at nine since 1869.) But the people would have none of it, and Congress, responding to public opinion, refused to act. It was a devastating political defeat for FDR.

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Obama’s Indifference to the Law

I wanted to add to Alana’s post  regarding what has been aptly termed the “lawless” recess appointments by President Obama. (The president has a right to make recess appointments, but the Constitution says the recess appointment can only happen when Congress is in recess, and the Senate was not in recess when Obama made his appointments. Even the liberal Obama supporter Timothy Noah of The New Republic has conceded, “I just don’t see how these appointments can be legal.”)

The actions by Obama were clearly driven by political calculations. And perhaps, as Alana argues, they were politically smart, though my guess is this decision will make no difference, and not sway a single vote, in 2012. But for now I simply want to focus on what this action tells us about the president.

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Obama’s Recess Appointment: Unconstitutional?

So far, Senate Republicans have successfully blocked President Obama from making controversial recess appointments by using procedural tactics to keep the Senate technically “in session” during the holidays. But with the political press distracted by the GOP race this week, as John Steele Gordon noted earlier today, Obama quietly broke precedent and appointed Richard Cordray to lead the Consumer Financial Protection Bureau – despite protests from conservatives, who claim the move was illegal:

White House attorneys have argued that Obama has the authority to make the recess appointment after Senate Republicans blocked Cordray’s nomination last month. But opponents of the appointment argue that the Senate is not in recess, painting Obama’s move as a political power grab.

“Today, President Obama decided to bypass the Constitution and the system of checks and balances that have served our country so well,” Heritage Action for America CEO Michael Needham said in a statement. “Rather than heed the advice of the Senate, President Obama decided to embark on an arrogant and unprecedented power grab. This stunning appointment represents a fundamental threat to the balance of powers and the role of the legislature.”

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When Is Congress in Recess?

The AP is reporting that President Obama intends to use a recess appointment today to name Richard Cordray as head of the Consumer Financial Protection Bureau.

This is a considerable escalation of the war between the White House and the Senate over recess appointments that I wrote about in Contentions in 2010, because the Senate is not in recess. The Constitution requires that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives has not given that consent and has been holding pro forma sessions every three days, forcing the Senate to do likewise. When Democrats controlled the Senate in the last two years of the Bush administration, they held these pro forma sessions during recesses precisely to prevent President Bush from using the recess appointment power, which he didn’t.

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