By Selwyn Duke

Election reportage is reaching a fever pitch, and one of the hottest stories concerns a recently revealed interview
Barack Obama gave to Chicago Public Radio in 2001. In it, then Illinois
state senator Obama talked about whether his desire to spread the
wealth around might be better accomplished legislatively or through the
courts and lamented that the latter hadn’t done enough to further this
socialist goal.

While many have heard the interview, very few have identified its most
troubling aspect. It’s not that Obama’s answers were peppered with
various forms of the term "redistribute," as all politically-sentient
beings already know this is what he aims to do with other people’s
money. It wasn’t that he said the Warren court wasn’t really all that
"radical." It’s not even that he strongly implied the Constitution was
flawed, as no legal document is perfect, and many thinking people would
like to see the Constitution altered in some way. No, there is
something far, far more chilling, although, to many, it may seem
somewhat innocuous. It was when Obama spoke of how legal
"justifications" could be found allowing the courts to order
redistributive policies. This single, solitary statement transcends one
policy and reveals The One’s philosophy.

If I said "So-and-so has his justifications" or "He just wants to justify
his actions," we all know that the italicized words don’t have a
positive connotation. Justifications are not usually synonymous with
reasons — they tend to be more akin to rationalizations.

As to this, the land of the Tiananmen Square protests of 1989 has a
constitution that guarantees its people many of the same rights ours
does to us. You wouldn’t know it, though, because the Chinese
government, well, has its justifications. The commissars justify the
people right out of their rights. Ergo, tank treads on the human face.

While very few want to roll over their fellow Americans with a tank
(however, it was recently discovered that Obama ally Bill Ayers once
said that it may be necessary to kill
25 million "capitalists" who won’t go along with the communist
program), sadly, many of our countrymen are content to do same to the
Constitution.

The problem here is that most citizens don’t understand what a
constitution really is and what it accomplishes. So let’s discuss The
Constitution 101.

It could be said that the Constitution is the contract Americans have
with one another. What do I mean? Well, if business partners embark
upon a commercial endeavor, they will draw up a contract; its purpose
is to ensure that all the partners’ rights will be respected, that
those with more clout won’t be able to trample upon the weaker.

Now, under such an arrangement, would you want all concerned to abide
by the contract’s terms or instead find justifications for violating
them?

Of course, if such a breach were attempted, we would have recourse to
the courts. But what if the justifiers managed to install fellow
justifiers in the courts, judges who would rubber-stamp their
"interpretation" of the contract? You could end up on a soup line.

This is precisely what happens when individuals who believe the
Constitution is a "living document" — meaning, it can be interpreted to
suit the "times" (which is a euphemism for "agenda") — are elected,
thus giving them the power to both legislate their justifications and
appoint or confirm judges who will rule them constitutional.

So those who consider supporting Obama must ask themselves a question:
Do I want my contract viewed as a "living" document whose protections
can be justified away? If you’re not sure, well, then, would you like
to play me in poker and have living rules that I can interpret to suit
the hand? I could make a lot of money that way, as Duke would become
the rulebook.

If you don’t like this idea, why would you want a president who would
appoint justices who would become the rulebook? Remember, having living
rules is tantamount to having no rules at all, just rulers. It is to
replace the rule of law with the rule of lawyers.

And Obama’s audacity with respect to subordinating rules to
justifications is staggering. Consider that in the 2001 interview he
also lamented that,

". . . the Supreme Court never ventured into the issues of the
redistribution of wealth and more basic issues of political and
economic justice . . . ."

No, it didn’t, senator, and for good reason.

The Constitution speaks about wealth "redistribution" and "economic
justice" no more than it does of prohibiting immigration or limiting
taxation to 10 percent of a person’s income. Thus, while I may argue
for the last two policies, I cannot do so based on a constitutional
argument without descending into deceit.

Obama then went further, saying that the Warren court’s failure to
pursue this justification meant it wasn’t that radical. Now, since the
senator would pursue it, may we conclude that he is that radical?  I must, given that he proceeded to say,

". . . it [the Warren court] didn’t break free from the essential
constraints that were placed by the Founding Fathers in the
Constitution."

Again, this is staggering. If you were in front of a judge seeking
justice because your business partners were violating your contract,
would you want the court to enforce its terms or "break free" from
them? Freedom isn’t good when it’s the freedom of the powerful to
violate your rights.

Now I must address a common complaint. Some may ask, "OK, but why
should we forever and always be constrained by a 200-year-old document?
Contracts sometimes need to be rewritten." This is true, but the answer
is that, again, it’s much as with a business contract.

If you and your business partners find that your contract doesn’t suit
the times, you can get together and, in accordance with the terms of
the contract, alter it. We can do the same with the Constitution
through the "amendment process," the legal way to change the document.
It’s a thorough, multi-step process that gives the nation time to mull
the proposal over, ensuring that it isn’t merely the result of a
collective fit of emotionalism and that the vast majority agree before
it takes effect. It helps to guarantee that it really is change the
people believe in.

And "people" is the operative word. Our leaders are supposed to derive
their right to rule from the consent of the governed, which is why we
elect representatives. Yet, the practice of finding constitutional
justifications — by politicians or judges — does violence to this
principle. Remember that our national contract reflects the will of the
people, as it was created and amended by our ancestors’ duly elected
representatives and is allowed to stand today by ours. Thus, what are
those constitutional "constraints" Obama seemed so dismissive of really?

They are nothing less than the voice of the people — the democratic
determinations of the generations, of the living and the dead — saying
"No! The law reflects our voice, and it constrains you just as it does
us."

And if judges don’t rule based upon our national contract, this great
expression of the people’s will, on what basis do they decide? Are they
receiving divine inspiration? Are they channeling Aristotle, Cicero,
Thomas Aquinas and Confucius? Do they have something akin to the Oracle
of Delphi? No, they may provide pseudo-intellectual justifications, but
the truth is that they are simply ruling based on their own
preferences. They then are subordinating the will of countless millions
of Americans to their own, transforming us into a quasi-oligarchy of
nine lawyers in black robes. They then are not just the only Americans
not constrained by law; again, they become the law.

Make no mistake, this is nothing less than a breach of the most
important legal contract that has ever existed, and many of our
"judges" (they don’t deserve the title) are thus guilty. And Obama has
made it clear that he casts his lot with them, as he recently said:

"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’m going to be selecting my judges."

This may sound nice and compassionate to many, but it only proves that
Obama is at best ignorant of a judge’s legitimate role and at worst
hostile to it. I’ll illustrate my point. What if it was my job to
choose figure-skating judges and I said just what Obama did above?
Would such a standard be more likely to yield fair, qualified
candidates — those who would render judgments based only on the rules
of the sport — or those who would be prejudiced in favor of competitors
who were teenage moms, "poor, or African-American, or gay, or disabled,
or old"? Obviously, appointing agenda-obsessed individuals only
increases the chances that following the law will not be their number
one priority. If, however, your goal is inequality under the law, this
is exactly what you should do.

This is why an appeal for judicial candidates who view the Constitution
as a "living document" is not an argument, but a justification. It is
why the terms we use to describe justices with different "legal
philosophies" only serve to muddy the waters. Could you imagine
speaking of "constructionist" and "pragmatic" figure-skating judges? Is
there any way you could argue for the latter — someone who viewed the
rules of the sport as living — without being laughed out of the
business?

In reality, there are only two kinds of justices: Good justices and bad
justices. And this is why, while candidates will fervently assert that
there should be no litmus test for Supreme Court nominees, they are
wrong. There should be a very simple one: The candidate must be willing to abide by the intent of the Constitution’s framers.  That is the job of a good justice.  It is also where an Obama choice will be found wanting.

But before we can have good Supreme Court justices, we must choose good
leaders. So I have a challenge for my undecided but open-minded
countrymen. Many on the left (and some on the right) excoriate
President Bush for violating the Constitution. And there is no doubt
that most of our politicians are woefully inadequate to the task of
upholding it. Yet, if this criticism of the president is sincere, how
can we then cast a ballot for a man who has served notice, time and
again, that he has no intention of even attempting such a task? I
suppose some just have their justifications.

                  Protected by Copyright