Author Freedman: Obama Is 'Post-Constitutional'

Tuesday, 09 Oct 2012 12:51 PM

By Patrick Hobin and Kathleen Walter

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President Barack Obama and Mitt Romney view the Constitution in two very different ways, with Obama overreaching at every opportunity, author and a leading commentator on law, Adam Freedman, told Newsmax TV.

Freedman pointed to the debate to illustrate the difference between the two presidential candidates in their approaches to the Constitution.

“The presidential debate . . . was very instructive,” he said. “The candidates were asked to define the role of the federal government. President Obama . . . took an oath to uphold the Constitution, gave a long answer defining the role of the federal government without once mentioning the Constitution. Gov. Romney was very different. His first part of the answer was to point to the words of the Constitution. And that’s a huge difference. President Obama is post-constitutional.”

Watch the exclusive interview here.



“When it came to picking Supreme Court justices, his chief criterion was whether or not those judges have ‘empathy,’ that is whether they understand people’s feelings, not whether they understand the Constitution,” he added.

In the main, the GOP has fought back against Obama’s excesses with the Constitution, Freedman said.

“Republicans have been pretty aggressive in fighting back against President Obama’s overreach, including taking the slack when the administration won’t defend its own laws,” he said. “The president is charged by the Constitution to take care that the laws are faithfully executed. And when there was a challenge to the Defense of Marriage Act, the Obama administration refused to defend that piece of legislation so Republicans in Congress stepped into the breach to make that constitutional argument.”

He concluded, “There’s always more that Republicans can do but, on the whole, they’ve done a pretty good job of pushing back against the administration and particularly at the state level in trying to resist the Obamacare mandates.”

Freedman, who has written a new book called, “The Naked Constitution: What the Founders Said and Why it Still Matters,” said his book “refers to the unvarnished text of the Constitution, what the Constitution was originally understood to stand for. When I talk about the original meaning, I’m not talking about trying to guess at what the drafters of the Constitution had in mind. It’s not trying to channel the Founding Fathers, but it is applying the text of the Constitution as it was originally understood by the public who ratified it. And the challenge there is that language changes.”

He continued, “So sometimes it takes a little bit of historical research to understand what a particular provision of the Constitution meant in, say, 1789 or 1791, when the Bill of Rights was enacted. That’s why I wrote ‘The Naked Constitution,’ to give everyone a guide to understanding the original meaning of the Constitution.”

Freedman said there is a possibility of a second battle over Obamacare, which would address the employer mandate.

He said another fight could take place “because the Court is considering an additional challenge to Obamacare. In the Court’s last term, they considered the individual mandate, which they upheld. In this term, they’re possibly going to take a case involving the employer mandate.”

“The Obamacare decision is an absolute landmark and it’s really a travesty because it brushes aside all of the constitutional limitations on federal power,” Freedman said. “The Court essentially held that Congress’ taxing power, which is a real power, but the Court held that their taxing power can be used to override all of the careful limitations that the Constitution places on the reach of federal power. So, after Obamacare won, if that decision stands, really, the ability of Congress to mandate any kind of behavior is essentially unlimited now."

Freedman, a critic of the argument that the Constitution requires the state to recognize same-sex marriage, explained what’s behind his thinking.

“There have been cases and, most famously, the decision in California on their Proposition 8 in which the court struck down a democratically enacted proposition on the basis that the Constitution requires states to recognize gay marriage,” he said. “This is based on the 14th Amendment, which was enacted in 1868, and it is preposterous to suggest that anyone who ratified the 14th Amendment in 1868 was thinking that this would mandate state recognition of gay marriage.

"This was a clause. The 14th Amendment was about equal protection under the law for the freed slaves. It extends to all citizens, but it is essentially remediating a huge injustice in society. It has nothing to do with marriage and it was only until very recently that anyone even imagined that the Constitution somehow mandated gay marriage.”

He continued, “Now, let me say, I don’t believe that the Constitution forbids gay marriage. The point about the Constitution is that it leaves that issue, like many other issues, up to the states. It’s a state issue and the federal Constitution simply doesn’t address marriage.”

Freedman said he is not optimistic about how the Supreme Court will rule on the Fisher vs. the University of Texas case, which revisits the constitutionality of using race as a factor in admissions to public colleges and universities.

“. . . There’s a very bad precedent on the books. Nine years ago, the Court made a very activist decision in a case called Grutter in which it upheld the University of Michigan Law School’s affirmative action program with the theory that diversity, sort of vaguely defined diversity, is such an important goal that state universities can use that to trump what would otherwise be equal protection under law,” he said.

“This is what the University of Texas is doing. Now, granted, the University of Texas’ affirmative action program, which is the issue before the Supreme Court in tomorrow’s argument, is more aggressive than the University of Michigan one,” Freedman said. “The University of Texas’ program would allow university administrators to discriminate against any ethnic group – African Americans, Hispanics, Asians, any group – to achieve what it believes is the somehow utopian racial mix of student bodies.”

He concluded: “That, again, is a complete violation of the original meaning of the equal protection clause, which was all about insuring no state favoritism towards any racial groups. It’s the kind of living Constitution activism that I talk about in “The Naked Constitution.”

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