Obama and the Constitution: Our Nation's Unfinished Business
Before Barack Obama's election last week, speculation about the President-elect's future legal agenda was rampant. Prof. Stephen Calabresi, the co-founder of the Federalist Society, as well as other prominent conservatives claimed that Obama would seek to redistribute property, taking out of context a 2001 interview in which Obama discussed the role of courts. But that is not where Obama's legal legacy likely will, or should, lie.
As President, Barack Obama will have the opportunity to reshape our nation's commitment to liberty and equality, first inscribed in the Declaration of Independence and then in the Bill of Rights and in the Reconstruction Amendments that secured liberty and equality to all Americans. Abraham Lincoln, one of Obama's heroes, fought the Civil War to secure "a new birth of freedom," and Lincoln's famous words will be President-elect Obama's inaugural theme.
Unfortunately, the Reconstruction Amendments, particularly the Fourteenth Amendment, have never gotten their due. Shortly after their passage, a hostile Supreme Court severely limited the most important provisions of the Fourteenth Amendment, and these cramped precedents still dominate the legal landscape. Tomorrow and Friday, some of the country's finest legal scholars and lawyers will meet in Philadelphia to discuss how to recover the text and history of the Reconstruction Amendments.
The conference, entitled The Second Founding and the Reconstruction Amendments, was convened by the American Constitution Society and is being co-sponsored by the Constitutional Accountability Center. It will focus primarily on the immortal words of the Fourteenth Amendment, which sought to write into our Constitution Lincoln's promised "new birth of freedom" and are at issue in many of the most contested cases before the Supreme Court.
Like the Declaration of Independence Lincoln invoked at Gettysburg, the Fourteenth Amendment provides rock-solid protections for liberty and equality. In unmistakable words, it guarantees citizenship to all Americans as their birthright, protects all the fundamental rights of citizens, forbids discrimination and subordination, and gives Congress broad power to protect liberty and equality. Over two days, scholars at the conference will take a comprehensive look at the text and history of all of these critical constitutional protections.
Many of these guarantees have never been given their full scope, and others are subject to constant attack:
Birthright citizenship is guaranteed by the opening words of the Fourteenth Amendment, yet conservative politicians and activists each year argue that persons born in this country to undocumented immigrants should be stripped of the citizenship the Fourteenth Amendment plainly confers.
The Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively read out of the Constitution by the Supreme Court in 1873. That precedent still stands today.Congress was meant to have broad power to enforce the constitutional rights guaranteed by the Reconstruction Amendments. After all, a Supreme Court that decided Dred Scott could easily write fundamental protections out of the document. But shortly after Reconstruction, the Supreme Court sharply limited the enforcement powers of Congress. Today these precedents remain, and are used to invalidate civil rights legislation, such as the Violence Against Women Act. While the Court often defers to congressional exercises of its enumerated powers, it rarely does so when Congress attempts to enforce constitutional guarantees of liberty and equality.
Here is an agenda for Barack Obama -- secure "a new birth of freedom" for the 21st century, push the Supreme Court to enforce the text and history of the Reconstruction Amendments, and nominate Justices who will do the same. Hopefully President-elect Obama and his team of legal advisors will pay close attention to the ideas that will come out of this week's Second Founding conference.
This post was written by Doug Kendall and David Gans, Constitutional Accountability Center's Human and Civil Rights Program Director. For more analysis of how the Constitution favors progressives, visit Constitutional Accountability Center's blog, Text and History.
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The constitution was not meant to be "changed" to fit the mold of what you want it to say. That is why the interpretation of it is left to Supreme Court judges so that partisian politician hacks cannot put their slant on what the meaning is.
Take yesterday, the Chief Justice quoted George Washington when he ruled that we must have a strong military to protect the country and that they could not make the military quit using sonar around the coast because of the whales at the environmental quacks wanted them to. It has not been proven to be a problem you will note. But justice Judas Ginsburg wrote in her decent that since it might be a problem they should have to stop. No justification in the law, no precident cited, just a leftist America hating, military hating ruling. That is the problem with congress being unleashed to mess with the constitution.
you are truly a strange and pathetic person. There are federal laws protecting the marine mammals, she may have been referring to that.
Us lefties hate the military so much that my father served 28 months in the South Pacific during WWII and we lost my Uncle Pat less than a year after his high school graduation in Italy in that same war.
And yes they were lefties. Your definition of leftist seems to be anyone who disagrees with you.
Grow up, there are shades of gray everywhere...
FYI---
Chief Justice Roberts did not render the "ruling". He merely spoke for the court's majority decision, 5-4.
Oh, and by the way, if you know any Christians, you may want to remind them that God create Man to be stewards over his earth and creations, not destroyers of it.
It would be nice if Barack Obama could look at what the Department of Homeland Security is doing with the fourth ammendment to the Constitution.
The Border patrol has been given new borders. Anywhere within 100 miles of a coastline or another country they can pull you over and make you prove you are a citizen. Here in the Olympic Peninsula of Washinton State they put up random road blocks as well as pulling over people who are driving while brown (DWB).
We here in Port Angeles have the distinct honor of being the only place where a terrorist was caught on his way to commit an act of terror -- blowing up the LA Airport. This was done by customs agents who actually used their brains and noticed he was acting very nervous and sweating profusely. This was before 9 -11 and Rassad is still in jail. We don't need to use the Bill of Rights as toliet paper to keep our country safe, that is not why my dad spent 28 months in WWII in the South Pacific, that is not why we lost my Uncle Pat in that same war over in Italy. As Americans, we don't have to prove on some random basis that we are American. That being said, a lot of farmers in our neck of the woods are having trouble getting the crops harvested, stoop labor is hard and Americans don't want to do it.
The Constitution has no commitment to equality. This is an inaccuracy that the left likes to tout. Equality UNDER THE LAW is part of our constitution and bill of rights, but equality of property, wealth, or anything else the left can cook up is absolutely not part of the constitution nor was this type of equality ever mentioned at the founding. The author is wrong on that point.
W. prepped the constitution for the New World Order. Obama will sell it to us.
Everyone break out the tin-foils.
A strong second amendment protects against slavery.
Exactly. My gun safe is full. I think I need to stock up on ammo, though.
I whole heartedly support your points. We have such a awesome and unique gift in our constitution and I think it's discraceful that frequently the courts, particularly state courts, just do things and enact local laws for purposes of expediency and so forth, which clearly circumvent the principles expressed in our constitution. I even know of an instance in my state (New Jersey), in which sitting judges were instructed that it was OK to ignore the constitutional rights of defendants in cases that involved restraining orders. Unbelievably, but fortunately , the conversation during this training session was recorded and posted over the internet. After that, the state made changes to correct the practice. But this is typical of what they do. Some people claim we have the best justice system in the world. Personally, from what I have seen go on in courts I think the practice of law in this country is disgraceful. I have little respect for judges and lawyers, and I'm not alone in this sentiment. Our legal system also frequently treats the poor and disadvantaged unfairly.
Impeach Associate Justices Antonin Scalia and Clarence Thomas! They didn't recuse themselves from the Bush vs. Gore decision, despite conflicts of interest, and tipped the balance in favor of Bush, clearly because they wanted a president who'd appoint new justices on the right. Bush got to appoint two right-wing justices, so if Scalia and Thomas are removed the illegitimate boost given to the court's conservative faction will be cancelled out.
Oh yes, let's go after those justices because it fits YOUR agenda. What about those appointed by Clinton - Ginsburg and Breyer - Should they be impeached for not recusing themselves? Why even bother impeaching, let's just lock the whole bunch in the stockade and stoke the fire.
If you believe that, then shouldn't Breyer and Ginsburg have recuses themselves. Al Gore was VP to the president who nominated them.
Focus in this article is given to the 14th Amendment, and my comments concern the 13th Amendment.
"Neither slavery nor involuntary servitude, EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED, shall exist within the United States, or any place subject to their jurisdiction." (emphasis added)
The 13th Amendment both abolished chattel slavery and enshrined "slavery...as a punishment for crime" which ushered in the notorious "convict lease system" that turned newly emancipated freedmen back into free labor for owners of mines, lumber companies, railroads, cotton plantations, and a multiple of other businesses needing cheap or free labor after the Civil War.
The 13th Amendment needs to be changed to read:
Neither slavery nor involuntary servitude, NOT EVEN AS A PUNISHMENT FOR CRIME, shall exist within the United States, or any place subject to their jurisdiction.
With a 2.4 million prisoner population, not including jail inmates, most of those prisoners are Black and can not vote as given by the 15th Amendment? Is it any wonder that for-profit prison corporations lobby for more crimes with longer sentences? Slavery has always been profitable, and it continues.
All slavery needs to be abolished without exception, including slavery as a spoils for war, slavery as punishment, slavery as poverty, child slavery, wage slavery, prostitution slavery, debt slavery, military slavery, et al. No Exceptions!
I sincerely hope the CAC will give greater consideration to further examination of the first of the three Abolitionist Amendments, the 13th.
Could you elucidate on your references to "slavery as poverty", "wage slavery", "debt slavery", and "military slavery". I served 26 years in the Marines, and never once saw a slave. Nor have I ever witnessed anything that I can identify as wage slavery, nor poverty slavery. I never saw anyone beating the poor to keep them poor, never saw anyone refuse another's right to not work. Perhaps I'm confused?!
Semper fi
"slavery as poverty", "wage slavery", "debt slavery", and "military slavery"
I don't see those slavery, either when apply legal term.
However, what I see in the society today (It's actually not only in the US) are a lot of stress, self imprisonment (in psychological term), struggling daily life to no where, obsession to power/money/entitlement, discrimination, snub, hate, anger, suppressed emotions, etc. These are not legal means of anything of slavery. Therefore, nothing to do with constitution. However, from humanity stand point, in terms of psychological healthiness of the society, and yes, spirit of the constitution which supposed to be the foundation of common good to serve all the participants of the nation (citizens, becoming citizens and non-citizens working in the nation), something should be redefined and changed are definitely there. If it cause unnecessary argument when we use the term "slavery", we have to be careful, but in my view, unfair situations almost the same effect as slavery are so widespread. If you have never seen such situation for yourself, for your neighbors or friends, you must have been having exceptionally lucky life. Or you have such determination to protect the status quo, which is sometimes different from the real interest of the nation.
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