The fundamental unconstitutionalism of Obama’s presidency

Much has been made of Obama’s statement that the gun rights crowd should stop worrying, because Obama contends that he is “constrained” by the system the Founders put in place.  If you don’t read his actual words with great care, it sounds as if he’s saying he’s contractually constrained — or, to put it in political language, he’s constitutionally constrained.  Without actually listening to him, we assume he’s saying, “Stop worrying, because even I understand that the Constitution stops me from grabbing your guns.”

The reason that there’s been such an uproar, though, is because that’s not what he’s saying.  Here’s the entire statement:

You hear some of these quotes, ‘I need a gun to protect myself from the government.’ ‘We can’t do background checks because the government is going to come take my guns away.’  Well, the government is us. These officials are elected by you. They are elected by you. I am elected by you. I am constrained, as they are constrained, by a system that our Founders put in place. It’s a government of and by and for the people.

That short paragraph breaks down into three distinct thoughts:

Thought one:  Crazy gun rights nuts fear the government.

Thought two:  People elect their government.

Thought three:  Those who are elected “are constrained by a system that our Founders put into place.”

Obama’s nasty language (and it is nasty, to the extent it calls at least 50% of Americans paranoid and ill-informed) says two things that are wrong.

The first wrong thing Obama’s implication, in thoughts two and three, that politicians are charged with taking care of our Constitutional rights.  That’s bass ackwards.  We are charged with taking care of our Constitutional rights — they’re natural rights, inherent in us, and the Second Amendment exists to make sure that if too many elected officials forget that those are natural rights, and begin to think they’re merely legislative rules that legislators can change, we can rid our country of these politicians’ tyranny.

The second wrong thing, which is more subtle, is that Obama is implying in thoughts two and three that, if a sufficient number of Americans elect anti-gun politicians, that majority overrides the constitution.  What he says in those last five sentences (“the government is us,” “you elect yourselves,” “the election is for you”) is that, if a majority of people elect politicians who support an unconstitutional idea, those politicians get to move forward enacting that idea irrespective of the Constitution.  That is a staggering misreading of the Constitution and the Gettysburg Address.

All of which gets me back to gay marriage and abortion, not because I’m specifically concerned with gay marriage and abortion, but because I’m concerned about the Constitutional implications when the Left takes on gay marriage and abortion.  First, neither is in the Constitution.  In 1973, Supreme Court justices used an emanation of a penumbra based upon an inference to find a “constitutional right to abortion” in the first trimester, with that individual woman’s right decreasing steadily until the third trimester, when the viable fetus became the state’s responsibility.

Since 1973, that trimester by trimester calculation has been abandoned so completely that a Planned Parenthood representative felt comfortable telling the Florida legislature that it was okay to “continue” an abortion if the baby manages to emerge alive.  In some places, that’s called murder.  Indeed, that’s why Kermit Gosnell is being tried for murder.  In Planned Parenthood’s world, however, his work was constitutionally legitimate.

As for gay marriage, it’s being cast as an inchoate civil right because no one can contend the Founders thought about it.  They certainly knew about abortion, although they made no mention of it, but they definitely didn’t consider the possibility of gay marriage.

In the Founders’ time, marriage was thought to be only one possible thing:  the joining of man and woman.  If the Constitution had made mention of it (which it didn’t), that it is what it would have meant.  The Left, though, is now recasting marriage as the uniting of two people who love each other.  The Founders would have been surprised.  In those days, after all, marriage was still very much a business proposition, one that gave a woman children and the assurance of care for those children, and one that gave a man the right to his wife’s financial estate, and the promise of progeny to inherit that combined estate.  If a marriage included love, such as John and Abigail Adams had, or George and Martha Washington enjoyed, that was a pleasant byproduct of a sexual and economic transaction sanctified by religion and sanctioned by the state.

The Obama administration has already used ObamaCare as a bludgeon by which to force conservative religious organizations to sponsor abortion. Before, those organizations preached against it; now, they’re being forced to pay for it.

What happened with abortion matters because the same thing is happening with gay marriage.  During the gay marriage debate’s first iteration, when California’s Prop. 8 was on the ballot, and before ObamaCare, we were promised that there was no way that the State could force religious institutions to perform gay marriages.  “After all,” said Prop. 8 opponents airily, “the state doesn’t force churches to perform abortions.”  Well, in Obama world — secure in his sufficient majority — the State does force churches to perform abortions.

The same will be true with gay marriage.  People dismiss the fact that religious institutions in other countries have been forced to perform gay marriages, or been punished for not performing gay marriages. Those countries, they say, don’t have a constitution.  We know, though, that this constitutional argument is meaningless in Obama’s America.  Last year, his administration made clear that it is unconstrained by Constitutional concerns.  And last week, Obama explained why:  if he feels he has the power, that power overrides the constitution.

At least now we know where we stand.

The question is whether, by 2014, we can convince a majority of American voters that their constitutional rights are at risk and that, even if they agree with the Obama plans so far (abortion, gay marriage, gun control), they may not like the next plans he has lined up down the road.  If I were Obama, I’d go after the 4th and 5th Amendments next.  After getting Americans to understand this comes the harder task:  keeping their focus all the way through 2016.

The problem when it comes to educating Americans is that these ideas are so horribly complex.  They don’t reduce to a poster.  It’s not going to resonate with most Americans to see a poster of a sad priest being forced to perform a gay marriage ceremony.  They’ll probably just say that the priest deserves to suffer because his organization once turned a blind eye to pedophiles.  (Under that standard, of course, the University of Pennsylvania should be razed and the earth sown with salt.)

When the liberals in my world catch hold of the fact that I don’t support gay marriage, they attack me as a homophobe.  I’m really not.  What I am is someone deeply concerned by the Constitutional implications of a mad rush to create implicit constitutional rights where none existed before, and then to use those inferred rights to destroy explicit ones.  They should be just as concerned.  If they want gay marriage as a Constitutional right, they should amend the Constitution, rather than trying to destroy it.  For all they know, they may be the next in line when the Obama state turns its destructive beam on yet another constitutional right.

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the socialists,
and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for me,
and there was no one left to speak for me.

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  • wbkrebs

    Two minor quibbles about the facts:
    1.  Proposition 8 was the second iteration of the California Gay marriage debate.  The first iteration was Proposition 22 in the 200 election.
    2.  The opponents of Proposition 8 were the ones who argued that churches would not be forced to perform gay weddings.  The proponents were opposed to gay marriage.

  • Bookworm

    Thanks, WBkrebs.  I remember the first one in 2000, but it stayed in California.  It was Prop 8 that went national, so that’s what I focused on.  As for the proponents/opponents mistake — I will fix that.

  • lee

    I recently came across an argument for gay marriage that was obviated in the 1980’s. Speaking of which (and I will get back to this later), Iowahawk was proposing something I touted during the Proposition 8 vote. (I still lived in Marin then.) That is, get the government out of the magic marriage game (where the couple signs a piece of paper, someone says the magic words, and POOF! The couple is married) and instead, have couples do what gay couples started doing during the AIDS epidemic.
    Gay couples, some of whom had been “together” for years, found themselves torn apart in an way they didn’t expect by AIDS: Families of the ill person had the legal first dibs, and the significant other was left out in the cold: No access during hospitalization (only “family”), nothing if the person died intestate, etc. (Which, BTW, are the same problems heterosexual couples who “didn’t need a piece of paper to prove their love.” Knew a couple where the man was dying of liver failure, and his family wouldn’t allow his long term live-in girlfriend to be with him. More on this later…) So what gay coupls started doing is signing a lot of paperwork: Wills, durable powers-of-attorney, living wills, sometimes even setting up a legal partnership, if possible, say if they could be considered business partners. The effect was similar to being married. This idea appeals to me because marriage is legally much like a business partnership. When forming a business partnership, you usually draft and agreement outlining who holds how much, responsibilities, what happens in the event of a dissolution, life insurance, tax status, etc. Kind of like a really detailed ketubbah. I think this is what the government should have people do. This way anyone of legal majority can sign. The moral relativists who are keen on polygamy and polyamory can incorporate if they so choose. There is no slippery slope of “marriage.” And religions can still do THEIR marriage thing, which is about something different…* (see footnote below.)
    Okay, I said I would get back to this: The ad I saw was designed to tug at heart strings. Poor gay couples who can’t get married–if one of them winds up in the hospital, the other could be prevented from even visiting! Except–that most hospitals don’t do that anymore, and most gay couples learned during the AIDS epidemic, to make sure they had a living will in place, and with the advent of HIPAA, to add their significant other to the privacy list. Admittedly, legal marriage generally makes that automatic, without doing it. But as I learned with my father, and my husband learned with HIS father, NOT being on that “privacy list” is certainly NOT automatic for the adult child of an elderly person.  But hospitals HATE being caught up in between family battles, especially when the health of an person is involved.
    * For religions, marriage is about sanctifying a relationship of a couple–for children, and it is also to keep their, uh, “physicality” in check, (cynic that I am.) In Hebrew, the word for marriage is derived from the root for “holy” or “sanctified.” In the ceremony, the man tells the wife she is “sanctified” unto him. I always heard that the root, holy, indicated a separation from the profane, the daily, the regular. Shabbat is separated from the regular week, a wife is separated from the rest of the women, the relationship between a husband and wife, is separated from the relationships they have with other people. Where that from which all that is is separated, is profane, or ordinary, or regular. I like this idea, even though I am not explaining it very well.


    lee, quick question regarding your footnote. The word for marriage is ‘chatoonah’ חתונה       . If I am wrong, please explain. I understood everything else. I am sure being Jewish and a bit bilingual in Hebrew helps.

  • Ymarsakar

    “They should be just as concerned.”
    If the gay rebels think they will be treated as “equals” by the Left’s fascist ideology… they will be given quite a view.
    Democracy is one of the greatest cons in existence in convincing a people that they deserve their tyrants.

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    I think you mean Pennsylvania State University, not the University of Pennsylvania.  

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