Barack Obama - The Constitution

Summary

In his second book, The Audacity of Hope, State Senator Obama stated that the Constitution was not a static document, but rather a living one, that must be read in the context of an ever-changing world.

In a 2001 interview, State Senator Obama called the Constitution an imperfect document in reference to it's obvious omission of slaves being given equal rights. He stated that this imperfection, or blind spot in the culture, continues to this day.

In another 2001 interview, State Senator Obama states that the document is a charter of negative liberties in that it states what the State and Federal government could not do to you. He asserts that it is flawed in that it does not state what the State and Federal governments should be obligated to do on your behalf. Barack Obama makes numerous references to the need for  social justice and the need for a redistribution of wealth that may be outside the bounds of the constitution and the supreme court.

The Audacity of Hope

In his second book, then State Senator Obama discussed his view of the constitution as a living document and argued against a strict constructionist agenda.

When we get in a tussle, we appeal to the Founding Fathers and the Constitution’s ratifiers to give direction. Some, like Justice Scalia, conclude that the original understanding must be followed and if we obey this rule, democracy is respected.

Others, like Justice Breyers, insist that sometimes the original understanding can take you only so far--that on the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account.

I have to side with Justice Breyer’s view of the Constitution--that it is not a static but rather a living document and must be read in the context of an ever-changing world.

I see democracy as a conversation to be had. According to this conception, the genius of Madison’s design is not that it provides a fixed blueprint for action. It provides us with a framework and rules, but all its machinery are designed to force us into a conversation.

2001 radio interviews

In a 2001 Chicago public radio interview, then State Senator Obama made the following comments concerning "the flaw" in the constitution.  That flaw is an obvious reference to slavery.  The statement has garnered some controversy in that State Senator Obama stated that in his opinion, the flaw "continues to this day".

I think it's a remarkable document, the original one as well as the civil war amendments, but I think that it is an imperfect document, and I think that it is a document that reflects some deep flaws in American culture, the colonial culture nascent at that time.  African Americans were not, first of all they weren't African Americans, the Africans at the time were not considered as part of the polity that was of concern to the framers, I think that as Richard said, it was a nagging problem in the same way that these days we might think of environmental issues or some other problem where you have to balance cost benefits as opposed to seeing it as a moral problem involving persons of moral worth and in that sense I think that we can say that the constitution reflected an enormous blind spot in this culture that carries on until this day and that the framers had that same blind spot.  I don't think that the two views are contradictory to say that it was a remarkable political document that paved the way for where we are now and to say that it also reflected the fundamental flaw of this country that continues to this day.

In another interview on the same radio station in 2001, State Senator Obama openly discussed the use of the supreme court to redistribute wealth.  He goes on to say that while the Warren court viewed the constitution as a charter of negative liberties in that but should have also viewed it as a document that gives requirements to the government.  His exact quote is that  "it says what the state and federal government can't do to you, it doesn't say what it should do for you".  He also uses the term "redistributive weatlh" a number of times in reference to the court.

You know, if you look at the victories and failures of the civil rights movements and it's litigation strategies in the court, I think that where it succeeded was to vest formal rights in previously dispossessed people so that I would now have the right to vote, I would have the right to sit at a lunch counter and order in and as long as I could pay for it I'd be OK. But the supreme court never ventured in to the issue of redistribution of wealth, and sort of more basic issues of political and economic justice in the society. And to that extent, as radical as people try to characterize the Warren court, it wasn't that radical, it didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it's been interpreted and the Warren court interpreted it in the same way that generally the constitution is a charter of negative liberties. It says what the states can't do to you, it says what the federal government can't do to you, but it doesn't say what the state or federal government must do on your behalf.  

Boston Globe Interview

In December of 2007, Senator Obama was interviewed by the Boston Globe and asked about signing statements and the ability of the President to opt out of an unconstitutional law.

4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

Memo on Signing Statements

On March 9, 2009 President Obama issued a memo noting the topic of signing statements and the constitutionality of using them in the past.

THE WHITE HOUSE
Office of the Press Secretary
______________________________________________________________________________

For Immediate Release Monday, March 9, 2009
March 9, 2009
Memorandum for the Heads of Executive Departments and Agencies
SUBJECT: Presidential Signing Statements

For nearly two centuries, Presidents have issued statements addressing constitutional or other legal questions upon signing bills into law (signing statements). Particularly since omnibus bills have become prevalent, signing statements have often been used to ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill.

In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress.

With these considerations in mind and based upon advice of the Department of Justice, I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:

The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.

Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
This memorandum shall be published in the Federal Register.
BARACK OBAMA

Sponsored and Cosponsored Legislation

This representative has not been identified as sponsoring or cosponsoring significant legislation related to this title.

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