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Obama, FDR, the Constitution, and Rights

Posted By Mark W. Hendrickson On November 4, 2008 @ 6:00 am In The Law | No Comments

Earlier this year, in “The Next Great Depression,” I noted several parallels between the political economy of the early 1930s and today. Another intriguing parallel between then and now is the striking similarities between Barack Obama and Franklin Delano Roosevelt.

FDR attended Harvard and Columbia Law School. Obama attended Columbia and Harvard Law. Both of these Democrats share the gift of inspiring people with their oratory. They’re both charismatic, even captivating, personalities who have elicited adoration from supporters and visceral disdain from opponents. Both pursued the presidency at a time of economic crisis despite having manifested no understanding of the most important economic question of all: How is wealth created?

Obama, like FDR, chafes at the restrictions on government power imposed by the U.S. Constitution. In Rooseveltian fashion, he views the Constitution as a nuisance that impedes the speedy expansion of government power. That is the “bottom line” of Obama’s 2001 remarks on the Constitution that were aired repeatedly on talk radio last week, in which he explicitly lamented that the Constitution codifies negative law—that is, it stipulates what government can NOT do to Americans—instead of positive law which would stipulate what the government should do for Americans.

Furthermore, a President Obama, having expressed a preference for judges who can see things from the personal perspective of the poor, the gay, the old, of ethnic minorities, instead of administering impartial justice, would appoint federal judges and Supreme Court justices who interpret the Constitution creatively. In doing so, he might appear to be the second coming of FDR, who sought to pack the Supreme Court with justices like Chief Justice Charles Evans Hughes, whose constitutional philosophy was “the constitution means whatever the Supreme Court says it means.”

What is the import of Obama’s philosophy? How radical is it?

Obama’s philosophy of law is called “legal positivism.” It refers to using the law to build a “great society” from the top down. In reality, it is simply another term for “central planning” or “social engineering.” It is the favored ideology of those who believe that government power is primary and individual rights are expendable in the pursuit of the greater good of the collective. Many countries experimented with legal positivism in the 20th century, and those unfree societies were uniformly depressing places for the common citizen.

The essential difference between positive law and negative law is this: When laws are negative, they prevent people from interfering with other people’s God-given rights to employ their lives, their energy, and their property in the way of their choosing (which necessarily means that actions that would infringe on another person’s identical rights are forbidden). Under negative law, you retain your liberty as long as you don’t hurt another. By contrast, once law becomes positive—i.e., compelling others to perform specific actions—then a society has started down the proverbial slippery slope to tyranny. Under positive law, you can be put in jail for not doing what you are ordered to do; that is, you conceivably could be deemed a criminal while sitting at home minding your own business.

When law is positive, society is hierarchical, like in Orwell’s Animal Farm, where “all animals are equal, but some are more equal than others.” That is, some people have power over others, and there is no bright-line principle defining the limits to which government power trumps individual rights. Without such principle, a society necessarily stumbles into a realm of legal relativism. There are no objective standards of right or wrong beyond what a shifting democratic majority demands. There is no “rule of law,” but rather a system of privileges that engenders social instability and divisiveness.

This was FDR’s philosophy (abetted by Charles Evans Hughes’ loose-construction constitutional philosophy), and it undergirded his assertion that every American has a “right” to “a job,” “a decent living” [i.e., income], a “home,” “adequate medical care,” and so on. As much as we may want everyone to have those good things, there can never be a “right” to have them. “Right” means a title of ownership. If someone has a right to have all these things, then someone else must be obliged to supply them. Thus, citizens taxed to pay for such benefits find that they have no right or title to that portion of their property, but someone else does. Someone else’s “right” negates their right. “Right” equals “no right.” How fiendishly Orwellian. The FDR/Hughes/Obama philosophy is that some citizens should be compelled to work without compensation for the benefit of others.

As ominous a picture as I have painted of his legal positivism, constitutional relativism, and destructive theory of rights, Obama isn’t starting a new movement in our country. He is simply taking the latest step in an old movement. Our Constitution has been terminal for a long time. But that’s a topic for another time. Nevertheless, hang on to your hat (and your wallet). We could be about to embark on a very rough voyage.


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