Constraining Obama

Speaking to the Denver Police Academy on April 3, President Obama made some controversial remarks as part of his post-Newtown push for more gun control.

Most of the speech was ho-hum. It was the following that caught the right’s attention:

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.

At first glance these remarks may not seem so very terrible. After all, the Founders did try to put in place a government structure that would constrain elected officials from exercising untrammeled power. And those elected officials are indeed answerable not only to the Bill of Rights (including the Second Amendment) and the Constitution, but also to the will of the people as expressed through elections. And certainly, the idea that the Constitution acts as a constraint on the power of government officials did not originate with Obama; there are law review articles devoted to exploring the concept.

So what’s the problem? Just this: shouldn’t Obama have added something about what a wonderful thing those constraints are, how necessary and appropriate and important and even crucial, and how he himself is appreciative of them? Wouldn’t many previous presidents (with the probable exceptions of Wilson and FDR) have done something like that? And wouldn’t many of those presidents (Reagan in particular) have almost certainly included something to the effect that, although it was the Founders who put those structures in place, and it is the people whose votes preserve them, the entire edifice rests on the solid bedrock known as “natural rights”?

“Natural” vs. “legal” rights are concepts explored here:

Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable. In contrast, legal rights are those bestowed onto a person by a given legal system.

In its familiar and oft-quoted second paragraph, the Declaration of Independence makes a stirring statement of natural rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Although the Constitution is a legal document and therefore codifies and enumerates rights in a legal way, it attempts to ensure that those natural (rather than merely legal) rights will be protected–that is, to secure those already-existent natural rights that are inalienable and God-given. And note the definition of that all-important word “inalienable,” which means “incapable of being alienated, surrendered, or transferred.” In other words, inherent and permanent.

In his Denver speech, Obama’s words about the Founders and elections and constraint and the people are an almost perfect statement of how legal rights rather than natural rights operate. His statement seems to imply that it was the Founders who giveth (by means of the Constitution) and the people who might some day taketh away, if the people so desire.

These sentiments in Obama’s Denver speech do not stand alone. You may remember the curious radio interview Obama gave to WBEZ in 2001, the one in which he discussed what he called “redistributive change.” In that interview he observed that the Warren Court was not really all that radical because it did not “break free from the essential constraints that were placed by the Founding Fathers in the Constitution…that generally the Constitution is a charter of negative liberties.”

In that interview Obama went on to say that redistributive change would have to be approached in other ways, such as, for example, through community organizing. The interview is notable for its use of the same phrase as the Denver speech—constraints—and for giving the distinct impression that Obama regrets the fact that the Constitution functions as a drag on some of the goals he considers highly desirable.

And then there’s that strange quirk of Obama’s, his repeated tendency to quote the aforementioned second paragraph of the Declaration of Independence and yet leave out the word “Creator.” He has done this way too many times for it to be anything but intentional, and his removal of the religious element from the document and from the Founders’ message has been pointed out by many pundits.

But what is Obama’s intention in doing so? Seen in the light of his Denver speech, a case could be made that Obama’s primary aim is not really anti-religious per se. That may be secondary to his larger goal of letting the whole concept of natural rights fall by the wayside, because if our rights are not endowed by our Creator—if they are merely “endowed,” as Obama seems so fond of stating—then are they actually “inalienable”? On what firm ground might they rest?

In his Denver speech, Obama seems to be indicating a more potentially mutable foundation, one put in place by the Founders and continuing to exist only at the will of the people. It’s a subtle way of seeming to defend limited government while at the same time telling the people that they have the power to remove any of those constraints if they happen to think it would be in their interest to do so.

If, according to Obama, the Creator (however that force might be defined or conceptualized) was not involved in the endowment of these rights, then how did they come to be? Did the Founders think them up themselves? And why these particular rights and not others? What’s so special about them? Were the Founders’ decisions arbitrary? Can (and should) the people change their decisions? And does Obama wish he weren’t so constrained by that system those Founders put in place so very long ago?