Last night, Barack Obama argued against–as if anyone was arguing for–what conservatives have been more recently famous for railing against: “judicial activism.” According to the New York Times,
“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.
“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”
He added, “The concept of judicial restraint cuts both ways.”
Tellingly, the Times observes, “Mr. Obama, who formerly taught constitutional law, did not cite any specific decisions. He has long been a supporter of abortion rights, and repeatedly defended the court’s interventionist stance during the civil rights movement because minorities were cut out of the political process, even while saying that such a role would be inappropriate today.”
Apparently, no one questioned Obama about this. And his statement is clearly intended for public consumption rather than as a serious constitutional argument. In Federalist No. 10, James Madison argues against a democracy and in favor of a republic in order to protect minority rights.
Madison was writing not of the rights of any stigmatized or disadvantaged group, but rather the property rights of wealthy white males. And, it should be noted, one of his co-authors in the Federalist Papers, John Jay, went on to be the first Chief Justice of the Supreme Court.
Yet Obama charged–the Times here quotes from his book, The Audacity of Hope–that “in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.” First, it is not a democracy we are talking about, but a republic, as Madison was at pains to explain. Second, where Madison was correct was in his enunciation that minority rights require protection from majorities. In structure, this is the same argument that people of color, Catholics, Jews, and gays have made in pursuit of their own claims to civil rights. And this is an argument which is well understood amongst civil libertarians.
The point is precisely that no one, least of all members of oppressed groups, should trust in any democracy to protect their liberties. And Obama is surely aware of this. After all, it is a white majority country that enslaved African-Americans, treated women as chattel, pursued genocide against Indians, and continues today what David P. Barash and Charles P. Webel recognize in Peace and Conflict Studies as systemic violence against the working class, against the poor, and against people of color. It is in a white majority country that children hurl the term “fag,” ostensibly referring to sexual orientation (but see C. J. Pascoe, Dude, You’re A Fag: Masculinity and Sexuality in High School), as an epithet and in which persons suspected of homosexuality may be dragged from the tailgate of a pickup truck. It is in such a country that bigotry masquerades as “justice” in imprisonment rates.
Obama’s remarks, apparently made “in an impromptu conversation with reporters on a flight to Washington from the Midwest,” are therefore disingenuous. They follow Obama’s at first admirable, then subsequently dismal performance in the wake of an arrest of a Cambridge professor. They are a betrayal of anyone in this country who seeks a justice long denied.