President Obama’s Flawed Constitutional Law Lecture

January 7th, 2016

During his press conference, where he highlighted his new executive action on guns, the President offered a throwback to the past with a mini-constitutional law lecture. He joked, “I taught constitutional law, I know a little about this, I get it.” Alas, he got quite a few things wrong.

First, my undying dislike of Oliver Wendell Holmes is compounded whenever someone misquotes the “fire in a theater” example. That includes the President, who said:

We all believe in the First Amendment, the guarantee of free speech, but we accept that you can’t yell “fire” in a theater.

For the umpteenth time, this is no longer an accurate statement of constitutional law. To the extent it ever was the rule of law–Schenck mentioned “falsely shouting fire in a theater”–the Court’s decision in Brandenburg v. Ohio and its progeny have abolished that standard.

Second, the President inverts our presumption of innocence for the rights of the accused. He said:

We understand there are some constraints on our freedom in order to protect innocent people.

When he says “innocent people,” he isn’t referring to those accused of crimes who are innocent. He is referring to people who may be harmed by dangerous bad guys. Our Constitution says nothing about protecting innocent people. In fact, our Constitution is aimed at protecting dangerous people, by providing them with a panoply of rights that make it harder to convict them of crimes, and take away their rights. The warrant requirement is not about protecting innocent people. It is about making it harder for the state to seize evidence from dangerous people. Miranda and the exclusionary rule? Yep, about helping dangerous people. The Due Process Clause? Yeah, you need to give process to someone before you lock them up, even if they pose a threat to “innocent people.” That’s been the rule since Magna Carta. The states–and not the federal government–do have a general police power to “protect innocent people,” but those powers are trumped by the Bill of Rights.

Third, the President said our right to privacy must be tempered by security.

We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It’s not because people like doing that, but we understand that that’s part of the price of living in a civilized society. Even after San Bernardino, they’ve refused to make it harder for terror suspects who can’t get on a plane to buy semi-automatic weapons.  That’s not right.  That can’t be right. We do not have to accept this carnage as the price of freedom.

Is this the same person as the Senator in 2006 who said:

Americans fought a Revolution in part over the right to be free from unreasonable searches – to ensure that our government couldn’t come knocking in the middle of the night for no reason. We need to find a way forward to make sure that we can stop terrorists while protecting the privacy, and liberty, of innocent Americans. We have to find a way to give the President the power he needs to protect us, while making sure he doesn’t abuse that power. It is possible to do that. We have done it before, we could do it again.

And in 2007:

This Administration also puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.

What a difference 7 years makes. In 2007 he said there was a “false choice between the liberties we cherish and the security we demand.” In 2016 he said we “cherish our right to privacy, but we accept” limitations on it as “the price of living in a civilized society.” As a Senator, he sought to protect the “privacy and liberty of innocent Americans” and “take out the terrorists without undermining our Constitution.” Now he wants to deprive someone of a constitutional right, without any due process of law (forget about the 2nd Amendment) because someone is a “terror suspect.” That doesn’t even meet the standard for probable cause for a warrant! It’s remarkable to see how he has changed his views.

Fourth, the President was trying to make a rhetorical point that the rights of free exercise and free association are just as important as the right to keep and bear arms, by noting that people have been killed in churches and theaters.

All of us should be able to work together to find a balance that declares the rest of our rights are also important — Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them.  Because our right to worship freely and safely –- that right was denied to Christians in Charleston, South Carolina.  (Applause.)  And that was denied Jews in Kansas City.  And that was denied Muslims in Chapel Hill, and Sikhs in Oak Creek.  (Applause.)  They had rights, too.  (Applause.)  Our right to peaceful assembly -– that right was robbed from moviegoers in Aurora and Lafayette.

This is profoundly incorrect as a legal matter.  Only the government can violate the First Amendment rights of free exercise and assembly. A homicidal maniac intent on killing people, no matter how awful his acts, violates no constitutional rights. None. And to make the point more clearly, the Second Amendment does not give anyone the right  to murder anyone. I know this point should be obvious, but in common parlance, the right to bear arms often bleeds into a right to kill people.

Fifth, I’m glad the President cites the Declaration of Independence, with a reference to a “right to life, and liberty, and the pursuit of happiness.”

Our unalienable right to life, and liberty, and the pursuit of happiness -– those rights were stripped from college students in Blacksburg and Santa Barbara, and from high schoolers at Columbine, and from first-graders in Newtown.  First-graders.  And from every family who never imagined that their loved one would be taken from our lives by a bullet from a gun.

President Obama may recall that this document was announced to the public on July 4, 1776. A close study of the period before 1776, where Americans were routinely searched without warrants and were disarmed by an unaccountable despotic power, and the war that followed 1776, should reaffirm how important the right to keep and bear arms is to our constitutional order.

As an aside, the President once again referred to the ACA as “Obamacare.”

That’s why we made sure that the Affordable Care Act — also known as Obamacare — (laughter and applause) — that law made sure that treatment for mental health was covered the same as treatment for any other illness.

I keep a running tally of these. He usually calls it “Obamacare” when discussing the benefits of the law. When the question is critical, it’s ACA all the way.