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04 April 2012

Former Obama Student: Obama's Ignorance of Constitution Embarrassing

Prof. Thom Lambert of the University of Missouri Law School has responded with alarm to President Barack Obama's attack on the Supreme Court and the power of judicial review by recalling his own days as Obama's student at the University of Chicago.

Lambert, who writes for the "Truth on the Market" blog, not only studied under Obama, but also clerked for the federal judge who issued an order yesterday demanding that the Department of Justice clarify whether the government believed courts had the power to overturn constitutional laws.
Lambert wrote:

Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”:  “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question.  It’s no (well, technically yes…he didn’t).  President Obama taught “Con Law III” at Chicago.  Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student).  Con Law III covers the Fourteenth Amendment.  (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)  Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.

Lambert added: "Fortunately...[t]his morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff....I must say, I’m pretty dang proud of Judge Smith right now.  And I’m really looking forward to reading that three-page, single-spaced letter."


If you want to understand why Obama has such a flawed and ignorant understanding of con law, take a look at his syllabus from when he was a lecturer at the University of Chicago.  I swear to you:  My con law class -- and I went to a great law school, too -- was NOTHING like this nor are most if you ask other lawyers.  Yes, I was introduced to Derrick Bell and critical race theory in school, but not in con law.  We spent, probably, two classes on CRT in labour law.

The idea that it would be "unprecedented" for the Court to overturn a law passed by Congress is just ludicrous.  The Court overturned the Judiciary Act of 1789, the Income Tax Act of 1894, the National Industrial Recovery Act of 1933, the Agricultural Adjustment Act of 1933, portions of the Violence Against Women Act of 1994, the Gun-Free School Zones Act of 1990, parts of the Child Pornography Prevention Act of 1996, the Military Commissions Act of 2006, and the Line Item Veto Act of 1996, to name a few.

According to the Government Printing Office Database, the Court has struck down as unconstitutional or preempted the following number of laws between 1789-2002:

Acts of Congress held as unconstitutional:  158

State statutes held unconstitutional:  935

City ordinances held unconstitutional:  222

State and city laws preempted by Federal laws:  224

Total Federal, state, local laws declared unconstitutional:  1,315

Total state and local law preempted by Federal laws that were upheld by the Court:  224

Total laws overturned, all governments:  1,539

Then, when he said this yesterday, I couldn't believe it:

"Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal."

Not only did the Court overturn several New Deal programmes -- the National Industrial Recovery Act of 1933 and the  Agricultural Adjustment Act of 1933 to name two -- LOCHNER HAD NOTHING TO DO WITH THE COMMERCE CLAUSE OR THE FEDERAL GOVERNMENT. IT WAS A CASE DEALING WITH NEW YORK STATE LAW AND RIGHT OF CONTRACT.

I understand that many people believe that he is the "evil genius" and purposefully trying to mislead the lemmings out there...and there is some truth to that, but why on Earth would he make such colossally embarrassing statements if he is really brilliant.  Bringing up Lochner in the context of the Commerce Clause is like a man wondering if his car battery will start because a storm knocked out the electricity at his house.  It is stunningly ignorant.

- Sophie

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