Remember the 2001 interview about the Constitution by then-Illinois state senator Barack Obama that surfaced during the 2008 campaign? In it, Senator Obama complained as he captured perfectly the constraints on government created by the Constitution. Speaking about the Supreme Court in the 1950s and '60s during the civil rights movement, Obama expressed regret that the High Court never ventured into the issues of redistribution of wealth, and of more basic issues of political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted it the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. (emphasis mine) Our future president called the civil rights movement's focus on the courts—and the courts' subsequent failure to break free of the constraints imposed by the Constitution—a "tragedy." But a lot of us call it basic fairness and adherence to our founding principles. We believe it's a good thing that we came so far in achieving racial justice while keeping faith with our Constitution.
Some like to dismiss all this talk about staying true to our founding documents as the ideological rants of people who are obsessed with constitutional theory. But whether we remain true to our Constitution or not has practical, real-world consequences for all of us.
The Supreme Court, along with the rest of the federal judiciary, has tremendous power over our lives today. Their rulings mean the difference between free political speech and censored political speech, property rights that are protected by government and property rights that are routinely violated by government, and the survival of innocent life and the state-sanctioned killing of innocent life. The reason this is the case, is because so many of the people who appoint and approve our judges and justices erroneously believe the courts' duty isn't to interpret the law but to make the law. In cases where their agenda can't prevail among the people's representatives in Congress, they have turned to the courts to make policy. That means having judges and justices who are no longer guided by the Constitution and the law, but by their personal opinions. President Obama himself has said that, in the really difficult, consequential cases, justices shouldn't go with the law but with their hearts. "That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy," the president said.