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President Obama recently nominated Berkeley law professor Goodwin Liu for the 9th Circuit Court of Appeals, looking to shift an already-radical panel even further to the left. This week, Senate Republicans, exercising a prerogative repeatedly used by Senate Democrats during the Bush years, filibustered Liu. The media, of course, tried to turn the story into another Republicans-hate-minorities narrative which implied that anybody nominated who hasn’t killed anybody or donated to a GOP candidate ought to reach the bench unscathed.
Liu should never reach the bench. It’s not because he teaches at Berkeley or because he’s a minority. (After all, Clarence Thomas is strict constructionists’ favorite judge, even more so than Scalia). It’s because he’s directly out of the “constitutional analysis requires discarding the constitution” mold of judicial theory.
Liu, like Obama, believes that the Constitution is not a document of negative liberties – i.e., liberties that exist because we restrict government from intruding into our lives. Instead, he thinks that the Constitution is a charter of positive liberties – i.e. “liberties” that aren’t liberties at all, but privileges bestowed by a benevolent state redistributing resources to its citizens. Where does Liu see this in the Constitution itself? He doesn’t. Instead, as he wrote in the Yale Law Journal, he finds it in “the social citizenship tradition [which] assigns equal constitutional status to negative rights against government oppression and positive rights to government assistance on the ground that both are essential to liberty.” The fact that this is considered legitimate fodder for one of the nation’s top legal journals demonstrates the decay of American legal education – by this same logic, I’d love to write a piece about how the Affordable Care Act implicitly endorses full laissez-faire health care due to America’s social citizenship tradition, which requires that people take responsibility for their own health.
But Liu goes even further. He actually states that the Constitution mandates “a minimal safety net” (where?), “basic employment supports” (where?), “health insurance” (where?), “child care” (where?), “transportation subsidies” (where?), “job training” (where?), and a “robust earned income tax credit” (where?). Apparently Liu isn’t just ideologically driven, he’s constitutionally illiterate. The founders’ America lacked each and every element named by Liu, yet somehow a document they wrote requires all of them. Peculiar.
Remember Peggy Joseph? She’s the woman who exclaimed that with Obama as president, “I won’t ever have to worry about putting gas in my car. I won’t have to worry about paying my mortgage.” Remember how we scoffed at her? If Liu had his way, she’d be able to sue under the constitution and force the government to provide the gas and the mortgage. In a sense, Peggy Joseph was smarter than the rest of us – she saw the essence of the Obama administration and of legal “scholars” like Goodwin Liu, who will enact redistributionist policies from the bench.
It doesn’t end there. Liu has stated that buzzwords like “free enterprise,” “private ownership of property,” and “limited government” are in fact “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” Sensing some anger here toward the prevailing American orthodoxy for the last few hundred years?
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