- The Washington Times - Thursday, February 24, 2011


In the long run, conservatives are going to look back on the day Barack Obama threw the Defense of Marriage Act under the bus with a special fondness. With a flick of his presidential wrist, he has just freed future GOP presidents from having to defend the unconstitutional laws that liberal Congresses have been spewing out for the last century.

No more do we have to spend taxpayer dollars fighting to defend gun control’s violations of the Second Amendment nor do we have to defend the First Amendment usurpations of campaign-finance reform. Landowners across the country will be glad to know that when a Republican is in the White House, the takings clause of the Fifth Amendment will be taken seriously in the White House even if Congress and the Supreme Court pretend it is not there. Freedom will no longer be the minimum judges will accept, but the most a White House can get away with.

It is true that most, if not all, of the administrations in the last 75 years have done exactly what President Obama has done - decline to use the executive’s resources to defend laws that the administration believes to be unconstitutional.

But there is one big difference. In past administrations, the tendency has only been to use this tool in obscure areas of the law or on issues that don’t loom very large in the public imagination.

For instance, Bill Clinton wouldn’t defend a law booting HIV positive people from the military - a position that a Republican Congress endorsed even before courts could act. George H. W. Bush fought Federal Communications Commission (FCC) regulations. Ronald Reagan simultaneously enforced and declared unconstitutional the independent counsel statute. Jimmy Carter defeated restrictions on which American citizens were allowed to buy military surplus rifles. The hot button of race has been an issue, but only in cases involving things like hospital or broadcast regulations.

Now Mr. Obama has expanded the battlefield by taking on homosexual rights - one of the two most bitterly fought social issues of recent decades - on the specific issue of marriage, something that concerns the family life of every single American. The balance of power in Washington won’t change over the details of FCC rules, but it will change over an issue like homosexual marriage.

Mr. Obama’s move will go down in history exactly the way Senate Democrats’ decision to destroy Robert Bork has. There were confirmation fights before Judge Bork and there were judicial nominees rejected, but never like that. And to this day judicial battles have fundamentally changed. The renewed focus on judges has changed the court for the better. On Wednesday, once again, the balance between courts and the presidency and the legislative branch and the executive have both shifted.

How far is to be decided, but whatever the final results, this newly expanded constitutional battleground between the branches of government is a gift to the growing Tea Party ethos among Americans.

At the core of the Tea Party movement is the idea that we need to reclaim the original understanding of the Constitution and along with it, the full rights that the Founding Fathers secured for us. For too long, the Constitution was whatever Congress and the president could get the Supreme Court to go along with.

The result was lowest common denominator constitutionalism - all government had to do was protect the minimum possible interpretation of our constitutional rights. That was the opposite of what the Framers intended. Congressmen and presidents swear to abide by the Constitution just as Supreme Court justices must, thus creating three guardians of liberty, not one.

The competition between the branches of government was supposed to create jealousy between Congress and the White House, where each would fight to stop the other from expanding past its constitutionally enumerated powers. Instead, the presidential tradition of deference to the laws passed by Congress has resulted in a conspiracy of the legislature and the executive to expand their powers in tandem, marshaling a growing legal army funded by Congress and deployed by the president to push the Supreme Court to go along.

That truce may be over now. The Tea Party’s resurgent constitutional ideal is so powerful and has spread so quickly and deeply into American politics that even the Obama administration, whose reckless disregard for freedom created the Tea Party, can’t help but be influenced, too. Or maybe it is just an accident that Obama’s political convenience actually serves the interests of freedom.

Regardless of your intent Mr. Obama, you’ve done the nation a great service. Now let the battle begin.

David Mastio is deputy editorial page editor of The Washington Times.

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