The Vetting: Obama Teaches Constitutional Law — Part I

Let’s take a trip via the wayback machine to the hallowed classrooms of the University of Chicago Law School. The year is 1996, and a young lecturer named Barack Obama is teaching constitutional law to a group of students. His first final exam question is about whether homosexuals can be barred from receiving state health care coverage for their infertility treatments.

The question deals with a hypothetical lesbian couple that wants to have a baby. Their state prevents health providers from providing infertility treatments for unwed couples; the couple’s state-provided healthcare therefore refuses them coverage for such procedures

Obama then presented an analysis of this question. That’s the way it works on law school constitutional law exams: you spot the issues, then offer an analysis of them. They never come down on one side or another. But they can give you important clues as to the way the student (or in this case, the lecturer) thinks.

Instead of wading through the legal thicket presented by any law school exam, let’s analyze Lecturer Obama’s main take. He makes the following points:

• “The fundamental right at stake … goes well beyond issues of bodily integrity, but instead involves the broader principle that the government cannot be in the business of deciding who should bear children and who should not – at least without offering up some pretty compelling reasons for doing so.” Obama even compares a state law banning infertility treatment for unwed couples to active sterilization.

• In a particularly noteworthy comment, Obama writes: “the connection between restricting infertility services to married couples and ‘preserving the integrity of marriage’ is so tenuous that it cannot be considered a narrowly tailored means of serving that interest.” This is arguable at best – of course preventing unmarried couples from receiving infertility treatment would be closely related to upholding the notion of traditional marriage. But this Obama comment gives us a clue as to his real feelings about the institution of marriage: it has nothing to do with bearing and raising children.

• Obama cannot help himself: in discussing whether “tradition” should play a role in restricting the so-called rights liberals so enjoy, Obama calls such arguments “troubling.”

• Obama also gets in a slap at judicial originalists – judges who state that the original wording of the constitution must govern – and instead embraces a philosophy called legal realism. Legal realism holds that all judicial decisions are essentially excuses for judges to act out their politics. That’s true for leftists, who write their views into the constitution; it’s not true for conservatives, who abide by the constitution. But that’s not what Obama thinks: “What is safe to say is that the views of particular justices on the desirability of rearing in children [sic] in homosexual households would play a big part in the decision.”

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