RUTHFULLY YOURS

Reprinted from Hoover.org.

The sudden death of Supreme Court Justice Antonin Scalia has reminded us of the great divide in opinion over how the Constitution should be interpreted. Scalia was the most influential and consequential adherent of “originalism” or “textualism.” In Planned Parenthood vs. Casey (1992), he succinctly defined this approach: “Texts and traditions are facts to study, not convictions to demonstrate about.” Since the Constitution is a written text, a judge has the obligation to discern “the plain, original meaning of the constitutional text,” as he said later in NLRB vs. Canning (2014). The alternative is to substitute “freewheeling interpretations” that serve politics and ideology rather than the Constitution’s precepts and principles, and the traditional understanding of its words. “The Constitution,” Scalia said in a speech in 2012, “is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”

Scalia was a foe of the idea of the “living Constitution,” as his phrase “living organism” shows. Progressive President Woodrow Wilson was one of the first to espouse the view Scalia rejects. The Founders’ Constitution, with its balance of powers, Wilson said, was a “variety of mechanics” founded on the “law of gravitation.” But a government is a “living thing” that falls under “the theory of organic life” and so is “modified by its environment, necessitated by its tasks, [and] shaped to its functions by the sheer pressure of life.” Thus, according to the influential progressive writer Herbert Croly, to better govern and improve the nation, the people had to discard the “strong, almost dominant tendency to regard the existing Constitution with superstitious awe, and to shrink with horror from modifying it even in the smallest degree.” The assumption is that the Founders could never have anticipated the novel technological and social changes in America that had rendered the Constitution an anachronism.

That same assumption underlies much “living Constitution” jurisprudence today. Changing social mores have led Supreme Court justices to tease out of the Constitution “rights” it never mentions. In Griswold vs. Connecticut (1965), Justice William O. Douglas discovered a right to privacy in the Constitution’s “emanations” and “penumbras,” and in Casey vs. Planned Parenthood (1992), Anthony Kennedy found “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Subsequent decisions on issues like abortion and same-sex marriage have followed the same imperative to “plug the gaps,” as Judge Richard Posner has put it, left in the Constitution by changes in technology and progress in social habits, values, and beliefs.

This conflict between how the Constitution should be interpreted, however, is the result of a deeper, more ancient clash of ideas––how we understand human nature. Are core human attributes––particularly the destructive appetites and passions––permanent aspects of the human condition? Or is human nature “plastic” and able to be improved once environmental obstacles like poverty or ignorance are removed, and after better political, economic, and social institutions are created?

President Obama faces contentious meetings with European and Gulf state leaders during his trip this week to Europe and Saudi Arabia. Why? Because of his continuing refusal to adopt a serious strategy to defeat ISIS, confront Iran’s increasingly belligerent behavior, and his inexplicable comments published in an April 2016 Atlantic article that blamed Europe and Gulf states for his administration’s growing list of foreign policy failures.

The Atlantic article will lead to some awkward questions for Mr. Obama from the leaders of America’s closest allies.

For example, the president will undoubtably be asked by European and Gulf state leaders to explain how, after his administration ignored the growing crisis in Libya for the past four years and his 2011 “leading from behind” strategy during the Libyan civil war, he can criticize European and Gulf states of being “free riders” and not having “skin in the game” in the Libyan situation.

I imagine British Prime Minister Cameron will say to the president, “But Mr. Obama, France and the United Kingdom took the lead in fighting that war because you refused to.”

Saudi leaders are more concerned about Obama’s comment in the Atlantic article that Saudi Arabia needs to find a way to “share the neighborhood” with Iran and “institute some sort of cold peace.” These incoherent remarks must have enraged Saudi officials in light of the July 2015 nuclear deal with Iran which they strongly oppose and a recent surge in Iranian missile tests.

Obama’s tin-eared comments about Saudi Arabia may be why Saudi King Salman was not there to greet him when the president’s plane landed in Riyadh Wednesday. The King did greet other heads of state when they arrived, according to Reuters.

Given the way he has ignored Saudi security concerns and tilted toward Iran during his presidency, I assume the Saudis have written off Mr. Obama and recognize that most experts in Washington – Republican and Democrat – do not share his radical and disjointed foreign policy views. The Saudis know their strong relationship with the United States will survive Barack Obama’s presidency. But even if they do understand this, Saudi leaders also know that this president’s failed Middle East policies did enormous damage to Middle East security that they will have to live with for many years to come.

“If Mr. Obama left office today he’d leave the relationships with America’s three most important partners worse than when he found them; and relations with one of Washington’s erstwhile adversaries – Iran — better.”

Life’s about learning, Crosby, Stills, Nash and Young famously sang. And it may well be that in the last year of his presidency, Barack Obama is finally learning that imperfect partners in the Middle East are better than no partners at all, particularly for a president disinclined to invest in a large U.S. presence in the region.

None of this means that relations with Saudi Arabia, Egypt and Israel will fundamentally improve before 2017 — too many divergent interests preclude that. But recent U.S. efforts suggest that Mr. Obama may at least want to stabilize them. With the Middle East a mess, he can’t afford to hand to his successor three relationships in crisis.

Mr. Obama’s recent visit to Saudi Arabia – his fourth since taking office (he’s visited Israel and Egypt only once) reflects the continued importance of the Kingdom in U.S. foreign policy, however strained the relationship has become. Declining dependence on Arab hydrocarbons, differences over Iran and Syria, and the famously missing 28 pages in the 2002 Congressional report that might contain damning information on official Saudi knowledge or role in 9/11 have injected tension into the relationship. Still, the president’s visit wasn’t a disaster and led to new areas of cooperation between the U.S. and the Gulf Cooperation Council. Mr. Obama is likely to hand over to his successor a U.S.-Saudi relationship that, while still fraught with significant divides, is functional and working to the advantage of both.