Barack Obama Says The Constitution Is Flawed, And He’s Right

In what seems to be a follow-up to yesterday’s kerfuffle about Barack Obama’s comments about the Warren Court and redistribution of wealth, there’s now an audio clip of him from the same radio program discussing what he called a “fundamental flaw” in the Constitution:

I think it’s a remarkable document…

The original Constitution as well as the Civil War Amendments…but I think it is an imperfect document, and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time.

African-Americans were not — first of all they weren’t African-Americans — the Africans at the time were not considered as part of the polity that was of concern to the Framers. I think that as Richard said it was a ‘nagging problem’ in the same way that these days we might think of environmental issues, or some other problem where you have to balance cost-benefits, as opposed to seeing it as a moral problem involving persons of moral worth.

And in that sense, I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day, and that the Framers had that same blind spot. I don’t think the two views are contradictory, to say that it was a remarkable political document that paved the way for where we are now, and to say that it also reflected the fundamental flaw of this country that continues to this day.

Obama was referring, quite obviously, to those provisions of the Constitution that not only protected slavery, but enshrined it. First, there’s the infamous 3/5th’s clause in Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The provision in Article I, Section 9 that prohibited Congress from banning the slave trade before 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

And, the provision in Article IV that required the return of fugitive slaves who managed to escape into non-slave states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Each of these provisions enshrined and perpetuated an institution that constituted a gross violation of individual and violated the very principles upon which this nation was founded. It was a stain that ate at the very soul of the country and didn’t get erased until the blood of 600,000 men had been shed.

So, in that sense, <strong>Barack Obama is absolutely right when he says that the Constitution was “fundamentally flawed.”

And, you know what ? It still is.

For example, the Interstate Commerce Clause has been used to do far more than regulate commerce between the states. The Necessary and Proper Clause has been used to find powers for Congress and the President that exist nowhere in the Constitution. The Ninth and Tenth Amendments are, thanks largely to the vagueness of their language, largely unenforceable. Congress’s monetary powers have been ceded to an unelected Federal Reserve Board. And don’t even get me started about the flaws in some of the Amendments.

  • Mahndisa

    10 29 08

    Thanks for sharing this. He is right and I find that interesting. On the one hand, they spoke of inalienable rights,but on the other owned and or sanctioned the owning of another human being as chattle. This dichotomous attitude was encoded in our laws from way back and the fallout is a schizophrenic application of justice. This is why the war on drugs should end and soon.

    Raich v. Gonzales really bastardized the commerce clause and Cato did a great article on why the bailout was unConstitutional. It seems like people use the Constitution to their advantage when things are going well, but when things are tough, they use the Constitution as a document to justify damner anything! That bothers me!

  • freewheeler

    Obama is right, but because like so many of the provisions in the Constitution, he was being opaque and general. No kidding slavery represented a contradiction in the Constitution. It enabled and looked to enshrine literally the exact opposite of liberty. My concern is that by “revealing” this flaw, he is setting up for future attempts to radically violate the Constitution. This is particularly frightening because Congress and co. already laugh at the prospect of being restrained by it.

    Allowing the body that is meant to be restrained to interpret the rules is not a sustainable design.

  • Persnickety Curmudgeon

    1. best document which could be achieved under the conditions at the time.
    2. best document there has ever been.
    3. set up a mechanism to limit and eventually do away with slavery. not about prosperity but freedom which will eventually produce prosperity – and has absolutely NOTHING TO DO WITH FARINESS ONLY JUSTICE !!!