The Bill of Rights is a barricade protecting Americans from their government. Part of President Obama's legacy will be that he inflicted damage on that barricade, eroding freedom of speech, free exercise of religion, the right to bear arms and the right to due process.
Through his political arguments, executive actions and political leadership, Obama has taken some of the holes punched by previous presidents and made them broader or more permanent.
This means that after Obama leaves office, people will be more easily silenced, killed or disarmed by their own government. Obama is leaving behind a public less protected from state power.
Curbing speech in politics and on campus
The heart of the First Amendment is arguably the freedom to criticize the people in power. Obama's campaign-finance proposals have directly targeted that freedom.
He took the extraordinary step in 2010 of scolding the Supreme Court in his State of the Union for their ruling in Citizens United. The mere act of scolding could be part of his legacy, as his successors will have a precedent in waging political war against the judicial branch.
Citizens United struck down a campaign-finance provision barring groups such as nonprofit organizations, corporations and unions from attacking or praising politicians close to Election Day. Obama argued that the government has the authority to limit such "electioneering communications."
In fact, his deputy solicitor general stated in oral arguments that the government could even ban the publication of certain books too close to an election.
The solicitor general at that time was Elena Kagan. She is now on the Supreme Court, along with Justice Sonya Sotomayor, another Obama nominee. If Obama's third nominee, Merrick Garland, is also confirmed, "it seems quite clear that Citizens United will be reversed," says UCLA law professor Eugene Volokh.
Volokh believes Sotomayor is less antagonistic to political speech than are Kagan and Obama, which could leave a majority in place to defend the First Amendment in many cases.
He warned, however, of Obama's legacy in another free-speech battle: campus speech codes.
Obama's Justice Department and Education Department "have pressed for interpretations of Title IX that would essentially force universities to have speech codes," Volokh said.
Obama's DoJ has explicitly discarded the precedent on when "unwelcome conduct of a sexual nature" constitutes sexual harassment. The Justice Department, in an investigation of the University of New Mexico, stated that such conduct "constitutes sexual harassment regardless of whether it causes a hostile environment or is quid pro quo."
Since "unwelcome conduct of a sexual nature" can include something as simple as a dirty joke, according to the government, Obama's DoJ has arguably said universities must ban dirty jokes or even published statements about sex and sexuality that people find offensive.
This paves the road for a future DoJ to force campuses to bar all sorts of politically incorrect arguments about sexuality, including expression of religious or traditional ideas about marriage or gender roles.
Volokh has written: "The same logic, if accepted, will likewise extend to racially themed speech that some people find offensive, plus probably also anti-gay speech and the like."
Free exercise of religion
Narrowing the free exercise of religion may also be part of Obama's legacy.
"Freedom of worship" was often Obama's preferred phrase, in contrast to the actual freedom guaranteed in the First Amendment, the "free exercise of religion."
The Obama administration laid down very clear and very narrow boundaries for religious freedom.
Obamacare (the Affordable Care Act) included a provision requiring employer-sponsored health insurance to cover every penny of "preventive care" for women. Obama's Department of Health and Human Services decided that this encompasses all forms of contraception, including sterilization and morning-after contraceptives, which can kill a fertilized egg, according to the manufacturers.
Many employers objected to paying for contraception, which the Catholic Church teaches is contrary to moral law, and even more objected to covering sterilization and morning-after contraception, which can arguably induce abortion. Obama's administration first issued a very narrow exemption covering churches. After heavy pressure, it slightly expanded the exemption to include other religious organizations.
But religious individuals operating private businesses also value their freedom of conscience and free exercise, so they challenged the rule. The administration stood up to Hobby Lobby, the family-owned chain of craft stores, whose owners argued that government was violating the 1993 Religious Freedom Restoration Act, or RFRA.
The administration argued in a legal brief that Hobby Lobby's owners don't have free exercise rights in their operation of their store. "Hobby Lobby is a for-profit, secular employer," the Obama administration wrote in a brief, "and a secular entity by definition does not exercise religion."
The principle that individuals lose their constitutional rights when they combine into groups — such as businesses or nonprofits — is the same principle behind the administration's arguments in Citizens United. Both of Obama's Supreme Court nominees share his view on the question.
When the Little Sisters of the Poor lost their challenge to Obama's contraception mandate in the 10th Circuit in 2014, it was Obama appointee Scott Matheson who wrote the opinion that broke new ground.
While RFRA and all previous RFRA jurisprudence had prescribed that judges take plaintiffs at their word as to what their religious beliefs are, Matheson wrote an opinion in which he personally decided what it was that the nuns believed.
The Obama administration argued that the Little Sisters were "mistaken" to believe that it violated their consciences to sign a form ordering their insurer to cover contraceptives. Matheson agreed.
Other judges on the circuit called for a review of the case on the basis that Matheson's ruling was "clearly and gravely wrong."
The dissenters wrote that Matheson "does not doubt the sincerity of the plaintiffs' religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief ... But it is not the job of the judiciary to tell people what their religious beliefs are ..."
The Obama administration argued that the judges should and could decide for the Sisters what their belief really was. Obama appointee Matheson made exactly that judgment. To date, his and Obama's novel argument has lost in the courts. But given eight years of Obama appointees to the courts, the Obama administration's argument could take hold. Conscience protections would evaporate.
Obama has opened up still other new fronts against the freedom of religion.
His Equal Employment Opportunity Commission, for instance, ruled that a Catholic school in Georgia must keep a gay teacher employed after he publicly announced he was marrying a man, in essence saying that codes of behavior grounded in ancient religious teaching were illegal if they clashed with modern ideas about non-discrimination that even Obama himself rejected just a few years ago.
The president's biggest long-run impact on religious liberty may be less his legal arguments and judicial appointees than his bold political decision to provoke a culture war.
Through executive regulatory processes, Obama mandated contraception coverage (even though the Affordable Care Act doesn't call for it). Then he (not the law itself) chose to make the religious exemptions narrow.
When Republicans pushed back, Obama's team dialed the culture war up to maximum volume, making the mandate and religious conservatives' requests for exemptions a centerpiece of the 2012 campaign.
Obama even put law student Sandra Fluke on stage at the Democratic National Convention in prime time to argue that allowing employers to choose whether to pay for their employees' contraceptives amounted to letting bosses "control" "access to birth control."
In short, Obama trolled religious conservatives. He forced them to do something they found immoral, and when they asked to be left alone, he blasted them as misogynistic theocrats.
This Obama approach spread throughout elite culture. After the Supreme Court obliged states to conduct gay marriages, Apple CEO Tim Cook took to the pages of the Washington Post to portray wedding photographers and bakers as the ones imposing their morality.
Democrats in the 1990s championed the Religious Freedom Restoration Act. By the end of the Obama administration, RFRA has become a curse word, a retrograde hate-attack by the Religious Right.
Obama transformed the Left's culture war stance from "live and let live" to "bake me a cake, or else." And he brought most of the media and half of the government with him. This battleground, prepared by Obama, will be where future cultural battles are fought. Will Catholic hospitals be forced to perform abortions? Will Washington crack down on homeschoolers?
President Obama has declared open-season on gun rights, moving gun control from a cause championed only by a passionate minority of the party's base to a central plank in the platform, and a sine qua non for any Democrat with ambitions.
If Democrats maintain the gun-control stance that Obama has prescribed, it's only a matter of time before they break down Second Amendment protections that have long stymied gun-controllers.
Gun control was dead in 2008 when Obama ran for president. The Heller decision, affirming the individual right to bear arms, came down at the beginning of Obama's general-election run that year, and the presumptive nominee barely said a word.
"I have always believed that the Second Amendment protects the right of individuals to bear arms," the candidate said in a quietly emailed statement. "I have said consistently that I believe that the Second Amendment is an individual right," Obama argued on Fox News, "and that was the essential decision that the Supreme Court came down on."
That was as bold as he was willing to get before taking office.
"[T]he gradual disintegration of the gun control movement that once drove Democratic politics is now pretty much complete," Dan Schnur, a Republican operative, wrote in the New York Times.
"For decades, the true meaning of the Second Amendment has been the subject of wrenching public debate. But last Thursday, when the court expressly and historically extended the right of gun ownership to private citizens, the Democratic Party's nominee for president merely shrugged."
Eight years later, Heller and the Second Amendment still stand, but an army is now arrayed against it. The army is the Democratic Party, and they were led to this battle by the president.
After he won re-election, and after the school massacre at Sandy Hook, Conn., Obama went on the war path against guns. On a stage filled with children, Obama announced 23 gun-related executive orders in January 2013, which beefed up background checks, among other things.
He wrapped up his State of the Union address that month with a barn-burning bit of rhetorical fire, demanding a vote on gun control.
He began demanding Congress pass gun laws "if there's even one life that can be saved." Obama didn't move the ball legislatively, but he declared war, and his party followed him, both in ambitious gun-control policy and bombastic rhetoric.
Policy-wise, some Democrats took up Obama's flag, and called for a new "assault-weapon ban," which would outlaw many rifles. Senate Democratic leaders, along with Pennsylvania Republican Pat Toomey, in 2013 pushed a bill requiring universal background checks, including many private sales.
In 2016, Democrats, along with Maine Republican Susan Collins, championed a bill to strip gun rights from all individuals on terror watch lists and no-fly lists.
Rhetorically, Democratic lawmakers also followed Obama's lead.
Citing her Senate colleague Chris Murphy, Elizabeth Warren tweeted in June, "@ChrisMurphyCT said it right: The @SenateGOP have decided to sell weapons to ISIS."
This assault on due process, and the willingness of supposedly serious lawmakers like Warren to engage in flat demagoguery, reflected how far Obama had pulled his party in eight years.
His judicial appointees agree. In a 2010 gun-control case, three liberal justices, including Sotomayor, Obama's only appointee at the time, rejected a core idea of Heller, that individuals have the right to bear arms.
"I can find nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes."
Kagan wasn't on the court then, but her career reveals a sclerotic view of the Second Amendment. "I'm not sympathetic" to the claim that "the District of Columbia's firearms statutes violate [an individual's] constitutional right to 'keep and bear Arms,' " Kagan wrote, while a clerk to Justice Thurgood Marshall.
Due process, drone strikes and wiretaps
"Congress should act to make sure no one on a no-fly list is able to buy a gun," Obama said in December 2015. "What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?"
There's an obvious argument: The no-fly list is created without transparency or oversight. Individuals are added to the list without due process, and there is no process for getting removed. Taking away gun rights based on this list seems to violate the Fifth Amendment, which includes the words, "No person shall be deprived of life, liberty or property, without due process of law."
Obama's endorsement of congressional Democrats' "No Fly-No Buy" ploy cemented the party as squarely opposed to both the Second and Fifth Amendments, a position that held firm throughout the 2016 Democratic National Convention.
This fits the pattern of Obama's legacy on other civil liberties protected in the Bill of Rights: If you think of other recent presidents, especially President George W. Bush, as workmen who chiseled away at civil liberties, and set down their pick axe, Obama has taken up that axe and continued their work of cracking the foundation of due process and privacy rights.
Anwar al-Awlaki was an American citizen who had never been convicted, or even charged with a crime when Obama ordered him killed by a drone strike in 2011. The administration called him "an imminent threat," but he wasn't driving to a terrorist attack when Obama's drones cut him down.
"It was in deliberately targeting al-Awlaki," writes Pulitzer Prize-winning journalist Charlie Savage in his book Power Wars, "that the United States on Obama's watch broke new ground."
Obama also set new precedents, and new records, in prosecuting leakers. "Law enforcement officials on Obama's watch took several steps of unprecedented aggression when investigating and charging leak cases," Savage wrote.
It wasn't merely the number. Obama brought nine criminal leak cases, while all 43 previous presidents brought a combined total of three. Obama went after leakers at 129 times the rate of his predecessors.
The president's lawyers set this record with the help of new legal arguments, Savage laid out. They equated leaking with treason, designated a reporter a criminal coconspirator and worked to establish as a legal precedent that the First Amendment's freedom of the press doesn't protect reporters from being prosecuted for protecting their sources.
Obama's legacy will also include making permanent some of George W. Bush's post-9/11 tactics, such as military tribunals and indefinite detention of terrorist suspects.
The president, in his 2009 inaugural address, promised to take up the task of "remaking America." The Bill of Rights, as a barricade creating a sphere of freedom from government intrusion, has always been an essential part of America. Obama has, in fact, "remade" the Bill of Rights. He leaves that sphere of freedom a bit smaller. And he leaves America diminished and more easily intimidated.