[Marxism] Obama and the Constitution
lnp3 at panix.com
Thu Jul 10 07:30:17 MDT 2008
Obama veers to the right, but does he need to take the Constitution with
By Doug Kendall and Dahlia Lithwick
Barack Obama's rightward drift in recent weeks has hardly gone unnoticed
or unrewarded. What's most fascinating about his efforts to appeal to
the American center is the extent to which Obama, as a constitutional
law professor and Harvard Law Review president, has repeatedly chosen
the Bill of Rights as his vehicle for doing so. It's not an
overstatement to say that in the past month Obama has tugged the First,
Second, Fourth, and Eighth amendments to the center. Not a day goes by,
it seems, without a constitutional wink to the right on guns (he thinks
there is an individual right to own one), the wall of separation between
church and state (he thinks it can be lowered), the Fourth Amendment
prohibition on warrantless wiretapping (he's changed his position on
FISA), and on the death penalty for noncapital child rape cases (he
thinks it's constitutional) as well as a possible shift this week on the
right to abortion (which could further limit the reach of Roe v. Wade).
Such accommodations are not all unexpected. Some of these positions
(like his stance on capital punishment) have long been a part of his
unorthodox constitutional thinking. Others (such as the hair-splitting
on guns) are politically expedient. Nor are such nuanced views
unwelcome. Obama is well aware that the ways in which liberals talk
about the Constitution are sometimes mired in 1960s mushiness and
feel-goodery that no longer resonates with the American public.
But Obama appears to be compromising on the wrong constitutional issues
while backing away from fights on the right ones. A liberal
re-examination of constitutional philosophy need not involve a
capitulation to conservative values. Obama can certainly move to the
right on gun-control policy or support a limited death penalty if
politics demand that he do so. But he should not, in so doing, shift to
the right on the Constitution itself.
Consider the fact that Obama spent the final days of the Supreme Court
term celebrating conservative constitutional outcomes rather than
calling out dubious conservative methodology. Who was better situated to
chide the court's conservatives for what sure seems to be an activist
ruling that saved Exxon $2 billion in damages stemming from the Valdez
oil spill? Just as Obama was reiterating his support for guns (certainly
a tenable liberal position these days), he was missing an opportunity to
turn the conversation to another 5-4 case decided that day—in which the
court struck down the so-called millionaire's amendment—an important
part of the McCain-Feingold campaign-finance law. That case was a
constitutional minefield for John McCain: His dream judges ruled an
important portion of his most significant legislative accomplishment
unconstitutional. But all we heard were crickets chirping in Chicago.
Obama also needed to do far more than he did to highlight McCain's
shocking assertion that the court's ruling in the Guantanamo detainees'
case was one of the "worst in the nation's history." As George Will
effectively chronicled, that was a patently ridiculous statement that
revealed a deep misunderstanding of both the law and the courts. Had
Obama directly addressed McCain and—by extension—McCain's model judges
on that issue, it would have gone a long way toward assuring Americans
that in his administration the Bill of Rights will not be a luxury
reserved only for the sunny days.
But perhaps the most important fight over the Constitution facing Obama
is not about the Constitution itself, but over the composition of the
Supreme Court. McCain has signaled that he plans to campaign hard on the
issue—taking numerous opportunities to excoriate "judicial activists"
and promise more jurists like Chief Justice John Roberts and Samuel
Alito. McCain pledges that he wants to appoint only judges who would
"strictly interpret the Constitution of the United States" (whatever
that means). And Obama should welcome this debate; it's one he should
win hands down, but he won't be able to capitalize on his strengths
unless he can change the way progressive candidates talk about judging
and the Supreme Court.
Obama's scattered statements so far on his philosophy for appointing
Supreme Court justices instantly reveal the problem. In response to one
of McCain's stemwinders on liberal activist judges, Obama started with
the boilerplate argument that he will nominate judges who are "competent
and capable" and who "interpret the law." So far, so good. He then
shifted to "those 5 percent of cases or 1 percent of cases where the law
isn't clear." In those cases, Obama asserted, judges must rely on "his
or her own perspectives, his ethics, his or her moral bearings," and
thus he wants judges who are "sympathetic enough to those who are on the
outside, those who are vulnerable, those who are powerless, those who
can't have access to political power, and, as a consequence, can't
protect themselves from being—from being dealt with sometimes unfairly,
that the courts become a refuge."
Remarks such as these make Obama sound like the careful law professor
he's been in the past, patiently explaining to his students why it is
inevitable in some cases that judges will rule based on their gut
leanings. But this is precisely the wrong way to talk to Americans about
judging, and it's guaranteed to turn Obama's advantage into a
disadvantage. Inevitable or not, Americans just don't like it when
judges rule based on their personal political preferences rather than
being guided by the Constitution and the law. A recent Rasmussen poll
tested, side-by-side, the McCain and Obama messages about the court. The
results: 69 percent of Americans agreed with McCain's message; only 41
percent agreed with Obama's. Obama will lose the war over the
Constitution if he keeps pushing, as he's done, for judges with
"empathy." Voters see that as code for "latte-sipping, out-of-touch,
Obama doesn't have to stumble here. Nor should he maintain the curious
silence that leaves his supporters wondering about his constitutional
values. A growing number of Americans believe the Roberts Court is too
conservative. Polls indicate that the public likes progressive judicial
results: The public responds favorably to questions asking whether
judges should strongly protect civil rights and civil liberties, rule
for the powerless over the powerful, and ensure broad access to justice.
Put simply, Americans want to live in Justice Stevens' America, not in
If McCain genuinely thinks it's smart politics to run against the Warren
Court in 2008, Obama simply needs to run against the Roberts Court. He
must promise to nominate Supreme Court justices who will protect civil
liberties, civil rights, and ensure equal access to courts and justice.
He needs to talk and talk about these issues not because these are
tender, liberal values he wants his judges to share, but because they
are values enshrined in the Constitution, values that have been corroded
and neglected in recent years.
When Obama talks about nominating justices who will protect the
powerless as much as the powerful, he shouldn't just cite pregnant
teenage mothers but instead quote the preamble, which lists establishing
justice as a pre-eminent goal of the Constitution, and the words "Equal
Justice for All" enshrined in marble over the Supreme Court's entrance.
When he talks about courts protecting civil rights, civil liberties, and
equal protection, he should explain that we fought a Civil War over
these principles and we amended the Constitution to enshrine them in our
founding document. In recent weeks, it's become easy to forget that
Obama is campaigning as a visionary. He needs to carry this over into
how he talks about the Constitution and the Supreme Court rather than
falling back into careful, hyper-technical law professor mode.
By rooting the results he seeks from the judiciary in the words of the
Constitution—by marrying method to results, rather than divorcing these
concepts—Obama can mobilize progressives and also reach beyond his base
in speaking about what's at stake at the Supreme Court. By meandering to
the right on some of the most important provisions in the Bill of Rights
while mumbling about appointing judges who rule based on their "own
perspectives," he risks alienating both groups and weakening the
Constitution right along with his political prospects.
Doug Kendall is founder and executive director of Community Rights
Counsel, a public interest law firm that promotes constitutional principles.
Dahlia Lithwick is a Slate senior editor.
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