[Marxism] Obama and the Constitution

Louis Proyect lnp3 at panix.com
Thu Jul 10 07:30:17 MDT 2008


http://www.slate.com/id/2195008/jurisprudence

Constitutional Drift
Obama veers to the right, but does he need to take the Constitution with 
him?
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, 
smarty-pants elitism."

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 
Clarence Thomas'.

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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