Primary Concerns

"For ten years before coming to Washington, I taught constitutional law at the University of Chicago. I loved the law school classroom: the stripped-down nature of it, the high-wire act of standing in front of a room at the beginning of each class with just blackboard and chalk, the students taking measure of me, some intent or apprehensive, others demonstrating their boredom, the tension of my first question – ‘What’s this case about?’ – and the hands tentatively rising, the initial responses and me pushing back against whatever arguments surfaced, until slowly the bare words were peeled back and what had appeared dry and lifeless just a few minutes before suddenly came alive, and my students’ eyes stirred, the text becoming for them a part not just of the past but of their present and their future.

"Sometimes I imagined my work not to be so different from the work of the theology professors who taught across the campus – for, as I suspect was true for those teaching Scripture, I found that my students often felt they knew the Constitution without having really read it. They were accustomed to plucking out phrases that they’d heard and using them to bolster their immediate arguments, or ignoring passages that seemed to contradict their views. …..

"So if we all believe in individual liberty and we all believe in these rules of democracy, what is the modern argument between conservatives and liberals really about? If we’re honest with ourselves, we’ll admit that much of the time we are arguing about results – the actual decisions that the courts and the legislature make about the profound and difficult issues that help shape our lives. … More often than not, if a particular procedural rule – the right to filibuster, say, or the Supreme Court’s approach to constitutional interpretation – helps us win the argument and yields the outcome we want, then for that moment at least we think it’s a pretty good rule. If it doesn’t win, then we tend not to like it so much." -- Barack Obama; The Audacity of Hope; pages 86-88.

Last week, after Senator Obama appeared on CNN’s Larry King Live, a few participants on the Democratic Underground expressed the opinion that his performance would damage his candidacy. One discussion thread went so far as to say the show had eliminated him from serious consideration in the democratic primaries. I found that curious – perhaps these were the thoughts of those political students that Obama had noted were "demonstrating their boredom" – although I would wager that these were not the heart-felt opinions of individuals who were giving Obama serious consideration before the Larry King interview.

I thought it would be interesting to spend a few minutes looking at two issues that seem related to the debates regarding how well or how poorly Barack Obama may have done on the show in question. The first has to do with the significance the public places upon how polished any one candidate appears. It has to do with the marketing of a candidate: do we eliminate a candidate from serious consideration if they have an off night, where they seem to struggle to answer questions?

One of my favorite politicians was Senator Robert Kennedy. I have a "Kennedy ‘64" tie clip, shaped like New York State, that he handed out on the Chenango County Courthouse in Norwich, when he was running for the senate. Robert did not enjoy his brother John’s communication skills. Where JFK seemed always at ease, RFK often appeared slightly nervous. John’s appearance gave him an advantage in debates, as Richard Nixon found out. Robert was a powerful presidential candidate in 1968, although he lacked Eugene McCarthy’s debating skills.

There are advantages to being a gifted communicator. I think that all of the democrats who are in the presidential race are talented at communicating their ideas to the public. There may be times when each has the experience of being tired, possibly being hoarse, and of having an interview or speech that exposes them as being a human, rather than a plastic product such as Mitt Romney.

The more important issue has to do with each candidate’s understanding of the US Constitution. It’s too easy to say that all of the candidates in the presidential race, republicans as well as democrats, believe "in individual liberty and … these rules of democracy." In fact, as the Scooter Libby trial demonstrated, there is a group of Americans who believe that constitutional rights should apply to their exclusive group, but not to the larger population.

The Libby Defense Trust was composed of individuals who were very vocal about Scooter’s right to a fair trial. Yet these are the same people who self-righteously believe it is their right to deny constitutional protections to other people. And they become enraged when Libby was held responsible for some of the crimes he committed.

This view of exclusive ownership of constitutional rights came to a head in the 2000 presidential election. Not only did republicans coordinate the disenfranchisement of black voters in Florida, but the US Supreme Court endorsed their actions. In their selection of George W. Bush as president, the five "justices" decided that "the individual citizen has no federal constitutional right to vote for electors for President of the United States…" Harvard’s Alexander Keyssar (who wrote "The Right to Vote: The Constitutional History of Democracy in the United States") noted that this decision was "one of the stranger developments of the post-election conflict: the blunt expression of a legal argument denying that Americans actually possess a right to vote in presidential elections."

Kevin Phillips discussed this topic in "American Dynasty," a book that discussed the threat to democracy posed by "aristocracy, fortune, and the politics of deceit." At the end of chapter 3, he tells of how Antonin Scalia amplified his objection to democracy a year after selecting Bush for president. At a January 2002 Pew Forum on Religion and Public Life, Justice Scalia expressed his opinion that the Constitution as written in 1787 reflected divinely inspired law, and that the state was an instrument of God. "That consensus has been upset by the emergence of democracy. … the reactions of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it but resolution to combat it as effectively as possible," he said.

The republican tendency to exclude people from voting for president was not limited to the 2000 election. There were coordinated attempts to keep segments of the people of Ohio from voting in 2004. And while it no doubt pleases Justice Scalia that those who were disenfranchised in Florida in 2000 and in Ohio in 2004 were, by and large, the same groups denied protections by that 1787 version of the Constitution, it is vital to our democracy that we pressure the Congress to make sure that all Americans enjoy the right to vote for president in 2008.

True democracy is inclusive – not exclusive. We should be looking closely at the field of democratic candidates to see which ones are looking to protect citizens’ constitutional rights, rather than focusing on the packaging of the candidate. In each and every issue that is important in our culture today – no matter if we call these political or social issues – we do well to use the US Constitution as a guideline for framing the debate. This includes the war in Iraq; the "Patriot Act"; immigration; marriage; the attempts to put "bible studies" in public schools; the environment; and more.

Which candidates are advocating for the protection and indeed expansion of constitutional democracy? And which, if any, candidates are staking out positions that seem closer to the exclusive republican aristocracy that Scalia supports? These are among the most important issues we should consider in the primaries.