Is Obama’s Constitution Strong Enough?

The morning after the historical surprise in Iowa, people from all kinds of backgrounds were feeling good about themselves, welcoming the real possibility—whether or not they intend to vote for him—of a black American President. I felt that way, too.

Even at the Daily News, not known as a liberal bastion, the lead editorial was headlined “Obama’s Shining Moment,” and the hosanna ended: “We are witnessing the first serious black candidate for the U.S. presidency.”

After the primary results in New Hampshire, however, the need for new history textbooks is no longer certain. But Obama, with customary vigor, is continuing what is essentially his “change will bring us together” campaign. The day after his “shining moment” dimmed, he was stirring a large crowd in Jersey City with his standard stump speech: education, global warming, variations on The Audacity of Hope.

In that book, subtitled “Thoughts on Reclaiming the American Dream,” there is a chapter I was glad to see, “The Constitution,” in which he rails against the Bush White House for opposing “any suggestion that it was answerable to Congress or the courts.”

Obama did make one colossal mistake in that chapter, though, writing of the 1787 Constitutional Convention that “the outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them.”

Ask the first 100,000 schoolchildren you meet who James Madison even was—or whether they know that the Founders were so fearful of a king-like president that they locked in (or so they thought) a separation of powers among three branches of government—and you will be disappointed by their answers.

With his contagious spirit, Obama could be a powerful educator not only of American schoolchildren, but also much of the rest of the citizenry, about why this is the oldest constitutional democracy in the world—and what it will take to keep it. And he could show, forcefully, that the Bush-Cheney administration is dangerous proof that the Constitution is not self-enforcing.

Once in a while, Obama makes a passing reference to our diminishing individual liberties, but hardly ever in his stump speeches. At an early-morning rally the day of the New Hampshire vote, he told some 300 students at the Dartmouth College gym: “My job this morning is to be so persuasive . . . that a light will shine through that window, a beam of light will come down upon you, you will experience an epiphany, and you will suddenly realize that you must go to the polls and vote for Barack.” One of the reasons to vote for him, he continued, was his pledge to end the Bush-Cheney era of “wiretaps without warrants.”

He didn’t add that Bush wants to make this spying on us permanent. And when he’s not in front of a roomful of students with the television cameras on him, Obama hardly ever shows the urgent passion for restoring the Constitution that he exhibits on other issues. Hillary Clinton also invokes “change” as if it’s a medicine to cure all ills, but she too largely ignores the incremental disappearance of the Bill of Rights—including the last rites for our guarantees of personal privacy.

The intersecting precedents this administration has created for what Commander in Chief Bush calls “the unitary executive” will not vanish after he does. This overturning of the very structure of the Constitution can continue for many years to come, under Republicans or Democrats.

So what are Obama’s plans to restore the Constitution—especially regarding the activities of our domestic and international intelligence agencies? And in view of Bush’s legacy with the Roberts-Alito Supreme Court, what would President Obama’s criteria be for filling any vacancies during his time in office? It would help if he would tell us now which Supreme Court justices, past and present, he most respects, and why.

It would also be useful if somebody on Obama’s campaign would give him the Freedom Pledge that Bruce Fein, chairman of the Washington-based American Freedom Agenda, has asked all of the presidential candidates to sign.

Fein, a conservative and a constitutional scholar, was in Ronald Reagan’s Justice Department, and he is a searing critic of this administration’s subversion of what it calls “American values.”

In my conversations with him, and in an October 28 letter in The New York Times, Fein has listed the powers that a presidential candidate should absolutely renounce if he or she intends to root out the noxious, lawless changes that Bush, Cheney, and their accomplices have imposed on our nation, and on what we represent to the world:

“Torture, presidential signing statements [which give the president power to ignore the bills he signs]; indefinite detentions of American citizens as enemy combatants; military commissions that combine judge, jury and prosecutor; spying on American citizens in contravention of federal statutes on the president’s say-so alone . . . kidnapping; imprisoning and torturing suspected terrorists abroad; executive privilege to shield the executive branch from Congress; prosecuting journalists under the Espionage Act for exposing national security abuses [The Washington Post‘s Dana Priest had been threatened with such prosecution]; listing organizations as terrorist groups based on secret evidence; suspending the writ of habeas corpus during the conflict with international terrorism; and invoking the state- secrets privilege to deny victims of constitutional wrongdoing any judicial remedy.”

Senator Clinton, says Fein, has refused to sign this pledge. In fact, the only candidate to do so thus far has been Representative Ron Paul, the insistently singular Texas libertarian.

Barack Obama used to teach constitutional law at the University of Chicago, and in his chapter on the Constitution in The Audacity of Hope, he emphasizes that “if there was one impulse shared by all the Founders, it was a rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority. . . . George Washington declined the crown because of this impulse. . . . ”

Is Obama ready to commit himself to bringing that “impulse” back to our government? Although he insists that his candidacy will be an engine of change, to paraphrase Duke Ellington, it won’t mean a thing if ain’t got that constitutional swing. He quotes Martin Luther King on “the fierce urgency of now”: Show that where it most counts, Barack.

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