Consider the Constitutions of Obama and McCain as You Choose Sides


On the blessed day when George W. Bush leaves office, he will have left behind a largely hidden parallel government within this nation, a rogue apparatus that allows a President to be the law, with a holy patriotic mission to ignore the Congress and the courts when decisive action is needed.

And if the other branches of the visible government act up—brandishing the separation of powers inscribed in the Constitution—this president-czar works, mostly in secret, to maintain his authority.

The next president, to restore the Constitution and shred the Bush legacy of shadow law—and, in the process, repair our deeply scarred reputation in the world—must begin to root out the inner machinery of Bush’s parallel government.

But once he’s elected, who is more likely—McCain or Obama—to avoid being seduced by the intoxicating powers of the Oval Office? As you leap to an answer, keep in mind the cautionary historical warning by Oberlin College professor David Orr in “Refitting the Presidency to the Constitution” (, May 18): “Unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand. The expanded powers of one president typically are carefully guarded by their successors . . . Republican or Democrat.”

Let us suppose that Barack Obama is the next president and is impelled to extirpate the seeds of tyranny that Bush, Cheney, et al. have planted.

The odds are strong that the Democrats will then have larger majorities in both branches of Congress. But the odds are also strong that the current Democratic leadership—Harry Reid and Nancy Pelosi—will remain in place. Neither has shown sufficient interest, let alone the passion, to resuscitate the Constitution.

Would Obama, after only a short time in the Senate, have the sustained determination, leverage, and organizing ability necessary to bypass Reid and Pelosi and create a new majority for the Constitution in both houses?

Let us further suppose that Obama has the grit to accomplish that, energizing even Democrats without safe seats so that they will spend less of their time raising money for their next campaign. Obama’s resurrection of our individual liberties, however, can still be overruled by a Supreme Court dominated by Chief Justice John Roberts and his conservative allies on the bench—Samuel Alito, Clarence Thomas, and Antonin Scalia—with the uncertain swing vote of Anthony Kennedy.

And here is a crucial difference when considering the two candidates: The new president may well have several vacancies on the High Court to fill during his term, particularly if re-elected. Bill of Rights protector John Paul Stevens is 88, still plays tennis, and long may he do so. Another part of the so-called “liberal” bloc, Ruth Bader Ginsberg, is 75. Stephen Breyer is 69.

David Souter, 68, though expected to join the court’s right wing when George H.W. Bush nominated him, has proved an infuriating disappointment to conservatives. Souter replaced Justice William Brennan, an inspiring believer in the Constitution as a living, evolving guarantor of personal liberties. After retirement, Brennan befriended and influenced his successor. But the ungregarious Souter doesn’t enjoy Washington and its social life: Unlike the other justices, he doesn’t spend his summers teaching in foreign climes, preferring instead his rural New Hampshire home. Brennan enjoyed being the chief dissenter on the Rehnquist court, but if the Roberts court turns even more conservative, Souter might not stay.

John McCain has already given us his models for filling vacancies on the Supreme Court: Roberts, Alito, and the late William Rehnquist.

None of these men displayed much alarm over the Bush-style authoritarianism that has led to the establishment of CIA secret prisons and other “special powers”; the ever-expanding surveillance of Americans at home, including warrantless eavesdropping on our e-mails and phones; and the summary closing of our courts any time the administration invokes the “state secrets” privilege that prevents terrorism suspects from even mounting a defense.

In this month’s National Review Online, Douglas Holtz-Eakin, a primary adviser to John McCain, makes it entirely clear that, as president, McCain would shape the Supreme Court with appointments intended to uphold the vast reach of Bush’s so-called unitary executive.

Appropriately, that letter to the National Review expounding McCain’s views— one that the senator himself has not disavowed—was spread around the world on the front page of the June 6 New York Times by Charlie Savage, who won a Pulitzer Prize for his work in The Boston Globe exposing Bush’s abundant use of “signing statements” to exempt his administration from the laws he’d just signed. To quote Savage’s piece, McCain believes “that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international calls and e-mails without warrants, despite a 1978 federal statute that require court oversight of surveillance.” (Emphasis added.)

Barack Obama voted, as a U.S. senator, against the confirmation of Roberts and Alito, saying of the latter that his record revealed “extraordinarily consistent support for the powerful against the powerless” and “for an overreaching federal government against individual rights and liberties.”

Obama, moreover, has been mocked by such conservative columnists as Linda Chavez for having said—in the spirit of Justices Brennan and William O. Douglas—that he would be guided in his judicial nominations by his conviction that “[w]e need somebody who’s got the heart . . . the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

In all of the polling of the American electorate and its anxieties and hopes in the coming election, concerns about the Supreme Court and the filling of future vacancies do not rank very high.

But the identities of those nine deciders should be kept very much in mind when you vote. Because on any number of issues—whether you’re worried about winding up in some government database as a “person of interest,” or simply concerned about the future of health care—you won’t escape the power that the Supreme Court has in our lives.

On June 12, the Supreme Court did, however, rebuke both Bush and McCain by declaring the military commissions at Guantánamo unconstitutional!