Obama veers to the right, but does he need to take the Constitution with him?
jurisprudence: The law, lawyers, and the court.Constitutional Drift
By Doug Kendall and Dahlia Lithwick
Posted Wednesday, July 9, 2008, at 6:05 PM ET
Barack Obama
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.
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