Legal Commentary

Obama's Constitutional Shift: 1st, 2nd, 4th and 8th Amendments

By Jeralyn

Dahlia Lithwick and Doug Kendall at Slate ask a good question:

Obama veers to the right, but did he have to take the Constitution with him?

They note:

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).

The point: [More...]

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.

They move on to Obama's views of Supreme Court justices and have some good advice for him.

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.

They conclude with:

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.

Full post as published by TalkLeft on July 10, 2008 (boomark / email).