Constitutional Culture

As Americans prepare to go to the polls, the nation is teetering on the edge of an economic meltdown. If we are to avoid electing someone who will make things even worse—never mind beginning to turn things around—it behooves us to consider how and why we are in this mess.

Permit me to suggest that our current problems—including our economic problems—are rooted in the fact that for the past eight years, we have been governed by an administration that has operated far outside of what I call America’s constitutional culture. As we prepare to say “adios” to the Bush calamity and to choose a new President, we would be well advised to look closely at each candidates’ approach to the constitution, because a willingness to operate within its constraints will tell us much more than the issue papers and campaign promises that are the staples of electoral strategies.

A constitution does many things: in its more pedestrian provisions, it lays down the mechanics of governing—how old must a person be to run for President? How shall the legislature be selected? Those sorts of things. More fundamentally, however, constitutions provide a statement of national values—a moral code governing our necessary civic infrastructure. America’s constitution places a high premium on protecting individual rights by limiting the scope of government power, by the separation of powers, and an insistence on checks and balances and the rule of law. 

For the past eight years, the Bush-Cheney Administration has shown nothing but contempt for those constitutional constraints, and the policies it has favored have been consistent with that contempt.

It’s not just the Patriot Act, NSA spying, or the establishment of the prison at Guantanamo, alarming as those and similar measures have been. It’s not just the careful selection of judges who can be expected to favor the prerogatives of government over the rights of citizens. It’s not just the use of signing statements to circumvent constitutionally prescribed policymaking processes. It can also be seen in the proliferation of no-bid contracts, privatization, cronyism, and lack of regulatory oversight that has precipitated our current financial crisis.  (Make no mistake—the administration’s anti-regulatory fervor is part and parcel of its general disdain for the rule of law, and has been a major contributor to our current economic crisis. Notwithstanding the florid rhetoric from self-proclaimed advocates of the free market, markets cannot function without clear ground rules and impartial umpires willing to enforce those rules.)

Fine, you may say. I agree the people we elect ought to be bound by the rule of law. But what does the constitutional commitment and knowledge of a Presidential candidate  tell me about his or her policies most likely to affect me?


Consider the following:

·        A President who understands the First Amendment’s religion clauses will not try to change the laws to incorporate particularistic religious beliefs about abortion, homosexuality or science. That means supporting stem-cell research. It means no Terry Schaivo dramas, no “Defense of Marriage” acts, no creationism in the classroom.

·        An administration respectful of the Fourth Amendment will not  read your email or eavesdrop on your telephone conversations.

·        A President who respects the rule of law, who enforces laws and regulations impartially (and thus prevents the wholesale looting of the treasury by the well-connected) is far less likely to preside over an economy where jobs are lost, homes foreclosed and retirement accounts devalued.

·        A President who understands the philosophy and intent of the Equal Protection Clause of the Fourteenth Amendment will respect diversity and insist upon equal rights for all Americans.

Barack Obama taught constitutional law. He and Joe Biden have given ample evidence that they understand, and are committed to, constitutional principles. John McCain’s embrace of constitutional limits has been spotty, at best; Sarah Palin has given no evidence of ever having read the constitution (or much else).

I am as aware as anyone that this country has often failed to live up to its highest aspirations and constitutional institutions. But the damage done by the Bush Administration has been both systemic and insidious, because it has called those very aspirations into question. It will not be easily repaired.

Political partisans always insist that “this election is the most important ever.” It’s easy to dismiss overheated pronouncements (like my own!) as predictable election-year rhetoric. But as the old sayings go, even paranoids have enemies and even stopped clocks are right twice a day. When Americans go to the polls November 4th, we will be voting for far more than a President. We will be voting to reclaim—or to jettison what is left of–America’s constitutional culture.