How Obama Should 'Preserve, Protect, and Defend the Constitution' in His Second Term

Our founding document needs fresh understanding. Who better to provide it than a former constitutional law professor now reelected president?

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Obama welcomes a newly confirmed Elena Kagan to the White House on August 6, 2010. (Jim Young/Reuters)

Consider this fact: In the history of the United States, two and only two Democrats have twice won a majority of the popular vote: Franklin D. Roosevelt and Barack H. Obama.* Obama is not FDR; but he is potentially a historic figure. Roosevelt used the presidency to change permanently the way Americans think of the Constitution. It's telling that, in the wake of the Republican defeat Tuesday, even National Review Online was lamenting the failure of the GOP to cast its message in terms of Roosevelt's Four Freedoms.

It's a popular delusion to think that the Constitution is, in James Russell Lowell's phrase, "a machine that would go of itself." It needs tending, and discussion, and understanding -- without it, the machine slows and eventually breaks down. Who better to lead that discussion for our time than a former constitutional law professor now re-elected president? It would be tragic for the second Obama administration to bull forward without a constitutional agenda to match its policy and legislative ones. Here are my suggestions:

  • Fill judicial vacancies with strong nominees -- and fight for them. In its first term, the Obama administration left 47 judicial vacancies on the table this year. Of the nominees it has made, too few of them were of the age, background, and caliber to constitute a Supreme Court bench for the second term, or for a future Democratic president. Obama and his team were strangely reluctant to propose names that would stir Republican opposition. That reluctance allowed Republicans to concentrate their fire on a few stellar nominees.

    Busy as this administration may be, it should roll out new nominees as soon as possible -- not one star, or two, but dozens -- and send word to the Hill that coded racial or sexual attacks on them will be met with counter-force. One hopes that Obama has learned from the Affordable Care Act case that having a smart, progressive judge on the bench at the right moment can make a huge difference.
  • Address the seemingly slapdash approach to constitutional issues within the Administration. The Justice Department's Office of Legal Counsel (OLC) is the conscience of the executive branch in assessing whether proposed laws and presidential actions are constitutional. But the Obama Administration at key moments has made end-runs around the OLC. Before the Libya intervention, for example, the acting head of OLC advised the president that his plan would trigger the War Powers Act. Obama turned, Dick Cheney style, to a more pleasing memo prepared by State Department legal adviser Harold Hongjuh Koh. It is unnerving that the White House will troll for legal advice until it hears what it wants. OLC's central place in the rule of law needs to be reaffirmed.

  • Discuss and reform the expansion of executive power since the Bush years. Since Washington's first term, the power of the president has moved up in a kind of one-way ratchet. A new crisis triggers a claim of authority; if the claim is successful, future presidents refuse to yield it back. The office Obama took was grossly swollen by the arrogation of George W. Bush. The sitting president has not been willing to discuss executive power reform, and in the maintenance of a "kill list" of assassination-by-drone targets he has further aggrandized the executive branch. The administration should have a realistic discussion with Congress about ways to cabin this unfettered discretion.

  • Confront Citizens United by pushing for disclosure requirements. From time to time, Obama likes to talk about the Citizens United decision and the toxic turn the Supreme Court has taken on campaign finance. But he has made no consistent critique of the decision or of the flood of money into politics that followed it. In part, of course, to do so would be hypocritical: The Democrats used the existing campaign-finance laws more effectively than did the Republicans in 2012.

    But Obama will never run for election again. He can begin educating the public about the corrosive effects of constant fundraising on politics and policy. If his administration does not make a strong push for mandatory disclosure of contributions to "independent" groups, it will never happen. And that push should be part of a larger discussion about what's really wrong with Citizens United -- not that it depends on the idea that "corporations are people" (it doesn't), but that its reasoning shows contempt for the very ideas of equality and self-government. Involvement by Obama could bring discipline and sanity to the drive to save campaign-finance regulation.
  • Get Congress involved in protecting the right to vote. Next year may be the most crucial year for voting rights since 1965. Partisan and racially focused redistricting, racial vote-dilution, and voter ID laws are under review right now in the lower courts. The Supreme Court may soon grant certiorari (that is, review) in two cases that may invalidate § 5 of the Voting Rights Act -- which requires jurisdictions with a history of discrimination to get advance clearance for voting changes -- altogether.

    The courts seem to consider these issues in a strange other world, where long voting lines and vote suppression schemes are undreamed of, and non-existent voter impersonation fraud is an ever-present danger. It's time for federal protection of the right to register, to vote, and to have a vote that is counted. Under Article I, § 4, cl. 1 of the Constitution, states may set voting and election rules, but "Congress may at any time make or alter such regulations."

    Now's the time to do that. If our democracy is to survive, we need to move toward the system other nations take for granted -- a central, professional electoral institute, protected from political influence, with both the power and the responsibility to govern a sane election system. Of course the Republicans will oppose this system; let them. The right to vote is a winning issue, especially in the new America revealed by the analysis of election results. Now is the time to start that discussion, before the memories of seven-hour waits at the polls have faded.
  • Reclaim the Constitution. For at least the past four years, the word "Constitution," in political-speak, has meant not the document first adopted in 1789 and then amended 27 times over the years, but an imaginary charter cribbed from Atlas Shrugged, the Book of Leviticus, and Herbert Spencer's Social Statics. The far right is conducting against the Constitution the same kind of assault they have mounted on climate change and Darwinian evolution (and, for a few weeks last month, on Nate Silver).

    The right's invented libertarian "Constitution" has gained public acceptance because the progressive side of the dialogue has shied away from constitutional language. Obama himself rarely speaks in constitutional terms. But that's a mistake. Properly read, the Constitution is a charter of progressive self-government. Arguments that federal health-care, environmental regulations, pension legislation, and labor laws are unconstitutional are ludicrous -- but they are gaining credence because no one has refuted them.

Early next year, Barack Obama will take again the oath to "preserve, protect and defend the Constitution of the United States."

Do it, Mr. President. There will be no better time.

* Jefferson, Madison, Monroe, and Jackson all won election twice at a time when legislatures in many states picked the electors.

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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