Feb 12, 2013

Posted in Popular Constitutionalism

Obama’s Constitutionalism

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I have previously commented on President Obama’s willingness to cite the Constitution, and the Declaration of Independence–particularly in his inaugural address. This is a theme I build on at some length in my book, where I document how the President repeatedly asserted popular constitutionalist ideals in his defense of his Affordable Care Act.

Simon Lazarus writes in The New Republic that in his second term, President Obama is finally wrapping himself in the Constitution.

Since his re-election, the president has not only pushed an unabashedly progressive policy agenda. Less noted, but more novel, he has grounded his political case for that aggressive agenda in the “enduring strength of the Constitution” and the ideals of its framers. Largely ignored on the left, Obama’s out-of-the-box tack has provoked ire on the right. Last week, the Republicans’ top Senate Judiciary Committee member, Senator Charles Grassley of Iowa, delivered a lengthy riposte to the constitutional brief Obama included in his January 16 opening pitch for strengthened gun regulation. “The president’s remarks,” Grassley complained, “turned the Constitution on its head.” Similarly miffed, Paul Ryan scolded Obama for “invoking the Constitution and Declaration” in his inaugural address, “sort of as a means to legitimize his very partisan, very ideological agenda.”

In his inaugural, Obama’s evident first goal was to knock down the claim endlessly reiterated by Ryan and his allies, that the 1789 Constitution mandated “small government,” incompatible with twentieth and twenty-first century progressive reforms. “The patriots of 1776,” he gibed, “did not fight to replace the tyranny of a king with the privileges of a few.” Hence, their vision, and the words they drafted to enact it, are hospitable to laws passed by subsequent generations, as they have “discovered that a free market only thrives when there are rules to ensure competition and fair play.” In addition to this populist thrust, the president offered a second originalist rationale for activist government. Government power, he argued, is often necessary to give real-life meaning to the individual rights prescribed by the Declaration and the Constitution: “While these truths may be self-evident, they’ve never been self-executing . . . . [P]reserving our individual freedoms ultimately requires collective action.”

During his first term, the Tea Party owned the constitutional narrative. Let’s see if Obama can reclaim it during the second term.

Thus, in addition to yoking contemporary progressive goals to the vision of the Revolutionary War generation, Obama’s emergent constitutional canon appears bent on revitalizing a cornerstone of the Civil War era’s—more unequivocally progressive—vision. Indeed, he seems already to have sparked an incipient dialogue around that prospect.

By engaging the right on the meaning of the Constitution, Obama has broken new ground. For progressives, he has sketched a fresh template for countering their adversaries’ long-unanswered constitutional narrative.

Update: At the Text & History Blog, Si Lazarus graciously responds to my post.

Josh Blackman astutely observes, in this post and an earlier one, that President Obama’s rights-based defense of affirmative government connects to a long-running dialogue among philosophers, academics, and contemporary pundits and advocates on the Right (see Yuval Levin) and Left (see Garrett Epps) concerning “positive” and “negative” conceptions of liberty.

Especially interesting, Josh spotted this high-level dialectic behind the closing arguments in last year’s Affordable Care Act case by Solicitor General Donald Verrilli and opposing counsel Paul Clement—an important point that other observers, including me, completelyoverlooked.

Josh also nails the bottom-line regarding President Obama’s exposition of a progressive constitutional narrative: “During his first term, the Tea Party owned the constitutional narrative. Let’s see if Obama can reclaim it during the second term.”

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