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October 30, 2008
"Negative Attack: More Constitutional Stupidity from McCain / Palin
George Will recently penned an op-ed lamenting the various ways McCain/Palin have evinced either ignorance or indifference to the constitution (especially as Will prefers to see that document interpreted). Appropriately titled “Careless with the Constitution,” he argues that “carelessness has characterized recent episodes of faux conservatism,” citing all sorts of evidence from Palin’s apparent ignorance about the Vice President’s constitutional duties to McCain’s sponsorship of campaign finance reform (a favorite bug-a-boo for Will).
But Will also goes after other conservatives as well (“faux conservatism”), singling out, for example, Dick Cheney’s attempt to write in a fourth branch of government all for himself. Will is surely on to something here.
A particularly irritating example of constitutional stupidity came last week when an NPR interview of Obama dating back to 2001 surfaced in which he laments the way Civil Rights movement over emphasized the capacity of the judiciary to bring about social (i.e., economic) justice.
As Jake Tapper reports the interview:
Obama in that interview said, "If you look at the victories and failures of the civil rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote, I would now be able to sit at a lunch counter and order, and as long as I could pay for it, I’d be OK.""But," Obama said, "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn’t shifted."
Obama added, "one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways, we still stuffer from that."
Once the conservative echo chamber got a hold of the interview, Obama’s words were promptly taken out of context, distorted, and out right misread to mean things that were the very opposite of what he actually said. (So much for “original intent” and textualism.). McCain, Palin, and an army of official and unofficial surrogates claimed that Obama had wished that the courts had been more willing to bend the constitution to achieve some sort of redistribution of wealth—when, in fact, he argued that the movement should have been more focused on the possibilities for social change offered by community and legislative action.
But no matter. Such distortions may demonstrate illiteracy or dishonesty—but not necessarily a fundamental ignorance of basic principles of American constitutionalism.
What really shocked me, however, was another line of attack. When disgraced former majority leader Tom Delay appeared on Hardball a few days ago to rant about Obama’s comments, he made a point of emphasizing, in sneering tones accusatory tones, Obama’s description of the Bill of Rights as “negative.” In Delay’s rendition, just describing the contents of that document as negative was apparently evidence of Obama’s disrespect for our fundamental liberties. In the day or so leading up to Delay’s appearance I had heard something of the same out of both McCain and Palin, though it seemed that they had been a little less obvious or forceful.
Well, here’s the deal: As any constitutional law student will tell you—indeed, as most Poly Sci undergrads will tell you—referring to basic constitutionally protected liberties such as freedom of press, speech, religion, and all the others as “negative” is nothing controversial. The usage simply draws attention to the fact that our rights are expressed in terms of things the government may not do to us. Alternatively, positive liberties are understood as things the government must provide us—or, as we typically call them, “entitlements.”
Now, being the kind, forgiving sort of person I am, I’m happy to give them the benefit of the doubt. But the truth is, I have no idea whether McCain, Palin, or Delay understand the distinction. So I really don’t know what giving them the benefit of the doubt means. What’s worse? Assuming that they know more than they pretend and, in fact, are only trying to demagogue an issue of constitutional principle—or that they are fundamentally ignorant about the constitution of the nation they hope to lead?
Posted by stevemack at October 30, 2008 10:04 AM
