News & Politics

Consider the Constitutions of Obama and McCain as You Choose Sides


On the blessed day when George W. Bush leaves office, he will have left behind a largely hidden parallel government within this nation, a rogue apparatus that allows a President to be the law, with a holy patriotic mission to ignore the Congress and the courts when decisive action is needed.

And if the other branches of the visible government act up—brandishing the separation of powers inscribed in the Constitution—this president-czar works, mostly in secret, to maintain his authority.

The next president, to restore the Constitution and shred the Bush legacy of shadow law—and, in the process, repair our deeply scarred reputation in the world—must begin to root out the inner machinery of Bush’s parallel government.

But once he’s elected, who is more likely—McCain or Obama—to avoid being seduced by the intoxicating powers of the Oval Office? As you leap to an answer, keep in mind the cautionary historical warning by Oberlin College professor David Orr in “Refitting the Presidency to the Constitution” (, May 18): “Unless explicitly repudiated by the next president and prohibited by law, the precedents of the Bush presidency will stand. The expanded powers of one president typically are carefully guarded by their successors . . . Republican or Democrat.”

Let us suppose that Barack Obama is the next president and is impelled to extirpate the seeds of tyranny that Bush, Cheney, et al. have planted.

The odds are strong that the Democrats will then have larger majorities in both branches of Congress. But the odds are also strong that the current Democratic leadership—Harry Reid and Nancy Pelosi—will remain in place. Neither has shown sufficient interest, let alone the passion, to resuscitate the Constitution.

Would Obama, after only a short time in the Senate, have the sustained determination, leverage, and organizing ability necessary to bypass Reid and Pelosi and create a new majority for the Constitution in both houses?

Let us further suppose that Obama has the grit to accomplish that, energizing even Democrats without safe seats so that they will spend less of their time raising money for their next campaign. Obama’s resurrection of our individual liberties, however, can still be overruled by a Supreme Court dominated by Chief Justice John Roberts and his conservative allies on the bench—Samuel Alito, Clarence Thomas, and Antonin Scalia—with the uncertain swing vote of Anthony Kennedy.

And here is a crucial difference when considering the two candidates: The new president may well have several vacancies on the High Court to fill during his term, particularly if re-elected. Bill of Rights protector John Paul Stevens is 88, still plays tennis, and long may he do so. Another part of the so-called “liberal” bloc, Ruth Bader Ginsberg, is 75. Stephen Breyer is 69.

David Souter, 68, though expected to join the court’s right wing when George H.W. Bush nominated him, has proved an infuriating disappointment to conservatives. Souter replaced Justice William Brennan, an inspiring believer in the Constitution as a living, evolving guarantor of personal liberties. After retirement, Brennan befriended and influenced his successor. But the ungregarious Souter doesn’t enjoy Washington and its social life: Unlike the other justices, he doesn’t spend his summers teaching in foreign climes, preferring instead his rural New Hampshire home. Brennan enjoyed being the chief dissenter on the Rehnquist court, but if the Roberts court turns even more conservative, Souter might not stay.

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