In Defense of Obama
Monday July 14, 2008
Doug Kendall and Dahlia Lithwick of Slate are taking Obama to task for what they describe as, well, politically expedient Constitution-burning:
One such issue is same-sex marriage. While Obama still technically opposes marriage equality, a position that he has held since the beginning of his campaign, he has also stated firm opposition to the proposed California referendum banning same-sex marriage. When John Kerry confronted a similar situation with a proposed Massachusetts ban on same-sex marriage, he supported the ban. And when Bill Clinton was confronted with the remote possibility of same-sex marriage in Hawaii, he actually signed the Defense of Marriage Act, a ban on federal recognition of same-sex marriage that is still in effect to this day.
Obama is clearly making an effort to reach out to centrist voters, as he did when he ran for the U.S. Senate in Illinois (a state that went Republican in every presidential election from 1968 to 1988)--but by the standards of the Democratic Party, his record on civil liberties remains impressive.
Related: Barack Obama on Civil Liberties Issues
But Obama appears to be compromising on the wrong constitutional issues while backing away from fights on the right ones. A liberal re-examination of constitutional philosophy need not involve a capitulation to conservative values. Obama can certainly move to the right on gun-control policy or support a limited death penalty if politics demand that he do so. But he should not, in so doing, shift to the right on the Constitution itself.I'm not thrilled with some of what Obama has said recently, but on the six issues that the article cites he is taking fairly mainstream Democratic positions--hardly positions that involve a "shift to the right on the Constitution itself." Point by point:
- The Second Amendment: Simply ignoring the Bill of Rights' gun rights provision, or "reinterpreting" it so that it transforms into something it obviously isn't, may or may not be the right thing to do--but one thing it is not is libertarian. And besides, no Democratic presidential nominee has ever campaigned on the position that the Second Amendment does not protect an individual right to bear arms. Even John Kerry, the Senate's left-wing hawk on gun control issues, had himself photographed in 2004 carrying a rifle and wearing hunting gear.
- Faith-based initiatives: Funding religious charities with federal money was a popular idea among Democrats when Bill Clinton first signed a bill permitting it in 1996, and it remains a popular idea among Democrats today. I believe Obama is wrong on this issue, but he can't really be accused of moving the Constitution to the right by supporting one of Bill Clinton's signature policy achievements.
- FISA: This is the most problematic of the six issues; the new FISA language is unacceptably loose, and does not hold the executive branch sufficiently accountable for violations. But the issue that's getting Obama the most flack, namely telecom immunity, is not, strictly speaking, a civil liberties issue. We don't need bankrupt telecom companies; we need to hold the executive branch itself accountable. Obama isn't doing that, but neither is anyone else. Congress obviously lacks the political will to do what needs to be done, which means that more private-sector activism is needed to make this an issue that legislators can't ignore.
- Death penalty for serial child rapists: For decades, the Supreme Court has implied that the death penalty is not an acceptable punishment for crimes that do not directly result in the death of another person--but Barack Obama would make an exception for serial child rapists. In this respect his position is well within the boundaries of the Democratic mainstream. In fact, Bill Clinton's 1994 crime reform bill--spearheaded by Joe Biden and passed under a majority Democratic Congress--expanded the federal death penalty to include sixty historically noncapital crimes, including some drug-related offenses. Do the authors really expect us to believe that executing drug traffickers is acceptable and consistent with a civil liberties approach to the Constitution, but executing serial child rapists is not?
- Late-term abortions: Obama has taken some heat for saying that mental distress is not an appropriate health exemption for allowing abortions past the point of viability, defined at 24 weeks in Roe v. Wade (1973) and 22 weeks in Casey v. Planned Parenthood (1992). But a mental distress exemption would render post-viability abortions elective (anyone can express mental distress at any time for any reason), and I would question the sanity of anyone who actually supports elective abortions past the point of viability. Roe v. Wade, which states quite clearly that "[s]tate regulation protective of fetal life after viability ... has both logical and biological justifications," certainly isn't consistent with the notion of elective third-trimester abortions. Nor is elective third-trimester abortion consistent with the policy platforms adopted by Bill Clinton, Al Gore, John Kerry, or Hillary Clinton.
- Punitive damages: Again, we witness a tort issue reframed as a civil liberties issue. In Exxon v. Baker, the Supreme Court held that a 4:1 ratio between punitive and compensatory damages is excessive--that a court can't award $500 million in compensatory damages and then tack on $2 billion in punitive damages. This ruling prompted outrage among some, but it is difficult to see how a 4:1 or greater ratio of punitive damages doesn't violate the spirit of the Eighth Amendment's prohibition against excessive fines. Even if we operate under the assumption that it doesn't, it is difficult to read Obama's decision not to oppose this ruling--limiting the state's authority to punish private entities without a criminal trial--as some sort of assault on our constitutional rights.
- Campaign finance reform: Kendall and Lithwick also object to Obama's relatively mild support for a campaign finance reform regulation releasing limits on campaign contributions in cases where a candidate faces a wealthy self-financed opponent. But selective and contextual regulation of campaign donations always introduces new First Amendment problems, and it's difficult to see how discomfort with such context-specific regulations would constitute a threat to the integrity of the Constitution.
One such issue is same-sex marriage. While Obama still technically opposes marriage equality, a position that he has held since the beginning of his campaign, he has also stated firm opposition to the proposed California referendum banning same-sex marriage. When John Kerry confronted a similar situation with a proposed Massachusetts ban on same-sex marriage, he supported the ban. And when Bill Clinton was confronted with the remote possibility of same-sex marriage in Hawaii, he actually signed the Defense of Marriage Act, a ban on federal recognition of same-sex marriage that is still in effect to this day.
Obama is clearly making an effort to reach out to centrist voters, as he did when he ran for the U.S. Senate in Illinois (a state that went Republican in every presidential election from 1968 to 1988)--but by the standards of the Democratic Party, his record on civil liberties remains impressive.
Related: Barack Obama on Civil Liberties Issues
Comments
You’re completing missing the point on late term abortions. They’ve been banned in most states because of the idea that they’re elective and done at the whim of the mother.
That’s almost never the case. They are usually decided between the mother and her doctor. They are chosen when the infant turns out to have some previously unknown birth defect. They’re chosen when the infant has died in the womb. They’re chosen when the mother’s health becomes an issue, such as cancer.
To suggest that women with viable infants are having these abortions on a whim, is to join the radical right in their movement to end not only abortion of any kind, but to ultimately end the availability of birth control.
Persephone, a mental distress clause does effectively constitute rendering post-viability abortions elective, and there is absolutely nothing in the pro-choice movement that has ever centered on the idea that post-viable fetuses can be terminated electively. The whole point of Roe is that the viability threshold is the point at which a fetus is treated like a human person rather than as a part of the woman’s body. There is strong scientific evidence to support the 22-24 week window outside of viability, as that’s also the point at which the neocortex tends to develop and forebrain-mediated cognitive function becomes possible.
I saw a weird emphasis on third-trimester abortions following the Gonzales v. Carhart ruling, and I hope that’s not the direction national leaders in the pro-choice movement are headed. Now is not the time to be challenging the viability standard, in either direction.
And I am aware, by the way, of the fact that third-trimester abortions are (a) extremely uncommon and (b) performed pretty much exclusively for serious medical reasons–which is one of the reasons why I can’t understand why anyone would favor an elective “mental distress” standard anyway. Who would actually use it?
Obama is just like all of the rest of them. He says his campaign is funded by small donors not fat cats, but his campaign has gotten only 45% of its funding from small donors. His campaign is spending way way way way way more than any presidential campaign should be allowed to spend.
The problem is that if you or anyone else starts deciding what constitutes mental distress or putting any limits on abortion, there will always be problems that arise. Mental distress is distress. It doesn’t matter that it’s not physical, it can have a tremendous affect on life and health. To write it off as “the blues” is completely unacceptable. It, again, is something to be handled by the mother and doctor. A legislator cannot be allowed to decide what is mental distress.
On another board, several members posted about women in their families who died because the fetuses had died late term and decomposed inside the mother, and the local doctors refused to do a late abortion out of fear of being arrested. There was no legal basis, at the time, for their decision, but the fear is there.
According to many people, a viable fetus, no matter how ill or disabled should be protected. But is that really fair to the parents who would be responsible? If the child survives and the parents don’t want it or can’t care for it, who will care for it?
Doctors are continually forced to make decisions based on survival and quality of life. If these decisions can be made with the fully informed mother, then they should be made as soon as the information is acquired, no matter how late term the pregnancy.
Again, it comes back to abortion should be a decision between a woman and her doctor. It is not a decision for a legislator to make.
I find abortion personally abhorrent, yet, if I had found out in the third trimester that my child would suffer in pain or with an extreme disability for all of its life, then I would want to have the right to an abortion available to me.
Obama and his advisors sold him as a progressive. His decisions make it clear that he is not.
I didn’t vote for him because of what I learned about him when he started his run for the nomination, not because he’s black or not a woman. He’s part of a political machine. He’s as much a sock puppet as George W. Bush.
Persephone writes:
“The problem is that if you or anyone else starts deciding what constitutes mental distress or putting any limits on abortion …”
Again, Roe v. Wade puts limits on abortion. People who say that elective third-trimester abortion–abortion without any limits–is what the pro-choice movement is really about are going to find that very few people in the movement are willing to go that far, at least in my experience.
If you want to criticize Obama for being part of a political machine, that’s your business. I’m not telling you who to vote for. But I doubt you’ll find any major-party presidential candidate who supports an elective mental distress standard for third-trimester abortions.
By the way, I completely agree that third-trimester abortions should be legal in cases where the fetus is clearly non-viable or the mother’s physical health is at serious risk. Nobody in the pro-choice movement has disagreed on that point, nor has Obama. At issue is the “mental distress” standard–which would only be applicable in cases where the woman’s physical health is not at risk, the fetus is completely viable and healthy, and she decides to terminate the pregnancy anyway. Roe says that this is not acceptable past the point of viability. Obama got in trouble for saying the same thing.
What I’m telling you is that if elective third-trimester abortion is the new standard by which candidates will be judged, that seriously limits the number of possible candidates. The only public intellectual I can think of who might actually support elective third-trimester abortions is Peter Singer and, being Australian-born, he isn’t eligible to serve as president.