FEBRUARY 27, 2008
If Barack Obama were to win the Democratic nomination and the White House, he would be, among other things, our first civil libertarian president. This is clear not just from his lifetime rating on the ACLU’s scorecard (82 percent compared to John McCain's 25 percent). It is clear from the fact that civil liberties have been among his most passionate interests--as a constitutional law professor, state legislator, and senator. On the campaign trail, he has been unapologetic about these enthusiasms. In New Hampshire, I heard him end a rousing stump speech by promising the cheering crowd, "We will close Guantanamo, we will restore habeas corpus, we will have a president who will respect and obey the Constitution." Has a political consultant ever urged a candidate to brandish habeas corpus?
Being a committed civil libertarian, of course, is not an obvious credential for winning national elections. Would Obama be able to reassure skeptics who fear he would be soft on terrorism, while at the same time creating a national consensus for defending liberty? His approach to civil liberties throughout his career suggests he would.
After graduating from Harvard Law School in 1991, Obama went to work for a civil rights firm in Chicago, where he represented whistleblowers, community organizers, and black voters challenging discriminatory ward boundaries. During the same period, he developed an approach to constitutional law--which he was teaching at the University of Chicago--that has proved especially relevant to civil liberties debates. The Constitution, he wrote in The Audacity of Hope, "forc[es] us into a conversation, a 'deliberative democracy,' in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent." Discussions about civil liberties require this kind of conversation because they attract an unusual coalition of liberals and conservatives under one umbrella.
After Obama was elected to the Illinois state Senate in 1996, he defended individual rights in a way that might have marginalized him: He joined only two other senators in voting against a bill to forbid convicts on probation from having contact with street gangs, and he voted against a bill to expand the death penalty to gang-related murders. But Obama nevertheless won the respect of police and prosecutors in Chicago by building those "alliances of consent." One of his greatest legislative triumphs was a bill to require the videotaping of all confessions and interrogations in capital cases. Initially, police, state prosecutors, and the newly elected Democratic governor were strongly opposed, some death-penalty abolitionists viewed the bill as too moderate, and legislators were afraid of being soft on crime. But Obama led daily negotiations (without reporters) during which he emphasized his opponents' common values. At the end, the bill had the support of all parties, passed unanimously, and today has been adopted as a model by four states and the District of Columbia.
Obama's approach in the U.S. Senate was similar. He became a co-sponsor of the SAFE Act, the bipartisan reforms that would have corrected the worse excesses of the Patriot Act, and encouraged the coalition of civil libertarian liberals and libertarian conservatives who supported it, from the ACLU to the American Conservative Union.
But Obama's approach to civil liberties debates is not only based on his skills as a conciliator. He combines a pragmatic willingness to build coalitions with a precise understanding of what existing constitutional doctrine allows. Cass Sunstein, an Obama adviser and TNR contributor, recalls a phone call with Obama after Sunstein suggested that President Bush's warrantless wiretapping might possibly be legal. The two discussed whether the president had this authority. Sunstein said it might come from Congress's authorization to use force after September 11; Obama suggested that this authorization was barred by the earlier and more specific Foreign Intelligence Surveillance Act. Sunstein noted that some lower courts had suggested that the president might have inherent authority to act, and Obama retorted that the Supreme Court had never endorsed that view and, in any case, there was a possible Fourth Amendment issue on the other side. At that point, Sunstein recalls, "I said, 'Yes, sir.'" In Obama's view, says Sunstein, there is no overriding tension between liberty and security; instead, each value strengthens the other.
Would Obama's civil libertarianism hurt him in a campaign against a war hero like John McCain? It's hard to imagine McCain successfully impugning Obama's patriotism the way the first President Bush did in ridiculing Michael Dukakis as a card-carrying member of the ACLU. Unlike Dukakis, Obama is not a knee jerk civil libertarian--he does not, for instance, reflexively oppose the death penalty in all circumstances. Obama's commitment to building a national consensus on civil liberties trumps ideological stridency.
More to the point, would Obama's presidency be paralyzed by legalistic concerns about civil liberties? It would certainly be a problem if, in a national security crisis, he refused to seek emergency surveillance powers because of constitutional concerns. But this seems unlikely because Obama's approach to civil liberties is not legalistic. He has written that the Constitution "sees our democracy not as a house to be built, but as a conversation to be had," and he seems inclined to be flexible when facing legal barriers he believes are unjust or impractical. What's more, his determination to convert a bipartisan minority of committed civil libertarians into a new national majority grows out of a deep understanding of history: Civil liberties protections have grown when their political support expanded as well.
In his book The Terror Presidency, Jack Goldsmith, a former Bush administration official, notes the irony that Bush, who is not a lawyer, allowed radically legalistic positions to be taken in his name, expanding executive authority to the breaking point. By contrast, Goldsmith writes, Lincoln and FDR understood that both emergency actions and civil liberties protections were necessary in war time and that the balance between them was ultimately a political matter. Civil liberties protections in America have never been static commands from unelected judges. They have evolved in response to grassroots activism and political leadership that can mobilize bipartisan consensus. That's the kind of leadership that Obama's entire career has uniquely prepared him to offer.
This article originally ran in the February 27, 2008, issue of the magazine.