In a speech occasioned by the wide and justifiably negative public reaction to videotapes of his pastors sermons, Barack Obama offered us his vision of what some have called “the American experiment,” the imperfect, but perfectible, union inaugurated by the adoption of the Constitution. Whats most remarkable about a speech that was delivered at the National Constitutional Center and that opens with explicit references to the Constitution is how little guidance it derives directly from our founding document.
Lets begin where Senator Obama begins, with the Preamble. In full, it reads as follows:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
While the authors of the Constitution sought to achieve multiple goals, Senator Obama focuses on onethe “more perfect Union.” To the Founders, this meant, above all, overcoming the manifold problems inherent in the Articles of Confederationamong them, a central government too weak and too dependent upon the states to fulfill even the limited responsibilities with which it was charged. The “more perfect Union” created by the Constitution remained, first and foremost, an arrangement in which the national government had limited responsibilities, with much left to the states, which would remain the centers of our civic and communal life. To be sure, the federal government would no longer be dependent upon voluntary cooperation from the states to accomplish its aims, but it would also not have an open-ended responsibility to accomplish every good thing anyone could imagine enjoying as a result of belonging to a community.
By contrast, Senator Obamas perfect union seems to require that we all come together as part of a national community, largely by the prompting and under the superintendence of the federal government. Here is how he begins his critical discussion of the Constitution and the project it inaugurates:
The document they produced was eventually signed but ultimately unfinished. It was stained by this nations original sin of slavery, a question that divided the colonies and brought the convention to a stalemate until the founders chose to allow the slave trade to continue for at least twenty more years, and to leave any final resolution to future generations.
Of course, the answer to the slavery question was already embedded within our Constitutiona Constitution that had at its very core the ideal of equal citizenship under the law; a Constitution that promised its people liberty, and justice, and a union that could be and should be perfected over time.
And yet words on a parchment would not be enough to deliver slaves from bondage, or provide men and women of every color and creed their full rights and obligations as citizens of the United States. What would be needed were Americans in successive generations who were willing to do their partthrough protests and struggle, on the streets and in the courts, through a civil war and civil disobedience and always at great riskto narrow that gap between the promise of our ideals and the reality of their time.
There is much to unpack, admire, and quarrel with in this very dense and subtle passage. First, theres Senator Obamas implicit homage to Abraham Lincoln, who insisted that “this government cannot endure permanently half slave and half free.” Because it didnt deal finally with the problem of slavery, the Constitution, Senator Obama says, was “unfinished.” He presents the Founders as temporizers, weakly allowing the continuation of the slave trade, without fully acknowledging what a signal accomplishment it was to mention in the Constitution that the slave trade mightone day soonbe prohibited (which Congress did at virtually its first legitimate opportunity). But since he also concedes that “the answer to the slavery question is already embedded within our Constitution,” what the Founders wrought cant be all that bad. We had the resources within our own tradition to overcome our “original [political] sin.”
But Obamas statement of those resources owes less to the Constitution or to its theoretical inspirationthe Declaration of Independencethan it does to contemporary liberalism. Consider the contrast between Obamas presentation of liberty and the statement in the Preamble. According to the latter, the role of constitutional government is to help us “secure the blessings of Liberty”; our Creator endows us with liberty, while governments role is to protect what we have. For Senator Obama, the Constitution promises us liberty. Constitutional government is the source of liberty, not the protector of our liberty. You might say this is a distinction without a difference, but the language is significant. The constitutional language is the language of natural rights; Senator Obamas language is that of positive rights, granted by a document or by a government. Government isnt merely our protector, its our benefactor, without which we couldnt even claim liberty. That liberty is not our birthright, but rather a gift of government, is also implied by the word promise. Our liberty is something that occurs in the future, as a result of government action, not something that, as part of our natures, antedates any and all governments. The implicit positivism of Senator Obamas understanding reflects the embarrassment contemporary liberal theory feels about the classical liberal language of natural rights.
To be sure, Senator Obamas vision of the promise of liberty and justice for all isnt simply paternalistic. Fulfilling “the promise of our ideals” has requiredand continues to require”protests and struggle, on the streets and in the courts, through a civil war and civil disobedience.” This makes for a stirring narrative, affirming the justifiable pride and dignity of people who worked hard to demand what they had coming. But consider also whats missing. Theres violence and non-violence, action on the street and in the courtroom, but no mention of the role of legislation and the rule of law. The latter is of course central to the classical understanding of liberty and also to the example of Abraham Lincoln, who embarked upon the Civil War with full cognizance of his solemn responsibility to uphold and enforce the law and of the limits the law (and the Constitution) placed upon his ability to eliminate the injustice of slavery. In Senator Obamas picture of the fulfillment of our ideals, theres a major role for civic and judicial activism, but not much place for the nuts and bolts of constitutional governmentpassing and enforcing laws, following the forms and formalities, and respecting the limits, demanded by the “boring” procedural parts of the ConstitutionArticles I and II, as opposed to the Bill of Rights. The latter, after all, serves as the basis for the actions of heroic lawyers and judges on behalf of the victims of injustice.
We can defend, or at least excuse, Senator Obama here because he simply follows what has become the conventional narrative about how our rights are protected under the Constitution. Our bulwark, every schoolchild is told, is the Bill of Rights, enforced by judicial review of lawsmade by any level of governmentthat are said to infringe on our rights. Never mind that this is a vast oversimplification, overlooking, above all, the role of the Constitution as a limited grant of power to the federal government, the role of competition between the political branches in enforcing those limits, and the role of states in our federal system, as it was originally understood. In short, this oversimplification replaces political debate and deliberation with the adjudication of claims that are thought to be non-negotiable. The vision of citizenship it embodies is that of the litigant, the agitator, or the victim, not that of the responsible and active participant in self-government.
This oversimplification gains respectability from the fact that so many sophisticated people share it, especially those who, like Senator Obama, teach, or once taught, constitutional law. As taught in most law schools, that subject focuses on how judges have interpreted the text, not on the text itself. Law students read opinions about the Constitution, not the Constitution itself. All too often, they focus on what arguments might work now to persuade judges, not on what the Constitution meant to those who wrote or ratified it. Theres a premium on rhetorical and theoretical cleverness, not on fidelity to the text.
In sum, Senator Obama quite impressively translates the theoretical sophistication of the courtroom and law school classroom into the vernacular of the elementary schoolroom. Were left with glittering generalities to which any agenda can be tied.
And tie it he does, asserting that his campaign is the continuation of “the long march of those who came before us, a march for a more just, more equal, more free, more caring and more prosperous America.” I dont begrudge his claim to the adjectives, and I dont expect qualifications and caveats in a political speech. But weve left the Constitution behind here, moving from “equal protection of the laws” to equality simply and tying compassion to a document whose authors wrote about ambition counteracting ambition.
We must, he tells us, “perfect our union,” not by coming to a proper understanding of the legal and constitutional relationship between federal and state responsibilities, but rather “by understanding that we may have different stories, but we hold common hopes; that we may not look the same and we may not have come from the same place, but we all want to move in the same direction – towards a better future for our children and our grandchildren.” Weve moved from the legal and constitutional to the communal and emotional.
Senator Obamas hopes for America are indeed audacious. Im again reminded of Abraham Lincoln. Consider, for example, the peroration of his First Inaugural Address:
I am loth [sic] to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching [sic] from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.
This is a powerful call for unity in the face of a great crisis, a crisis occasioned byas Senator Obama would have itour “original sin.” But this call occurs at the end of a long disquisition about what President Lincoln can and cannot do under the Constitution, about the limits of federal power and the solemn responsibilities of a federal executive. He can evoke the “mystic chords of memory,” reminding us of the sacrifices made on behalf of “the American experiment” by our forebears. And no one has done it any better than he did in the Gettysburg Address:
But, in a larger sense, we can not dedicatewe can not consecratewe can not hallowthis ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before usthat from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotionthat we here highly resolve that these dead shall not have died in vainthat this nation, under God, shall have a new birth of freedomand that government of the people, by the people, for the people, shall not perish from the earth.
Abraham Lincoln presents himself as the bearer and spokesman of a tradition, grounded ultimately in the principles of the Declaration of Independence and hallowed by the sacrifices of patriots. The tradition doesnt supplant or overwhelm the Constitution, but rather finds expression through its forms. If we wish to honor the sacrifices of our predecessors, then we will be true to the form of government they established. They bore a burden so that we could enjoy the fruits of our liberty. Their burden becomes our burden, as we strive to live up to the standard they set.
Stated another way, for Lincoln national unity comes from history and principle, from a history of attempting to live up to principles.
For Senator Obama, unity is a task still to be accomplished. It cant be found in our history, because our history is marked by “original sin,” and the painful legacy of discrimination in which it eventuated. Black and white Americans dont regard their past from the same vantage points, and hence cant really share it, as Senator Obama concedes in his discussion of his pastors incendiary statements. Were taught that in school, too: the Declaration, schoolkids are told, only asserted the equality of white men. (Perhaps thats why Senator Obama doesnt explicitly mention it, preferring the language of the 14
The problem with a future-oriented unity is that its either vacuous or a bone of contention. Yes, we all want our children and grandchildren to prosper, but what does that mean? Does it mean more choices, more “liberty” (however thats understood)? More equality (however thats understood)? More virtue (however thats understood)? And so on.
I will give Senator Obama the benefit of a doubt and concede that his vision of our common future isnt vacuous. But that makes its content a bone of contention, and hence not a source of unity. For example, consider his “true” explanation of a common source of everyones indignation:
[T]he real culprits of the middle class squeeze [are] a corporate culture rife with inside dealing, questionable accounting practices, and short-term greed; a Washington dominated by lobbyists and special interests; economic policies that favor the few over the many.
Or consider his vision of a common future:
[A]t this moment, in this election, we can come together and say, “Not this time.” This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children. This time we want to reject the cynicism that tells us that these kids cant learn; that those kids who dont look like us are somebody elses problem. The children of America are not those kids, they are our kids, and we will not let them fall behind in a 21st century economy. Not this time.
This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who dont have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together.
This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesnt look like you might take your job; its that the corporation you work for will ship it overseas for nothing more than a profit.
He would have us find our unity in a common resentment of “special interests in Washington,” of corporations that “will ship [jobs] overseas for nothing more than a profit.” (I note in passing that hes less specific in according blame for our failing schools. Far be it from him to mention “special interests” in that context, since the dominant special interests there tend to support him.)
Aside from the fact that I can easily imagine a competing vision of the future that trades less on resentment and more on the promise of “good old American initiative and know-how,” of entrepreneurship and elbow grease, of individual self-sufficiency and risk-taking, there is also this: Senator Obamas unity depends upon mobilizing resentment of an Other. In his case, the Other isnt described in racial, ethnic, national, or religious terms, but rather in terms of class. We the people can be unified against the special interests, the uncaring corporations that only seek to make a profit. This isnt exactly a novel move in American political history, it isnt exactly a new beginning or an overcoming of a sordid past. At most, its a new and improved version of what Al Gore and John Edwards tried in the past two elections. The delivery is smoother and less rancorous, focusing more on anxiety than resentment. And the rhetorical gloss is more highfalutin: Senator Obama isnt for the little peoplehe doesnt admit to being a class warriorhes for unity against the special interests, who happen to be people of a particular class.
In the end, Barack Obamas “perfect union” isnt the fulfillment of a distinctively American promise. Its not really rooted in our history, our Constitution, or our institutions. Its rooted, rather, in his ability to combine contemporary liberal rights theory (derived neither from nature nor from the text of the Constitution) with the mobilization of widely-felt anxieties. This is indeed audacious: I can think of no more plausible and winsome means of empowering government limitlessly to order all our circumstances, of erasing the irony in the statement, “Im from the government and Im here to help.”
It is a contestable vision of our future. Should Senator Obama win the Democratic nomination, I hope that Senator McCain has the wherewithal to contest it.
Joseph M. Knippenberg is an adjunct fellow of the Ashbrook Center. He is Professor of Politics at Oglethorpe University.