The Constitution and Obama’s Dissaopinting Stand on FISA

June 21st, 2008 Posted in Of Interest

I have never seen the “halo” that others have claimed for Obama (usually his opponents, at the many moments they claim it has just been removed). But since my posts to this blog have been relentlessly pro-Obama, here’s my chance to prove that I’m not simply a true believer.

While public financing is a non-issue, this is the kind of real capitulation that will create disappointment among many Obama supporters. It’s not the first time Obama has disappointed — his support of Lieberman and pandering to AIPAC are the most notable example.

On the one hand, I have no desire to see a candidate commit political suicide, and I am entirely comfortable with a candidate making rhetorical (AIPAC) compromises when I have reason to believe his behavior will be principled. But supporting the passage of a constitution-subverting law is another matter. The promise to oppose telecom amnesty is heartening, unless it is merely political theater, as it may be; but the the promise to use his new powers wisely is a lapse into Bush “trust me” territory. And as such it represents a misstatement (by someone who has taught constitutional law) of the point of the constitution and the separation of powers — “trust me” does not work when it comes to human beings. The role of the constitution is to take as much power as possible away from any one human being and bestow it as much as possible on an abstraction — on “law.” Part of the power of this abstraction is the intermediating game it creates: the players, the rules, their interpreters and executors, and the makers of corollary rules; and finally, the extreme difficulty in reflexively amending the core principles. The players and interpreters are fallible, but an abstraction has a stubborn life of its own.

Of course, the abstraction can be dismantled. It’s not the extreme corruption of one power-hungry individual or another that makes that possible, because such individuals are legion in politics, but a general political climate that appeases them — often the result of a humiliation felt at the national level (Versailles, 9/11). There is a more powerful, competing abstraction here, and that is nationalism. And it is designed to lend its power on its most vocal advocates — to those who create the fear that feeds it. Where the Constitution represents restraint, what the moment seems to require is unfettered action — men of deeds, not words. That’s why we’re told that terrorism is not a “law enforcement issue”: law is weakness. It is the fatherland that counts, and its strong father-like protectors.

There is a complication here, which is that the choice of an executive is largely characterological: the more decent and trustworthy they are, the better. And I have argued since before Obama was an electoral phenomenon that Obama gives off good psychological cues in this regard. And this is how voters make decisions, despite all the telling protestations about “issues.” Clinton supporters fought not for issues but for the character with whom they identified — as indicated by the fringe not to vote for Obama. (Talk of “experience,” incidentally, is the perfect rationalization here — since it means to milk personal identification for policy implications). And often issues are just a stand-in for the valuation of a certain type of character: my friends who think of the Democratic party as “tax-and-spend” cannot be moved by evidence that Obama’s undoing of a regressive payroll tax will help them and that McCain’s corporate tax breaks will not help them. What they care about is the general principle of the matter–the idea of self-reliance, the value of capitalism as the playground of the self-reliant, and so on. Actual taxes do not matter to them: what matters to them is being on the side of the people who value strength — mercantile and military.

The problem with making decisions based on character is that no-one is really trustworthy. Human beings are fallible (as Obama notes in his better moments). The integrity of the constitution and the general political climate that determines its fate is a much bigger national security issue than terrorism. Terrorists can destroy lives and physical infrastructure, but the loss of core institutions and principles would be politically fatal.

I am not making, by the way, the cynical argument that all politicians are the same, that elections are always a choice of evils, and that we can expect the same level of selling out and corruption from everyone. But it’s important that stand on principle and criticize even our candidate of choice when it is called for (not to mention email and call his campaign to register grievances).