The New York Review of Books
Ronald Dworkin
John McCain's election would be a disaster for our Constitution. Conservatives have worked for decades to capture the Supreme Court with an unbreakable majority that would, in every case, reliably serve their cultural, religious, and economic orthodoxies. That goal has so far escaped them. Though Republican presidents have appointed seven of the nine justices now serving, only four of them—John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—are dependably rigid conservatives. Four other justices—two other Republican appointees, John Paul Stevens and David Souter, and the Democratic appointees Ruth Bader Ginsburg and Stephen Breyer—have voted consistently in favor of more liberal interpretations of the Consti-tution. The ninth justice—Anthony Kennedy—holds the crucial "swing" vote that has decided cases of capital importance, sometimes with the conservatives and sometimes with the liberals.
In recent decades another justice, Sandra Day O'Connor, was also a "swing" justice. (She resigned in 2005 and Bush replaced her with Alito.) Our constitutional law would be very different if O'Connor and Kennedy had been conservative ideologues of the kind McCain has promised to appoint. They joined liberals, for example, in refusing to overrule Roe v. Wade and end constitutional protection for abortion rights, in preventing capital punishment of children under eighteen, and in protecting homosexuals against laws making sex between them a crime. O'Connor joined liberals to provide a 5–4 majority that saved race-sensitive admissions programs in state professional schools, a crucial decision that, had it gone the other way, would have ended what has proved an indispensable strategy for reducing racial imbalance in the professions.
When O'Connor resigned, Kennedy's vote became even more crucial. He joined conservatives in some dangerous 5–4 decisions: approving a law banning so-called "partial birth" abortions, striking down sensible and nondiscriminatory plans to reduce racial isolation in public schools, and declaring that the Constitution's Second Amendment gives private citizens a constitutional right to own handguns. Still, the opinions in these cases were all somewhat guarded because the conservatives needed his vote and had to make qualifications to secure it. In other recent cases he voted with the liberals to restrict capital punishment and—in probably his most important vote—to deny Bush's appalling claim that any foreigner he designated an unlawful enemy of America could be held indefinitely without any form of judicial review.
If McCain wins, however, Kennedy's vote would probably be irrelevant and his influence negligible because Mc-Cain's first appointment would probably create an unstoppable rock-solid conservative majority for a generation or more. (Stevens is eighty-eight, Souter sixty-nine, and Ginsburg, Kennedy, and Breyer in their seventies.) We cannot predict all the important constitutional issues that might arise in that long period. But it seems likely that a solid ultra-conservative majority would finally wipe away all constitutional protection for abortion, which Scalia and Thomas have repeatedly vowed to do. Such a majority would also allow a significantly greater role for religion in public schools and public displays and occasions; effectively end any form of affirmative action in employment or education; cut back on protections for accused criminals; and again broaden the scope of capital punishment.
Most frightening of all, it would likely embrace the Bush administration's most extravagant claims of presidential power: the so-called unitary executive doctrine Garry Wills describes below, which allows the president dictatorial powers over all executive functions, including the power to wage war, spy on citizens, and detain and torture prisoners, ignoring any congressional constraint.
bama's promise is as great as McCain's threat. His race and background would refute the charges of American racial arrogance that have helped recruit many angry terrorists. His remarkable and apparently near-unanimous appeal abroad—an appeal the insular Republicans scorn—would immediately help redeem our soiled international reputation. He has a striking, deep intelligence, and a gift for combining clarity and strong feeling in his writing and speeches; and he uses these qualities to expose and explain complexity rather than bury it under slogans. It is said that he lacks experience. On the contrary, he alone among prominent politicians has the experience that counts most in a threatening and densely interdependent world: the crucial experience of empathy. He has lived, and been poor, in both domestic and foreign worlds that few national politicians can even imagine.
We desperately need, most of all, a renaissance of international law and order. The Bush administration has nearly destroyed international law; it has debased our moral as well as our fiscal currency. America cannot face the growing terrorist threat effec- tively, or the equally menacing ter- rors of climate degradation, unless the world creates new institutions and doctrines of international law with genuine power and authority. That is an extremely difficult goal, but not impossible since the other great powers now have the same incentives we have to bring law back to the international realm.
The project cannot even begin, however, without a radical change in the mind-set of Americans, who should understand that we are no longer law-givers dictating to the world but partners who must accept compromise and risk as others do. Otherwise we will be pushed to history's back benches. As the first debate made plain, McCain embodies the national illusion of self-sufficient go-it-alone power. We need a president who has the intelligence, clarity, and passion to dispel that illusion. Obama's eloquence is among his most important qualifications, though Republicans mock him for it, because he can provide the mind-changing inspiration that democracies most need in times of crisis—what Lincoln gave us at Cooper Union and Gettysburg, and Roosevelt gave us in ending economic and then isolationist paralysis.
These reasons why Obama should be president make the stakes in this election even greater. Our economy is near catastrophic and worsening, unemployment and foreclosures are increasing, our foreign and military policies are disastrous, the Republican president is ridiculed and despised, the Republican candidate flails and lies. Even a mediocre Democratic candidate should win easily. If a remarkably distinguished candidate like Obama loses, this can be for only one reason. We Americans can do something great in November. Or we can do something absolutely terrible and then live with the shame of our stupid, self-destructive racial prejudice for yet another generation.
Ronald Dworkin
John McCain's election would be a disaster for our Constitution. Conservatives have worked for decades to capture the Supreme Court with an unbreakable majority that would, in every case, reliably serve their cultural, religious, and economic orthodoxies. That goal has so far escaped them. Though Republican presidents have appointed seven of the nine justices now serving, only four of them—John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—are dependably rigid conservatives. Four other justices—two other Republican appointees, John Paul Stevens and David Souter, and the Democratic appointees Ruth Bader Ginsburg and Stephen Breyer—have voted consistently in favor of more liberal interpretations of the Consti-tution. The ninth justice—Anthony Kennedy—holds the crucial "swing" vote that has decided cases of capital importance, sometimes with the conservatives and sometimes with the liberals.
In recent decades another justice, Sandra Day O'Connor, was also a "swing" justice. (She resigned in 2005 and Bush replaced her with Alito.) Our constitutional law would be very different if O'Connor and Kennedy had been conservative ideologues of the kind McCain has promised to appoint. They joined liberals, for example, in refusing to overrule Roe v. Wade and end constitutional protection for abortion rights, in preventing capital punishment of children under eighteen, and in protecting homosexuals against laws making sex between them a crime. O'Connor joined liberals to provide a 5–4 majority that saved race-sensitive admissions programs in state professional schools, a crucial decision that, had it gone the other way, would have ended what has proved an indispensable strategy for reducing racial imbalance in the professions.
When O'Connor resigned, Kennedy's vote became even more crucial. He joined conservatives in some dangerous 5–4 decisions: approving a law banning so-called "partial birth" abortions, striking down sensible and nondiscriminatory plans to reduce racial isolation in public schools, and declaring that the Constitution's Second Amendment gives private citizens a constitutional right to own handguns. Still, the opinions in these cases were all somewhat guarded because the conservatives needed his vote and had to make qualifications to secure it. In other recent cases he voted with the liberals to restrict capital punishment and—in probably his most important vote—to deny Bush's appalling claim that any foreigner he designated an unlawful enemy of America could be held indefinitely without any form of judicial review.
If McCain wins, however, Kennedy's vote would probably be irrelevant and his influence negligible because Mc-Cain's first appointment would probably create an unstoppable rock-solid conservative majority for a generation or more. (Stevens is eighty-eight, Souter sixty-nine, and Ginsburg, Kennedy, and Breyer in their seventies.) We cannot predict all the important constitutional issues that might arise in that long period. But it seems likely that a solid ultra-conservative majority would finally wipe away all constitutional protection for abortion, which Scalia and Thomas have repeatedly vowed to do. Such a majority would also allow a significantly greater role for religion in public schools and public displays and occasions; effectively end any form of affirmative action in employment or education; cut back on protections for accused criminals; and again broaden the scope of capital punishment.
Most frightening of all, it would likely embrace the Bush administration's most extravagant claims of presidential power: the so-called unitary executive doctrine Garry Wills describes below, which allows the president dictatorial powers over all executive functions, including the power to wage war, spy on citizens, and detain and torture prisoners, ignoring any congressional constraint.
bama's promise is as great as McCain's threat. His race and background would refute the charges of American racial arrogance that have helped recruit many angry terrorists. His remarkable and apparently near-unanimous appeal abroad—an appeal the insular Republicans scorn—would immediately help redeem our soiled international reputation. He has a striking, deep intelligence, and a gift for combining clarity and strong feeling in his writing and speeches; and he uses these qualities to expose and explain complexity rather than bury it under slogans. It is said that he lacks experience. On the contrary, he alone among prominent politicians has the experience that counts most in a threatening and densely interdependent world: the crucial experience of empathy. He has lived, and been poor, in both domestic and foreign worlds that few national politicians can even imagine.
We desperately need, most of all, a renaissance of international law and order. The Bush administration has nearly destroyed international law; it has debased our moral as well as our fiscal currency. America cannot face the growing terrorist threat effec- tively, or the equally menacing ter- rors of climate degradation, unless the world creates new institutions and doctrines of international law with genuine power and authority. That is an extremely difficult goal, but not impossible since the other great powers now have the same incentives we have to bring law back to the international realm.
The project cannot even begin, however, without a radical change in the mind-set of Americans, who should understand that we are no longer law-givers dictating to the world but partners who must accept compromise and risk as others do. Otherwise we will be pushed to history's back benches. As the first debate made plain, McCain embodies the national illusion of self-sufficient go-it-alone power. We need a president who has the intelligence, clarity, and passion to dispel that illusion. Obama's eloquence is among his most important qualifications, though Republicans mock him for it, because he can provide the mind-changing inspiration that democracies most need in times of crisis—what Lincoln gave us at Cooper Union and Gettysburg, and Roosevelt gave us in ending economic and then isolationist paralysis.
These reasons why Obama should be president make the stakes in this election even greater. Our economy is near catastrophic and worsening, unemployment and foreclosures are increasing, our foreign and military policies are disastrous, the Republican president is ridiculed and despised, the Republican candidate flails and lies. Even a mediocre Democratic candidate should win easily. If a remarkably distinguished candidate like Obama loses, this can be for only one reason. We Americans can do something great in November. Or we can do something absolutely terrible and then live with the shame of our stupid, self-destructive racial prejudice for yet another generation.
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