I’m old enough to have concluded, not so long ago, that I probably would not live to see Americans elect a truy reflexive – yet thoughtful – civil libertarian as President. I had hoped that Bill Clinton would be such a President, at least until he actually moved into the White House. Just his act of signing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) (summary here) was enough to sober me up. Anyone who thinks that George W. Bush was the first president in modern times to shred habeas corpus has a very short memory and should read AEDPA and some of the related commentary.
But there’s reason to hope that the next President might do a better job of protecting Americans’ civil liberties than Clinton – or his predecessors or successor – did. Jeffrey Rosen, the talented legal columnist and analyst for The New Republic, just posted an essay online – subscription required; also to appear in a forthcoming issue – in which he posits that Barack Obama, if elected to the presidency, could readily be “the first civil libertarian president.” I suppose it depends on how far back one goes to determine who’s “first” (Jefferson was very good in theory, but only pretty good in practice). If we examine not only Obama’s positions (it’s awfully easy to talk a good game, of course), but also his actions over the years, we come away with a sense that mirrors Rosen’s conclusions.
There are two policy areas which to me are really the tip-off that Obama is the real thing.
First, when he was a State Senator in Illinois, he championed and got enacted a bill that required that all interrogations and confessions be videotaped in capital cases. This is not an easy sell for either the public or for police and prosecutors. But experience tells us that false confessions, as a result of unfair or coercive interrogations, are a major cause of false convictions, including and especially in murder cases. As a criminal defense lawyer, I can attest (from personal experience) to the extent to which things can go wrong when police are allowed to claim that a defendant confessed in an off-the-record discussion or interrogation session. Because it declaws coercive interviewing and deters police from misconduct during interrogations, required taping of confessions is an essential arrow in the quiver of anyone truly supportive of liberty. Obama made it a centerpiece of his legislative program in Illinois. It takes some guts to be publicly in favor of the rights and liberties of criminal defendants. Bravo!
But there’s another, equally controversial issue where Obama emerges as a consistent but sane civil libertarian – gun control, one of the third rails of American politics. He stands in opposition to those liberals who believe that the Second Amendment does not assure an individual’s right to bear arms. (Those who subscribe to this theory hold, instead, that the Second Amendment merely guarantees to states the right to maintain arms for the purposes of militias.) Those of us who believe in liberty as the default position, and read the text of the Amendment through that lens, naturally come out in favor of a strong individual right to gun ownership. But Obama also stands in opposition to those conservatives who believe that the Second Amendment prohibits the state from enacting even reasonable restrictions (“gun control”) on this constitutional right. Obama suggests that the gun rights guaranteed by the amendment are “subject to common-sense regulation just like most of our rights are subject to common-sense regulation.” This has caused David Weigel to suggest on Reason Magazine's Hit & Run blog that Obama “is a civil libertarian, except when he is not.” But Weigel is wrong on this: Even free speech rights, protected by the First Amendment, are and always have been subject to reasonable time, place and manner restrictions. I’m as close as one can come to being a free speech absolutist, and yet even I believe that it is properly unlawful to phone someone at three o’clock in the morning, day after day, to either damn or praise him or her. (Although I prickle at the way the term ‘harassment’ is thrown around, it’s true that there is indeed a form of speech that is harassment. This would be a natural example.) So extending Weigel’s logic from the Second to the First Amendment, anyone who accepts even a minor deviation from the absolutist free speech stance “is not … a civil libertarian.” It’s unreasonable to think that only absolutists are civil libertarians.
Both of those policy areas make me think that we might well have in Obama – a former lecturer in constitutional law at the University of Chicago – a sane civil libertarian who will naturally annoy those on the far left and on the far right. In itself, it’s a good sign that he even bothers to think about these things.