No We Can't

By Wendy Kaminer,

        Barack Obama is poised to become “our first president who is a civil libertarian,” Jeffrey Rosen wrote hopefully and not without reason, less than 6 months ago.  But it didn’t take long for the audacity of politics to expose the naivete of hope.  Today, given Obama’s support for the grossly and gratuitously anti-libertarian FISA amendments (painstakingly explored by the tireless Glenn Greenwald,) civil libertarians are likely to vote for him with a lot more resignation than enthusiasm.  Today, Obama is merely poised to become a president who would be more sensitive to civil liberty than John McCain and would leave us with a centrist Supreme Court rather than a right wing extremist one.  That’s change we can manage to tolerate. 

        Too bad that a candidate who ran against political cynicism is now encouraging it, but we should have known better than to hope that a presidential candidate would look favorably upon limiting presidential power.  It’s no coincidence that a nation founded on a dream of individual liberty (for some) over 225 years ago still awaits a civil libertarian president.  Jefferson had his moments, as Harvey Silverglate suggested here, but no slaveholder can be called a civil libertarian.  James Madison had his moments too, but both Jefferson and Madison made their primary contributions to liberty in imagining the nation, not presiding over it.  If Obama wins the presidency (and I continue to hope that he does) he will (like virtually all presidents) guard the prerogatives of power that civil libertarians seek to restrict.

        Congress and the courts will often fail us too (as passage of the FISA amendments showed,) but for all their faults, Congress and the courts probably offer the best checks against the apparently irresistible temptations of the imperial presidency.  Even a right of center Supreme Court has required the Administration to provide at least minimal due process to Guantanamo detainees. Even the reliably craven Congress includes some good civil libertarians (see who voted against the FISA amendments,) and Democrats in Congress derive whatever strength they can muster from numbers.  The ’08 Senate races are perhaps as important as the race for the White House, which civil libertarians should always regard as alien territory.  Approach the president as a friend or allow him to embrace you as one, and instead of opposing his power you’ll probably be seduced by proximity to it.  Civil libertarianism is a game for outsiders.