How the Recent Democratic National Convention Altered the Party's Message About Our Constitution and What It Means

By EDWARD LAZARUS

Thursday, Aug. 05, 2004

It is no secret that political conventions are about positioning candidates along the political spectrum, and about sending carefully honed messages to the electorate. In this regard, the Democrats used last week's convention to the utmost.

While the Democrats' newly honed stances on foreign policy issues were notable, so were their remarks relating to constitutional issues - most of them with domestic import.

Repositioning the Party on Foreign Policy Issues: Strong on Defense

The dominant message focused on foreign policy and national security. In a conspicuous attempt to reposition themselves, the Democrats assumed a new muscularity and sought to portray themselves as stronger than President Bush and the Republicans on the issue of national defense.

In place of historic attacks on Pentagon waste, Presidential nominee John Kerry - with his Vietnam shipmates at his side - explicitly called for an expansion of the armed forces. And while opposition to the Iraq War still runs strong among the Democratic rank and file, the main speakers at the convention soft-pedaled the party's dovish streak, and accepted the need to finish the job in Iraq, albeit using a multilateral strategy.

A Key Constitutional Theme: The Primacy of the Union and Hence of the People

Such tweaks and adjustments to the Democratic Party's image, however, were not limited to foreign policy. Although neither John Kerry nor Barack Obama, the Convention's keynote speaker, said much directly about the Party's constitutional vision, their speeches may herald some new thinking about our founding document and the rights and obligations it creates and imposes.

To begin with the unsurprising, both Kerry and Obama placed powerful emphasis on the concept of "Union" - the idea that the United States is a single indivisible nation under the ultimate sovereignty of its people. Indeed, this principle of one nation united was a repeated refrain for both speakers.

Here, Kerry and Obama were taking sides in a still vibrant debate that is as old as the Constitution itself. At the founding, some viewed the United States as a creature of the individual states that had together formed the nation. Others viewed the United States as a creature of "the People" themselves, a single unified entity superior to the states.

This debate was by no means academic. To a significant degree, the Civil War was fought to determine which constitutional vision was right.

Those who saw the United States as a creature of the individual states thought the federal government had no right to outlaw slavery, and believed that individual states had the right to secede from the union. By contrast, those who saw the nation as a creature of the People, whose power was superior to that of the states, envisioned a federal government with sufficient power to regulate slavery -- and they went to war to defeat the right of secession claimed by the Confederacy, and to defend the Union.

Although the stakes today are not so monumental, the competing constitutional visions of "states' rights" and "union" (or national power) still mark a fundamental dividing line between judicial conservatives and liberals. Indeed, when historians look back at our time, the Supreme Court under William Rehnquist may well be remembered most for tipping the constitutional balance back towards states rights, while cutting back on the power of the federal government.

In placing the Democratic Party so squarely emphatically on the side of federal power, Kerry and Obama may not have broken new ground, but they do seem to have signaled that reasserting the constitutional power of the federal government to create and protect rights is central to the Democratic vision for the architecture of our government.

Constitutional Themes Not Stressed: Right to Choose and Affirmative Action

If this theme of a unified national identity was almost thunderous in volume, Kerry and Obama played other traditional constitutional themes in extremely muted tones.

Notably absent from Kerry's and Obama's speeches was the usual rallying cry of Roe v. Wade and a woman's right to choose. Although no one doubts where the Democrats stand on the abortion issue, neither speaker particularly stressed (as might have been expected, given the close division on the current Supreme Court on abortion issues) the need to elect Kerry to prevent President Bush from appointing new, anti-Roe Supreme Court justices.

Doubtless, Kerry would indeed appoint pro-Roe, or at least pro-precedent, Justices; but Kerry and Obama did not feel the need to reiterate the point. Rightly so, since strongly pro-choice voters will probably vote for Kerry anyway, and are well aware of his stance. Courting the middle means paying attention to swing voters' issues - not core constituency issues, especially when the core constituency is already well versed in a longtime Senator's position on these issues.

Also absent from Kerry's and Obama's speeches was any significant reference to affirmative action -- or even to "leveling the playing field" or "genuine equal opportunity" or any of the other code phrases for race-based preferences designed to remedy the legacy of Jim Crow and other forms of discrimination. While support for such programs is deeply ingrained in the Democratic Party, at this convention, Obama invoked the need for black self-help, as much the need for additional outside assistance. He did so not only through his words, but through his presence: This former Harvard Law Review editor standout is a shining star.

An Emphasis on Equality, But a More Communitarian Vision of That Ideal

Of course, equality - for blacks, women, gays, Arab-Americans, Latinos, Asians, and everyone else - was still a major theme for the Democrats. It thus assumed a place of prime importance in both the Kerry and Obama addresses.

But generally speaking, the conception of equality that Kerry and Obama advanced seemed subtly but importantly different from past iterations. In their speeches, Kerry and Obama advanced what might best be described as a "communitarian" (instead of "rights-based") view of equality.

Specifically, in talking about equality, they did not harp on the right of separate groups within society to claim either equal status, or remedies for past injustices. Instead, they talked in terms of universal human dignity and the interconnectedness of all of us. In the view of Kerry's and Obama's speeches, we should cherish equality not so much because we all have a right to it, but because we diminish ourselves - each and every one of us -- when we deny equality to others.

For example, Obama referred to his parents' choice to give him an African name because they believed it would not cause discrimination. In so doing, he sent the message that he and his parents believe and hope that Americans will treat each other respectfully - as equals - looking beyond creed, color, gender, and other markers that have drawn prejudice. He was saying, implicitly: There is no need to hide who you are, because America will embrace you anyway, no matter who you are.

If ideas can have real power (and I think they can), this one does. By universalizing the harms of discrimination and bigotry (as well as poverty and other social ills), this conception makes the battle a shared battle - a joint project of all on behalf of all - instead of one that pits one group against another. This project is about hope and belief that people can transcend prejudice - not about a vision of an adversarial society where groups fight each other to gain advantage.

A View of an Equality for the Future - and an Ever More Racially-Mixed America

The communitarian view of equality is also very forward-looking. By implication, at least, it reflects emerging demographic trends in American society -- as well as the real (if incomplete) strides that the country has made towards greater equality.

The rights-based view of equality that the Democrats de-emphasized is premised on racial, ethnic, or religious separateness, and on the struggle of each distinct group for equal status in society. By contrast, the communitarian view anticipates that such racial, ethnic, and religious distinctions are gradually fading - and that someday old notions of black, white, brown, and red may yield to a single mixed American identity. (Obama's mixed heritage, of course, stands as living proof.)

Re-Embracing the Declaration of Independence's Language of Equality

In short, it appears that Kerry, Obama, and the Democrats, in the way they have started talking about constitutional premises, are inching towards new approaches to old ideals, and hoping to fight for old goals on different grounds.

Before last week, who could have imagined a Democratic keynote speaker, much less an African-American one, quoting the "all men are created equal" line from the Declaration of Independence? In the past, such leaders almost certainly would have shunned the Declaration because though its words ring out through history, in reality its mandate of equality excluded everyone but white men.

Yet Obama featured the Declaration, and his message was clear: If we can move past old divisions, we can take the best of the past and revise it for the future -- together, as Americans.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More