an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A few weeks back I gave a keynote address at a conference on "Popular Constitutionalism and the 2012 Election" held at Roger Williams Law School in Bristol, Rhode Island. A video of the talk, which runs about an hour, is posted below. It discusses different theories of popular and democratic constitutionalism, and explains why presidents are so important to constitutional transformation. Drawing on Stephen Skowronek's work, it also analyzes the Obama Presidency as a preemptive presidency. A preemptive president-- examples are Cleveland, Wilson, Nixon and Clinton--is one who is swimming against the tide of the current constitutional regime and the politics of the time. As Skowronek explains, preemptive presidents look "for reconstructive possibilities without clear warrant for breaking cleanly with the past." (The Politics Presidents Make, at p. 44).
Viewing Obama as a preemptive president explains two curious facts about his administration which seem to be in tension with each other and have puzzled many political commentators.
First, Obama has not been on the leading edge of constitutional change, but has largely worked within the parameters of the Reagan regime. As a result, his liberal colleagues have often been very disappointed in him, despite his major accomplishments both in foreign affairs and in domestic policy.
Second, despite his moderate tone and his often stated desire to transcend partisanship, his opponents in the Republican Party have acted as if Obama is engaged in a full-scale constitutional revolution that they believe will subvert the foundations of the American Constitution.
It is a curious fact of preemptive presidents like Nixon or Clinton that although they routinely compromise and take moderate positions that often disappoint members of their own party, their political opponents become ever more outraged at everything they do. This explains how a president like Barack Obama, widely regarded as a sell-out by many liberals, has nevertheless been viewed by his opponents as a secret Muslim, a crypto-radical, and a scheming manipulator (i.e., a "Chicago politician") who is promoting a "secular socialist agenda" that will forever destroy liberty in the United States. Obama's policy of moderation and conciliation--like that of other preemptive presidents--has only succeeded in further radicalizing his opponents, leading to an election that in some respects resembles 1972 or 1996.
Perhaps Obama will turn out to be a transformative president after all, (think Andrew Jackson's second term). Nevertheless, even if Obama sought to be a transformative president in his second term, it is possible that what Skowronek calls the thickening of political institutions has introduced so many veto points into the system--for example, the Senate and the role of money in elections--and so greatly narrowed the window for genuine change that real transformation may be difficult in our current era.