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The Constitution at Constitution Hall

 

Doug Kendall
April 18, 2008
Huffington Post

 

Of the many important topics that got left on the cutting room floor last night as Charlie Gibson and George Stephanopoulos played gotcha, perhaps the most surprising victim was the Constitution itself.

After all, the debate was held at Constitution Hall, it featured two accomplished lawyers, and we are in the middle of a heated constitutional debate over the Bush administration's extravagant claims of executive power. But this topic was barely broached.

To be sure, the candidates agree on the big things about executive power and the Constitution. Guantanamo should be closed, torture should be disavowed, the president should obey the law and treaty obligations, habeas should be restored. But that leaves some interesting questions. What precisely is the next president going to do with clearly dangerous detainees who have cases that have been botched so badly by this administration that a conviction is highly unlikely in anything other than a kangaroo court? Keep them detained? Let them go? Neither answer seems at all inviting, yet these are the type of hard questions the next president will have to answer.

The candidates views on the Constitution were probed last night in any depth only once -- over the issue of guns and the Second Amendment -- and even here, the most interesting question was never asked. One of the more surprising things said by any candidate this campaign season is Barack Obama's declaration (made in response to a college campus gun massacre, no less) that he thinks the Second Amendment protects an individual's right to bear arms.

Clinton has carefully avoided this "individual right" formulation -- saying instead things like she "believes in the Second Amendment." Clinton appears to be purposely leaving herself some wiggle room on this issue, and it's not hard to figure out why. The question of whether the Amendment protects an individual right, rather than a collective right to be part of a "well regulated militia," is one of the great debates in constitutional law and it's not a hypothetical question. Right now, the Supreme Court is debating this precise question and it is expected that the Court will split along ideological lines, with the conservatives on the Court likely to support the individual rights interpretation and the liberals likely to take the collective rights position.

It would have been interesting to have heard Clinton's response to the question of whether she was trying to be slippery on this issue. It would have been fascinating to have heard Obama's response to a question about why he felt compelled to break with the liberal dogma on this question. The answers might have told us a little about how these candidates think about the document that will guide them as president and that they were celebrating last night with their presence on the stage at Constitution Hall.

It's little wonder we the people get cynical about the media sometimes.

 

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