Obama's State of the Union missed an opportunity to talk about the Constitution.

The law, lawyers, and the court.
Jan. 26 2011 6:20 PM

The C-Word

Why can't Obama bring himself to talk about the Constitution?

President Obama. Click image to expand.
President Barack Obama

The reviews of the State of the Union speech are in, and they are, for the most part, quietly positive. President Obama was optimistic, sober, patriotic, and reassuring. Insofar as the speech was an attempt to win back independent voters and moderate Republicans, it was surely a success. If nobody was moved to tears by the president's words, few were throwing bricks at their televisions, either.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

But for anyone who spent the last week trying to keep track of Minnesota Rep. Michele Bachmann and her hotter-than-ever love affair with the Founding Fathers—or at least the vision of them that makes her feel happiest—the most striking omission from Obama's speech last night was the Constitution. In 2010, the president opened his speech with a reference to the document. On Tuesday you had to follow him almost to the end of his speech to even hear the word invoked. When he did get around to mentioning the nation's founding document, Obama used it as a mere rhetorical foil: "We may have differences in policy," he conceded. "But we all believe in the rights enshrined in our Constitution."

Well, yeah, OK, no controversy there. Rights are nice. But by expending less energy defending the Constitution than rehashing the space race, the president missed yet another opportunity to reclaim the document for reason. The whole enterprise of constitutional interpretation still belongs to the crazy.

Maybe the president avoids talking about the Constitution for the same reasons he usually avoids talking about gun control, or abortion, or the death penalty: Because it's polarizing. And on Tuesday he clearly wanted to be conciliatory. But the Constitution is not—or shouldn't be—just another political issue. The Constitution doesn't belong to any one party or ideology. It is the country's founding document, the closest thing Americans have to the Ten Commandments, and by holding himself out as a firm constitutional atheist, Obama just opened the door to Bachmann's suggestion—repeated Tuesday—that the holy relic is safe only in her hands.

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As the screen behind her lit up with an image of the Constitution, Bachmann enthused: "We can do this. That's our hope. We will push forward. We will proclaim liberty throughout the land. And we will do so because 'We the People' will never give up on this great nation."

The Constitution is no different than a flag pin. It's a way to acknowledge that symbols matter, and powerful symbols matter a lot. I'd wager that more Americans would applaud the Constitution than science fairs and excellent teachers. So why is it so difficult to claim to be crazy in love with the Constitution and withhigh-speed rail?

By failing to address Tea Party members' persistent claim that they and only they care about "restoring" the country to its constitutional promises, Obama left viewers to wonder whether it might in fact be true that his administration has treated the document like a bathmat. It's bad enough that Bachmann's version of the Constitution and the Framers is wrongheaded and selective. More to the point, her views are incomprehensible.

The Constitution isn't a Tea Party document and—as the Constitutional Accountability Center has been at pains to point out—Americans overwhelmingly prefer Obama's version of the document to the Tea Party's. So what is it that leads the president to pass up an opportunity to tell the entire country that he loves the Constitution as much as anyone? Nobody wants to hear him offer up a wonky exposition on the standing doctrine. But a line or two about the Constitution as the guiding star/heroic ideal/solemn promise (insert soaring Obama-like metaphor here) would affirm that he's not only read the thing, but pledged his life to upholding it.

There's one other reason that Obama's failure to mention the Constitution last night seems a misstep to me: It's an easy and symbolic way for him to talk about constraint. Given that the main charge against him is that he is, in some way or another, unbound by any law or authority, what's the harm in noting that, like the hot dogs, he answers to a higher authority? Sarah Palin and Michele Bachmann have deftly appropriated constitutional language to suggest that conservatives believe in constraint while liberals want to gobble up everything they can get their hands on. In his "official" response Tuesday, Wisconsin Rep. Paul Ryan invoked the Constitution to make the same point: "We believe government's role is both vital and limited: to defend the nation from attack and provide for the common defense, to secure our borders, to protect innocent life, to uphold our laws and constitutional rights, to ensure domestic tranquility and equal opportunity, and to help provide a safety net for those who cannot provide for themselves."

By allowing conservatives to appropriate the notion that the Constitution alone stands between a power-mad federal government and a defenseless guy in a shack, Obama gave up a crucial opportunity, at a critical moment, to remind Americans that the document constrains and guides him, yes, but has also enabled all Americans to be free, healthy, prosperous, and equal.

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