Electing America: Obama, the Supreme Court and the American Exception

The nomination of an African-American candidate for president is a very big deal. It reminds us that there are really two distinct kinds of American exceptionalism. This phrase is often used to describe the conviction or sense that America is a unique agent in and of world history, a special nation, different from all others and endowed -- perhaps supernaturally -- with a manifest destiny. The less pleasant side of this exceptionalism has been to authorize violence in the name of that destiny. The often enough venal motives of state action are the more easily passed off as expressions of a national mission, when we see ourselves as the instrument of a divine, or a democratic, or a divinely democratic imperative. For example, I think George Bush probably means it when he says that he feels an obligation to spread democracy and liberty. That his efforts to fulfill that obligation have led to unprecedented profits for the oil industry -- in which he and his friends share -- may strike him as divine affirmation of his mission rather than its point.

The prospect of electing an African-American president underlines another sense, however, in which American difference is, well, manifest. The European press is in awe of Barack Obama not simply because he is not George Bush (though that alone certainly generates excitement), nor because America seems about to turn on the dime of its long, racist history, but because, despite its long disdain for our vulgarities, Europe must know on some level that what is happening here cannot happen there. What other first world country is going to be governed by a black man? The French love Obama, but who will emerge from the suburban banlieues of Paris to challenge for the leadership of France?

The distinction lies in the fact that America is not a nation in the way that most other countries are. Nationality and race are historically entangled in the idea of an Englishman, a Frenchman, an Italian or a German in a way that, even the best efforts of American nativism have not had time to establish here. English common law, which is largely the basis of our legal system, is explicitly based on what has been English since time immemorial. Italians can think of themselves as the descendents of Rome, Greeks of the archaic conquerors of Troy. Whether or not it is historically sustainable, the idea of nationality for most of the developed world retains a genetic component. But America really is different. We have no immemorial past. Rather than emerging retrospectively from progressively dimmer workings of history -- of the machinations of Kings and nobles, tribal migrations and conquests -- we are, whether we like it or not, children of the enlightenment. America was an idea before it was a nation on the ground. Each year we celebrate as our national day not the anniversary of a victory, the birth of a monarch or the arrival of a particular group of people on our shores, but the signing of a birth announcement composed in Philadelphia and agreed to on July 4th, 1776.

To be sure the signers of the Declaration of Independence represented the enfranchised classes of Englishmen, but they also knew the difference between a republic and a kingdom and they understood the significance of a government based on a written consititution. Writing under a pseudonym in the Boston Gazette in 1774, John Adams both asserted the English origins of the new republic and its aspiration to something different when he famously quoted the English republican theorist James Harrington's call for an "empire of laws and not of men," strategically substituting the word "government" for Harrington's "empire." We have in the last seven years seen a sustained and often successful effort to replace that government of laws with something closer to the royal prerogative against which Harrington wrote in 1656.

In this respect the Obama candidacy is not about an individual, but about reasserting the distinction of a nation, membership in which is not hereditary but elective. To think of the unlikeliness of a similarly African-British, African-French, or African-German leader is on one level to be reminded of our peculiar national history and the role of slavery within it. But on another level it is in one fell-swoop to reassert the American exception the Bush administration has most assiduously suppressed -- that in America, citizenship -- in a technical sense -- is not by genetic inheritance or collective memory, but by subscription. "We the people" sign our names to a document that attempts to spell out and bind "a more perfect union." For us, this is the difference between being a subject and a citizen, and I suspect this reassertion is what remains truly revolutionary about us.

I suspect it is the underlying prospect of a deeply willed renewal of our national subscription to the government of laws and not of men that has made the Obama candidacy so exhilarating both here and in Europe. But this exhilaration comes also because we hang now, in the interim, by a very finely spun thread. What is at stake in the coming election could not be more clearly drawn than it was in the Supreme Court's five to four affirmation of habeas corpus last week. Five to four! The next President will almost certainly choose two justices during his tenure. John McCain has already indicated that he will choose justices who resemble Roberts, Alito, Scalia, and Thomas -- that is, justices who will reverse Roe v. Wade; but such justices will also fail to uphold the real American exception: the citizens' subscription to checks and balances and to the written-out rule of law. Justice Stevens is 88 years old. May he live forever. But as we rejoice over the prospect that America will soon once again be a nation of hope in which the rule of law is re-affirmed, we need also to remember that we stand today but one vote away from the end of the line.

Comments

[belovedreborn]

Grossman has stated my position very clearly and much more eloquently than I would have. How dare this administration of King George the VI, so blatantly attempt to destroy the most important concepts of our way of life. Not just us, but the unknown number of people who have been tortured and killed with out being charged or tried, the basic right of every person in our country is constitutionally provided for to our citizens. To deny any person from any where, regardless of the charges or no charges, the most basic right of our own law is sadly and bitterly, lost on me. The acquiescence of myself, indeed , all of society, to these thugs is shameful in its least. We can not deny to any one...for any reason...the right to be charged and the right to defend themselves!!! How can ANY person believe this to be acceptable behavior?

[afed27]

It is wonderful that a black person has been chosen to be a nominee for President. The sad part about this is that the person chosen is not up to being the President of our country. His zippo record for 12 years in 2 Senates, his character, his arrogance, his lies, all disqualify him. Yet, people heard his elequent speeches [not even his words] , & his promises [ which he says are only "plans" & do not have to be kept ] and decided this was enough to vote for him. We now are left with very little choice to pick a qualified, strong person to lead our country. Obama or McCain, the devil or the deep blue sea?

[websmith]

It's very encouraging that we appear to be on the brink of electing a person who has to embrace the African American culture as his own but it's also very discouraging that he does not appear to understand the Constitution or the concept of freedom.

Congress does not have the Constitutional authority to do most of what they are doing now. Yet, we demand that they do it. When we place demands on Congress and the Senate to do things that they are not supposed to do in response to some issue, we are demanding that they take away our freedom. Our chains grow heavier with each little piece of legislation.

Every new regulation, tax, fine, or license, whether it's on us directly, the rich, services or corporations limits our ability to financially do things because we are the ones who pay every single penny no matter who it's collected from. All money comes from us.

Obama has said that he would provide another $50 billion in worthless economic stimulus. We will pay for this through inflation and interest as we will pay for the checks that are now being received. You may discover that you are not able to take that trip to Europe, get a new kitchen, or pay for your child to go the college of his/her choice. Your freedom will be limited. This is none of the government's business. Yet, we encourage them to do it.

You can pay for your freedom or your chains.

[Chis1283]

Yes, the guy who went to Harvard Law School doesn't understand the Constitution or the concept of freedom...good thing you explained it for him...

[marlin336w]

Good article but still give me a break folks....
The Supreme Court has never been the diciding factor of anything political. They are judges, who interpret laws to see if they think they are Constitutional. Not law makers. They make mistakes (see Dred Scott decision)
One other thing.
Who are the lawgivers in America? We the people are!
Government rules with our permission, supposedly anyway.
Example: If the Supreme Court said that we no longer have a Congress or House, and only a President who declares law...would we put up with that? I wouldn't. I refuse to live in a dictatorship. I would be passing out the guns and ammo. I would be leading the attack in that case. Would you be there or would you say "Yes" to any order given out by a dictator?
Despite it all, I believe America will always come out on top because of it's original lawgivers, you and me.
Obama may be a watershed moment (even if he doesn't get elected) but WE ARE THE EXEPTIONAL part of America. We voters.
Tell Jessee Jackson, Al Sharpton, Michele Obama, and Obama's preachers to quit the race baitting. If America is SO RACIST, then how did he get where he is today? Tell Obama, that us "Bitter Gun Owners who are religious and just clinging" are the same people he wants to vote for him.
Insulting voters is NOT a good campaign strategy, but I could be wrong.

[eden4barack08]

I would just like to address the very last part of your comment:

Is it wrong when a child clings to his mother for comfort? or clings to his security blanket? or his teddy bear? When did 'cling' become a bad word? We cling to that which gives us comfort! That with which we are familiar with and gives us pleasure, that which we don't want to give up!

Obama in that phrase was trying to explain how government had failed these areas where jobs had been moved overseas, and promises made by politicians had not been kept.

To deny that situations such as lack of employment and poor prospects for the future of our children do not anger and embitter people, is to prefer to bury one's head in the sand.

As for reacting to this situation by " clinging" to guns and religion? There's nothing wrong with that, unless it's spinned in a different way other than the one it was meant to be.

Hunting is a tradition passed on from generations since the birth of this country, many times it's what unites families, or groups of friends , religion, the same thing, it gives us comfort, it's familiar, it's what we turn to when we feel lost and what keeps us going.

CONT'D in part II

[eden4barack08]

PART II

A religious person looking for a job, might say a prayer everyday asking God for help in finding one, a less religious person might only go to church on sundays, one who has a family member facing terminal illness, might 'cling' to religion as one hope of cure.

On the other hand, some take a break from economic problems with recreation, such as hunting.
Again, clinging to something that brings some sort of comfort or alleviation from whatever ails at that moment, IS NOT a wrong thing.

And this is what Obama was trying to explain.NOT insulting those very voters whose problems he was seeking to understand! Ultimately, after the sensational reporting and sound bites the media create to the benefit of their ratings, one should REALLY start to think for themselves and if necessary research, to get REAL answers.

It shouldn't be hard for any logical thinking mind asking the question: would any candidate in a sane mind deliberately insult his voters?, to categorically answer ;OF COURSE NOT!!

CONT'D on part III

[eden4barack08]

Do people just not like the word 'cling'? Why?

This is the dictionary's definition­:cling·ing­, noun
–verb (used without object)
1. to adhere closely; stick to: The wet paper clings to the glass.
2. to hold tight, as by grasping or embracing; cleave: The children clung to each other in the dark.
3. to be or remain close: The child clung to her mother's side.
4. to remain attached, as to an idea, hope, memory, etc.: Despite the predictions, the candidate clung to the belief that he would be elected.
5. to cohere.
–noun
6. the act of clinging; adherence; attachment.

Not one of these definitions has a negative connotation!
Should he have used a different word? Well, in retrospect, since it's been misunderstood, I wish he would have! But obviously his intention was NEVER to insult ANYONE!

From the rest of your comment, I get the sense that this isn't REALLY what bothers you, but issues of racism, are impossible to respond to in a comment, and will never change the color of the race in question. i can only pray, that at some point in your lifetime you'll see that we are all creatures of God. But as for the "cling' issue, FACTS can change the lies!

[afed27]

When was the last time Congress voted for what we, the people , wanted? Certainly not in the last 8 years. Can the elections be rigged? I think so. In 2004, in Ohio, many Democratic voters were disenfranchised by a mess with our absentee ballots. We didn't receive them & were told they had not been received by the Election Board.We raced back home, went to the Election Board to find the office mobbed with others,& proceeded to ask for provisional ballots.They said "No".The wind-up was that after fighting for hours at the polls, we were given provisional ballots. We voted, went home, & found a message on the phone that our votes were not going to be counted. I feel for those in Michigan/Florida who had their delegates stolen by the DNC & Obama.

[wiseapple]

It is imperative that Obama select the next justices to preserve the status of SCOTUS. If McCain is allowed to appoint the judges, the high court will morph into the less flattering Supreme Court Republicans of Totally Uniform Mindset (SCROTUM). This could worsen our image around the world!

[MaureenSharkey]

"The nomination of an African-American candidate for president is a very big deal. "

That's so great that so many pundits worked toward manipulating that outcome.

I wonder when the time will be when pundits will work just as hard to get a woman as the candidate?

We had one this time, and she was the candidate with all the experience and know-how that we knew could have turned this country around.

The black man didn't get the nomination because he deserved it. He mostly got it because he mezmerised the multitudes as a preacherman.

[OriginalScreenName]

I couldn't disagree with you more. Obama most certainly deserves this nomination.

This is why Hillary supporters like yourself are so absolutely disrespectful. You want to know why you won't get respect and you don't deserve it? Because you don't give it.

FACT: Obama worked as hard as anyone to get this nomination and he won it fair and square.

Until you recognize that fact, you will never get the respect you deserve. To throw out that kind of accusation that someone did not work for what they have with no proof is extremely insulting.

[ginsburg]

I agree with you whole heartedly. As a preacherman he has a lot of charisma and between that and the media wanting him to win he did very well. What would have happened had they been as kind to Edwards or Clinton? Edwards went way out on a limb with his helath care policy and Hillary showed a mastery of details that none of the others managed. Of all she was the most policy driven of the candidates. It will be interesting to watch to coverage of the general election. I am sure Obama will have a lot more money than McCain to spend on promoting himself as he did in the primaries but what will the media do? Of course money is no guarantee that you are going to win.

[Johnjlws]

Please move on. I've been watching campaigns since Kennedy/Nixon and Clinton's was as poor as any with the possible exception of Dukakis (and he should have fired everyone before he got into that tank with that goofy helmet on). This opened the door, but Obama has run an extraordinary campaign with an uplifting message of hope and change. And he realized early on that the "status quo" and "experience" weren't driving voters; hope and change were.

I couldn't believe when Clinton allowed Obama to reel off 11 straight victories and she continued to portray herself as inevitable. She needed to capture the energy for her campaign from her concession speech, and I believe the outcome would have been different, but her campaign gave her bad advice again and again as repeatedly she tried to demonstrate how tough and ready she was. Problem was the nation has seen the product of tough and is seeking something different.

In this year, in this election Barack Obama was, and is, the most qualified and most deserving. I am part of the mesmerized multitude, have drank the Kool-Aid, or whatever condescending terms you want to ascribe to my intelligence and support of Obama, but his grasp of policies, his understanding of the national mood, his organization of his campaign and his myopic focus on his message (unlike others who were "finding their voice" every other primary) is what put him over the top. To think "pundits" were responsible is simply inaccurate.

[radmul]

This concept of America as something special is the problem. We are a group of people trying to govern ourselves nothing more. The concept of manifest destiny and shining beacon on the hill crap is the problem. Trying to say that electing an African American will mystically solve some problem is the problem. We need realism not symbolism and as long as we place symbols over facts we will fail to solve the true problems facing the people living here.

[ZaneC]

While I do agree that Obama is exceptional in most of the aspects pointed out by Mr. Grossman, he is also ordinary in many other crucial ways. His policies, though different from a Republican, are quite similar to that of a typical, centrist, Democratic politician who will not actually bring about the change this country needs. In fact, as far as I can tell, his ideaology is still right in the middle of what the elites consider acceptable.

As for Obama's candidacy not being about an individual, anyone's run for president, in my opinion, is about the individual's policies. He may be symbolic of a greater victory for the minorities of America, but symbolism without substance will not help a country with numerous substantive issues, including being on the brink of war with yet another country, already fighting two other countries, a need for truly universal healthcare, and generally more problems than I care to list here. McCain would probably be worse, though.

Of course, if America wanted to make itself really exceptional, it could elect Nader or Cynthia McKinney, but both are probably not quite "acceptable" to the elites due to their proposed policies, and one is both African-American and female.

[sytgrl]

Thank you for this article. What people don't understand is that the constitution is about the rights that we confer on the government, not the other way around. According to the founders, we are the ones that have the powers and freedoms, and it is the government who must be kept in check.

The right to bear arms is not a right granted to you by the government, it is so that you can overthrow a tyrannous government. Freedom of speech was not a freedom granted to you, but so that you have the ability to criticize the government.

That's why the latest SC decision was so startling. Without habeas corpus, all other rights are lost. If the government can hold you without reason, then you have no other rights--speech, arms, etc. This decision was not about giving illegals the right to trial (which is not even what habeas corpus means), but limiting our government when it tries to overreach its powers.

[pangaia]

This is a reply to the article, not "sytgrl"
Mr. Grossman states-- "But America really is different. We have no immemorial past." That is not true. We DO have an immemorial past. It's just that we destroyed most of it through a government sanctioned and condoned policy of genocide in the 18th and 19th centuries and now we deny both that past AND the genocide.

[DavidK08]

I may have missed something, but...

Are you talking about a past that belongs to the land that is America or the people that are America? My view would be that Americans are those who "subscribed". Not those simply on the land. I think that is what is being mentioned. Not to down play what you are referencing.

[Garioch]

This again? Tell you what when you find a European nation with a 12% population group from the African Diaspora who have lived there for a couple of centuries then start crowing about how far ahead of the game you are.
While you are it this being the case and making the argument on this does the fact that the U.S. has not had a female voted into the highest office mean that in comparison the European nations there is something malign to the aspirations of women contained in U.S. exceptionalism?
But that would be a really simplistic and ludicrous argument wouldn’t it? Making it slightly more sensible then the one you’ve just proposed.

[knighthowl]

I am sorry, but your odd sentence structure and apparent anger make your argument difficult to decipher.

You do clearly disagree with the post, but you could learn a little from the clarity of his writing.

[IAM4CLINTON]

A generic Democrat has a 15-20 point advantage in most polls against a generic Republican. If you substitute Obama and McCain as the nominees- the advantage almost disappears with Obama in some polls leading within the margin of error.
What this tells me is the unease much of America- even the Dem primary electorate by the virtual tie - has with Obama as President- NOT because of his race but his inadequacy for the job and the unsavory associations that he brings with him.

[lthuedk 1]

Do stay put.

[walk0nwalls]

Anywhere but here, why do you have to be such a buzzkill?

[Bramptonian]

IAM4CLINTON, are you still at the same spot? the 'Obama-hating' spot? I feel pity for you. It's time to move on. He's already going to be the next president of the USA so accept it and move on. Your response has no relevance to the point Mr. Grossman is trying to make but you're still so eaten up with hatred and bitterness (perhaps even bigotry) that you can't even see that. There, there, let it go. It's not healthy.

[CyrusBeaucephus]

Oh yeah--there's some bigotry on that dudes profile, although like most of the hard-working white Clinton types he will deny it--in between bitter & fact-free attacks on Obama

[knighthowl]

And I would like to know how you have determined that this is NOT because of his race, since this is in fact the only difference between Obama and a generic Democrat? Do you not recognize your own bigotry?

[marlin336w]

I would like to see your proof that Obama loses his 15 to 20 points hypothetical lead because of his race.
You have asked for the other poster to provide proof it was NOT lost because of his race.
Now you provide your proof it was lost due to race.
I am willing to read it, but I start with scepticism.
I think Obama's BIG mistakes (bitter gun owners for one), loudmouth racist preachers, Refusing to quit that church, and so forth lost him the points...and I voted for him. Race had NOTHING to do with my vote for him, it would not affect my vote against him either. If you doubt me, then explain how I am not racist if I vote against him.
Prove the only other consideration is his race to vote against him for the large majority of voters. I challenge anyone to prove people voted against him in large enough numbers to matter simply because of his race.
Good Luck. Can't be done and you know it.
By the way, Hillary claimed sexism shot her down. I challenge anyone to prove people voted against her in large enough numbers to matter simply because of her gender.
Good Luck. Can't be done and you know it.

[Chis1283]

Mr. Grossman, I appreciated your thoughtful article.

Photofarm the idea that liberal judges make law instead of letting Congress do so is a familiar refrain of conservatives...the problem with that is not that its untrue, but rather, that its incomplete. The truth of the matter is that the more conservative justices "make law" just as much as the liberal ones do...This is not necessarily illegitimate; when you are interpreting such broad phrases as "due process of law" etc. you can't help but "create law" by the very act of interpreting law. It's largely a function of the ambiguity of much Constitutional language (and that's not a slap at the Framers, most of the language is broad because it was meant to be flexible and to endure the ages). Anyways its a particularly unhelpful conservative slogan that gets trotted out to support the idea that liberal justices are anti-democ­ratic...th­ey aren't- at least not any more so than the conservative ones. In any event, the judiciary was setup to be antidemocr­atic...the­y're supposed to be isolated from the ever-changing winds of political opinion so they can make tough decisions without the stick of political reprisal hanging overhead.

[knighthowl]

Absolutely true and very well said.

[JuneHog]

Speaking as a historian, I can only say that Mr. Grossman is right on.

[Photofarm]

You have it backwards. Obama wants judges to make law instead of congress. The rulings you site are examples of judges making law, and thus creating an elite class making laws and not the people through congress.

[valkyrie607]

Your incoherent blatherings reveal nothing more than the fact that you slept through your participation in government classes during high school.

If that doesn't make any sense to you, I suggest you google the phrase "checks and balances" or perhaps "three branches of government." I'm sure it will be very enlightening.

[Photofarm]

Checks and balances, has nothing to do with the supreme court making law.

Roe vs Wade was about the Supreme Court inventing a new right that wasn't in the U.S. Constitution.

We could go on and on, but when you have rulings of 5-4, there is a huge divide from legal people about the issue. The two rulings from this year he mentioned in the article were 5-4.

[Querent]

Photofarm probably wasn't sleeping. I had some of his persuasion in my American Gov't class when I was in High School. They sat there red-faced and angry, with their fully conditioned, and therefore barely functional, minds clenched on their two or three archaic and regressive ideas, and learned only how to argue their untenable positions on the great ideas embodied in the Constitution. Not how to listen to or process the opposing arguments, mind you. Only how to argue.

[HypocrisyAlarm]

Photofarm, where did the author position the rulings (as in "The rulings you site")? Or did you mean "cite", a synonym for "quote"?

[Chillinout]

Great article, It gave me another perspective on America.

Thanks