06/24/2008 05:12 am ET | Updated May 25, 2011

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.