As the two discussed whether the President had the authority to conduct warrantless wiretapping, Obama noted that the Supreme Court had never endorsed the view that a president has inherent authority to act. He also noted that the vague congressional authorization that Bush invoked may well have been barred by the earlier, and more specific, Foreign Intelligence Surveillance Act. Sunstein recalls saying at this point in the debate, “Yes, sir!”
Unlike President Bush, the business-school graduate, who delegated his legal policy-making to advisers who took radically expansive positions about executive power in his name, Obama is able to discuss constitutional issues with a precision rivaled only by our most constitutionally sophisticated president, Abraham Lincoln.
As a result, Obama is likely to articulate constitutional positions and then conform his presidential actions to them rather than take positions and then rely on lawyers to justify them.
Lawyerly caution, of course, can be an impediment to inspirational political leadership: During the primary campaign, Obama was criticized for being too nuanced and cerebral in debates with Hillary Clinton, who was praised for her boldness in answering questions about the war on terror. But doubts about Obama’s ability to inspire faded as the campaign progressed, and by the end, some were comparing his rhetorical skills to those of Lincoln.
Our greatest president, Lincoln was also a great constitutional lawyer, even though he was self-taught. But it wasn’t Lincoln’s legal precision that was the key to his greatness; it was his command of language. Lincoln had a gift for making complicated ideas accessible without simplifying them, and this helped him lead the nation during its most divisive struggle by articulating political arguments in constitutional terms that citizens of very different views could understand and accept.
Obama also seems to have this rhetorical skill, and his experience as a law professor may have helped him hone it. “Obama has a remarkable ability to frame complex ideas in a way that can appeal to broad audiences,” says Michael Gerhardt. “It’s something constitutional-law professors have to do, but Obama has taken it to an unprecedented level.”
It is now a truism that, as the presidential historian Richard Neustadt noted in 1960, presidential power is the power to persuade. Jimmy Carter’s background as a nuclear engineer and George W. Bush’s background as a business executive may have contributed to the fact that they were more interested in issuing orders than in persuading citizens who disagreed with them.
Obama’s even temperament is likely to matter more than his background as a constitutional-law professor in determining whether he can follow through on his promise to bring together red and blue America into the United States of America. Nevertheless, those of us who try to conduct constitutional conversations among students of different perspectives in the classroom will be following his progress with special interest.
At the very least, Obama has given the lie to the old saying that “those who can, do; those who can’t, teach.” It turns out that those who teach can also do a lot.