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The Great Repudiator?—A Commentary by Bruce Ackerman ’67 and Gerard Magliocca ’98

The following commentary was published in The American Prospect on November 5, 2008.

The Great Repudiator?
By Bruce Ackerman ’67 and Gerard Magliocca ’98
 
Barack Obama's decisive victory reaffirms a pattern that dates back to the dawn of the Republic. Every 30 years or so, a new popular movement challenges established party identification and precipitates a reorganization of the electorate. From Jefferson to Jackson, Jackson to Lincoln, Lincoln to William Jennings Bryan, Bryan to Franklin D. Roosevelt, and FDR to Martin Luther King Jr., this cycle of change plays out with remarkable regularity. Twenty-eight years after the most recent pivotal election -- Ronald Reagan's victory in 1980 -- Obama has arrived right on schedule.

The cycle is propelled by the rising generation's changing views on fundamental questions -- the role of government in the economy, the place of equality in social life, the balance between security and liberty. Voters form views in response to a crisis and hold fast until the next shock comes along. The Reagan revolution responded to the malaise of the 1970s. Long gas lines, inflation, judicial activism, and the oppressive rigidities of communism cast doubt on the capacity of bureaucrats and judges to make life better. Reagan's first inaugural address crystallized this sentiment, insisting that "in this present crisis, government is not the solution to our problems; government is the problem."

The generation that is coming of age with President Obama draws on different experiences. September 11 convinced Americans of the renewed need for a powerful central government as did Hurricane Katrina and the recent market crash, which has transformed George W. Bush into an ironic prophet of socialism. But Obama's presidency permits Americans to move beyond irony and begin the elaboration of a new public philosophy.

If history is any guide, the new era will be shaped by great acts of presidential repudiation. Jefferson repudiated the Alien and Sedition Acts; Jackson, the Second Bank of the United States; Lincoln, slavery; but FDR 's repudiation of laissez-faire provides the closest precedent. President Obama will predictably make George W. Bush into the Herbert Hoover of our age. He will reject Bush's blind faith in free-market capitalism and lead a broad-ranging debate over the shape of a new New Deal for the 21st century. As with Roosevelt, Americans will give Obama and his liberal Congress plenty of room for creative experimentation. They don't expect miracles in regaining regulatory control over the economy or in providing near-universal health insurance. The Democrats must simply avoid a pattern of incompetence that reminds them of Bush's blundering responses to Katrina and the market crash.

There comes a point, however, where President Obama can't rely on New Deal models. While Roosevelt celebrated broad executive authority, Obama must confront the abuses of presidential power that were hallmarks of the Bush years.

Obama has already said that he will close Guantánamo and withdraw all legal opinions by the Justice Department that endorsed blatant illegalities. But these gestures will not guarantee against similar abuses after the next terrorist attack. We don't know when the next bomb will explode. But unless something is done now, future presidents will be in a position to revive Bush-era precedents to launch another devastating assault on civil liberties.

To truly repudiate this Bush legacy, Obama should build upon Congress' response to the last great period of presidential abuse under Richard Nixon. During the 1970s, Congress passed a series of framework statutes restraining the president's unilateral powers to make war, to spy in the name of national security, and to take extraordinary actions in an emergency. But as Bush proved, these statutes failed to impose effective checks and balances on the imperial presidency.

In large measure, these failures had their source in the determined opposition by the Nixon and Ford administrations to any serious statutory restraint. This slowed down the reformers' momentum, weakening key provisions in their statutory frameworks.

But this time around, the fundamental questions raised by the imperial presidency won't be obscured by a partisan fight between the branches. It will be up to Obama and the Democratic Congress to decide whether they are really serious about repudiating the abuses of the Bush years. If they content themselves with symbolic gestures, and short-term solutions, Americans will have lost a unique opportunity to take action against deep-rooted presidentialist pathologies that constitute the gravest long-term threat to the health of the republic.
 
Bruce Ackerman is a professor of law at Yale and the author of We the People. Gerard Magliocca is a professor of law at Indiana University-Indianapolis and the author of Andrew Jackson and the Constitution.