Pick Your Constitutional Poison

Obama and Romney share a disdain for civil liberties.

During the final presidential debate, the moderator asked Mitt Romney about President Obama's policy of killing suspected terrorists, including U.S. citizens, with missiles fired from unmanned aircraft. "I believe we should use any and all means necessary to take out people who pose a threat to us and our friends around the world," Romney replied. "I support that entirely." 

In other words, Romney has no qualms about trusting one man with the power to order the summary execution of anyone, anywhere in the world, whom he deems "a threat to us." This bipartisan disregard for civil liberties is the rule rather than the exception for the two major presidential candidates, who are about equally bad when it comes to respecting constitutional rights, although in somewhat different ways. 

Both candidates find certain kinds of speech intolerable. Romney's campaign has signaled that he, unlike Obama, will waste Justice Department resources on prosecuting people for pornography made by and for consenting adults. Then again, Romney supports Citizens United v. FEC, the 2010 Supreme Court decision that lifted restrictions on political speech by unions and corporations, which Obama condemns. 

Both candidates also are inconsistent in their fidelity to the First Amendment's guarantee of religious freedom. During the 2010 controversy over the so-called Ground Zero mosque, Obama defended "the right to build a place of worship and a community center on private property in Lower Manhattan," while Romney demanded "rejection of this site." By contrast, Romney defended religious liberty in this year's dispute over the Obama administration's mandate requiring Catholic institutions to provide health coverage for contraceptives. 

Although Obama and Romney both say they support the right to keep and bear arms, both have backed arbitrary, ignorance-driven bans on "assault weapons." Obama has gone further, claiming local handgun bans are consistent with the Second Amendment. 

Moving to the never-ending War on Terror, the differences between Obama and Romney are even smaller. The two candidates agree that the president may detain terrorism suspects indefinitely as well as kill them at a distance. Obama never delivered on his promise to close the symbol of that policy, the military prison at Guantanamo Bay, while Romney has said "we ought to double Guantanamo."   

Obama signed the National Defense Authorization Act of 2012, which "affirms" the legality of military detention "without trial" for people the president believes have joined or assisted Al Qaeda, the Taliban, or "associated forces." Romney says he would have signed the bill too, because "people who join Al Qaeda are not entitled to rights of due process." That formulation begs the question of how we know that terrorism suspects are in fact terrorists, which is the sort of issue due process is supposed to resolve. 

Obama and Romney, both of whom support the PATRIOT Act, likewise see eye to eye on warrantless surveillance of international communications involving people in the U.S., which Obama voted to authorize in 2008 after calling it "unconstitutional" in a 2007 Boston Globe questionnaire. Responding to the same survey, Romney, who at the time was seeking the 2008 Republican presidential nomination, dodged the question of whether the president has "inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes." 

Romney's response to that question reflects his general disdain for civil libertarian criticism of counterterrorism policies: "Our most basic civil liberty is the right to be kept alive, and the President should not hesitate to use every legal tool at his disposal to keep America safe." For Romney, who endorses "enhanced interrogation techniques," one such tool seems to be waterboarding, which he, unlike Obama (and John McCain, the GOP's 2008 presidential nominee), refuses to describe as torture. 

Back in 2008, condemning the excesses of the Bush administration, Obama sounded better on civil liberties than Romney. Except for waterboarding, however, Obama's counterterrorism policies have been essentially the same as his predecessor's, but with more extrajudicial killings. Don't get fooled again.