Senator Sheldon Whitehouse (D-RI) delivered the Brennan Center for Justice’s Second Annual Living Constitution Lecture to a packed crowd in Greenberg Lounge at New York University School of Law on Friday, November 20th. After a welcoming reception that featured the cuisine and libations of Rhode Island, Brennan Center Executive Director Michael Waldman introduced the pro-democracy evening. Katherine vanden Heuvel, editor-in-chief of the Nation magazine, introduced Senator Whitehouse and moderated questions and answers after his remarks. 

The Center’s Living Constitution Project brings together thinkers and policymakers to further a progressive interpretation of the Constitution. Senator Whitehouse, a member of the Judiciary and Intelligence committees, started his speech by noting that the Constitution is “a beacon of light” to citizens of the world and that, to protect its great principles, there must be respect for the rule of law and procedures “well down” the ranks of executive branch officials and the lawyers who interpret and enforce our laws. He pointed to the “litter of mischief” that resulted from torture memos written by lawyers in the Office of Legal Counsel during the last Bush Administration as a consequence of a turn away from a proper understanding of the principles that have made us strong and secure as a nation. 

The Senator warned that the Constitution, the foundation of our democracy at home, faces grave threats in the form of widespread efforts to meddle with access to the ballot box by engaging in “electioneering games that trick voters into not participating.” Another looming threat is the pending Supreme Court decision in Citizens United, which might unleash corporations from the bounds of government by allowing corporations to tap their great accumulations of wealth to influence elections. In a lighter moment, he suggested that the only way to resolve this might be to muster a Constitutional amendment providing that only human beings can participate in the political process. 

The Senator’s third concern springs from threats to the civil justice system. He argued that corporations have waged a successful war on our civil justice system and have won battles for mandatory arbitration systems and strict interpretations of statutes of limitations. The Constitution mandates trial by jury no less than three times, but in recent years we have witnessed persistent and successful efforts to erode and deride this right. 

Finally, the Senator expressed concern for the promise of economic well-being that is embodied in the Constitution. He argued that the framers had a simple goal: to allow Americans to live freely and without government interference; but, for the past decade, progress on the economic front has not kept pace with the Constitution’s equally important promise of equality and justice. Economic disparities—widened by laws including those that allow reduced capital gains tax treatment of carried interest by hedge fund managers (15 percent rather than 36 percent if deemed ordinary income)—erode this promise. And allowing executive compensation to be “taken” by the government under its TARP program without due process is a dangerous precedent, no matter how unsympathetic well-paid financial industry executives might seem at the moment.

Posted November 25, 2009