My new article “Obama’s Constitutional Legacy,” is now available on SSRN. The article is part of a Drake Law Review symposium on President Obama’s legacy for constitutional law. My contribution provides an early assessment of some key aspects of that legacy, though I readily admit that it may be too early to reach any definitive conclusions. Here is the abstract:
President Obama leaves behind a mixed legacy on constitutional issues — one that is likely to remain controversial for a long time to come. Its most dangerous element may be the precedents he set for unilateral presidential initiation of war. More positively, the President played an important role in the establishment of a constitutional right to same-sex marriage, and his Administration’s policies unintentionally led to litigation that resulted in stronger judicial protection for federalism, property rights, and religious liberties. Obama’s judicial appointments are notable for their impressive professional qualifications and strong support for liberal judicial ideology. The long-term constitutional impact of the Obama presidency remains to be seen.
It will be interesting to see how well this and other early assessments of Obama’s constitutional legacy hold up over time. It could be that his tenure will seem very different ten or twenty years from now than it does today. In addition, as I note in the article, it is difficult to be objective about Obama because so many of his policies are still flashpoints of political and ideological conflict. Perhaps not enough time has passed for us to put the Obama administration in proper historical perspective. Putting things in perspective may be even more difficult for those commentators (myself included) who were actively involved in some of the constitutional disputes of the Obama era (I briefly discuss the nature of my involvement in the article).
Nonetheless, there is still value to engaging in early assessments of Obama’s impact on constitutional law. Precisely because many of the issues in question are still live ones, we need to understand them as well as we can in order to handle them better going forward.