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Democracy Demands Wisdom

Attorney Andrew Cohen analyzes legal issues for CBS News and

First, Sarah Palin couldn't name a single United States Supreme Court decision with which she disagreed. During that same interview, she showed a frightening lack of understanding about the nature of the Bill of Rights in the framework of our Constitution. Next, the Republican vice-presidential candidate declared that the Vice President "runs" the United States Senate. And now she's wondering aloud whether the media violate the First Amendment - and her First Amendment rights - when they criticize campaign strategy.

These flat-out-incorrect, borderline bizarre assertions would likely get Gov. Palin run out of any self-respecting law school or political science department in the country. And they are part of the reason why a growing number of Americans - the figure was 59 percent in the last CBS News/New York Times poll - believe she is not prepared to be president. What is astonishing about that figure, however, is not that it's large and getting larger; it's that roughly four out of 10 Americans apparently still believe that she is qualified to take over the executive branch should something happen to 72-year-old John McCain.

If, as the old saying goes, democracy demands wisdom, than what does this 40 percent figure say about the state of our democracy (and the state of our historical, legal and political wisdom) as the 2008 campaign winds to a close? Do people not understand the reasons why Palin's legal conclusions are so objectively wrong? Do they understand but not care? Do they understand, and care, but feel that they'd rather have her in office anyway? I can't answer those questions - no one can. But I can humbly note here why it is profoundly disturbing that any national candidate for elected office would know so little basic information about such vital topics as the Constitution, the separation of powers, and the Bill of Rights.

Let's start with the Supreme Court questions. One month ago, Katie Couric asked Gov. Palin: "Do you think there's an inherent right to privacy in the Constitution?" Now, you should know that some conservative legal scholars have already answered this question with a "no," arguing that the "right to privacy" is not specifically contained in the language of the Constitution or the Bill of Rights. These folks generally have tended to excoriate the late Supreme Court Justice William O. Douglas, who in a 1971 case about contraceptives somehow found "emanations" of a privacy right within the "pneumbras" of other parts of the Constitution.

Palin did not mention any of that and I don't blame her. It's pretty dense legal stuff (even though criticizing Douglas' overreach might just be the best legal argument anti-abortion activists have). Instead, Palin answered: "I do. Yeah, I do" and then added in the context of the abortion case, Roe v. Wade, that she believes "that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that."

I don't know what that means. But Palin got a chance to clarify when Couric then asked her to name a Supreme Court decision with which Palin disagrees. Palin answered: "Well, let's see. There's, of course in the great history of America there have been rulings, that's never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …

Couric tried again: "Can you think of any?" Palin responded: "Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today." You follow? Good, because I couldn't. This is the sort of gibberish from Palin that has made Saturday Night Live's Tina Fey even more famous than she was before.

Now, it's bad enough that a candidate for vice president of the United States couldn't name Plessy v. Ferguson, the case which ratified the odious "separate but equal" doctrine under the law, or the Dred Scott case, which stamped blacks as property and not people, or any of the Depression-era cases which blocked child-labor laws and so forth. Most decent high school students could name you at least one of those cases. Heck, even most prime-time television viewers could name you the "Miranda" case about the right to remain silent.

Worse, however, is Palin's lack of understanding of the Bill of Rights as a bulwark against the tyranny of the majority. The drafters of the Bill of Rights included its individual protections because they were fearful of local prejudices and injustices. This explains why the people of Wasilla, Alaska, for example, cannot simply vote to execute anyone they believe is a witch. That vital distinction is our laws seems foreign to Palin. If she understands it she has yet to communicate it to the public.

The same grassroots ignorance arose again a few weeks ago when Palin told a group of school kids that the vice president "runs" the Senate. This is flat-out wrong and a perversion of the concept of separation of powers. Even Lyndon Johnson, one of the most influential Senators in history, essentially got run out of the Senate when he became John F. Kennedy's second-in-command. And, contrary to Palin's latest error, the First Amendment is designed to preclude the government from enacting laws that infringe upon the rights of citizens to speak freely. It is not designed to protect government officials from what they perceive to be unfair criticism.

I believe that Palin made these silly statements because she truly does not know any better - I guess five different colleges in six years, ending with the University of Idaho, doesn't buy you as much as it used to - and because her handlers couldn't even conceive in their darkest, most skeptical moments that they would have to give her a high school-level briefing about basic constitutional concepts. This is a credit to them and a shame to her. Just as it is a credit to the 59 percent of you who apparently have judged Palin for her lack of coherence about the law - and a shame to the rest who apparently are quite comfortable defining down into parody the litmus test for high public office. You want good governance? Elect smart people. Democracy demands wisdom not just from the elected but from the electorate.

By Andrew Cohen

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