Here the Clintons go again, using surrogates to smear opponents
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The Clinton team is at it again, casually smearing successful opponents through surrogates in the face of poor polling. Remember January 2008, when then-Sen. Barack Obama (D-Ill.) began outdrawing Hillary ClintonHillary Diane Rodham ClintonJeff Flake: Republicans 'should hold the same position' on SCOTUS vacancy as 2016 Momentum growing among Republicans for Supreme Court vote before Election Day Warning signs flash for Lindsey Graham in South Carolina MORE in South Carolina and elsewhere? On that occasion, recall, Hillary's husband and agent, Bill, sniffed that Obama's surprisingly strong showing in South Carolina was insignificant because Jesse Jackson had won there, too, in the 1980s. That was disturbing because, among other things, it lent credence to suspicions that the Clintons were simply "Republican lite." Before then, the resort to this style of campaigning had been the preserve of Republicans.

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This time, it's not Obama, but Sen. Bernie SandersBernie SandersNYT editorial board remembers Ginsburg: She 'will forever have two legacies' Two GOP governors urge Republicans to hold off on Supreme Court nominee Sanders knocks McConnell: He's going against Ginsburg's 'dying wishes' MORE (I-Vt.) who's pulling ahead of Hillary. And this time, her agent is Clinton family friend and Princeton historian Sean Wilentz. The occasion? In his celebrated speech two weeks ago at Jerry Falwell's own Liberty University — a speech that, remarkably, drew even some evangelicals now to support Sanders's bid for the presidency — Sanders noted that our nation was in some respects built upon racism. The very acknowledgment of this obvious and hardly controversial truth, Wilentz immediately complained on behalf of Hillary Clinton in a New York Times op-ed, "threatens to poison the current presidential campaign."

Surely it is such preposterous protestations themselves, along with the renewal of Clintonesque opponent-baiting through surrogates, that is the pertinent "poison" here — this and the remarkably still (still!) ongoing scourge of gratuitous police violence against innocent people of color. What is yet more remarkable about Wilentz's brief against Sanders, however, is its novel "historical logic."

Wilentz first conveniently rereads Sanders's observation as a claim about the drafting of the U.S. Constitution (which it was not), then proceeds to argue that at the time of its writing, this document, though it prohibited the federal government from interfering in slaveholders' rights to own human beings and enshrined the proposition that slaves count as 3/5 citizens for purposes of congressional districting, did not reflect racism. Why? Because some constitutional delegates sought to add even more protections of slavery to the document, but were prevented by, among others, the (slave-owning!) constitutional framer, future President James Madison.

The argument would of course be absurd even had Sanders's observation been about the constitution rather than about our full polity, warts and all. For it is akin to arguing that, e.g., Nazis weren't racist since the Nuremburg laws did not single out Japanese Germans along with Jewish Germans. What is yet stranger about Wilentz's gripe, however, is its sheer misdirection. For again, Sanders was not speaking simply of the Constitution — he was speaking of our nation, which of course includes but is much more than its 1787 Constitution.

Our nation is also its earliest origins, its laws and policies that the Constitution allowed and allows, and its broader culture and mores. These include an enduring — and until very recently, underinclusive — commitment to liberty and equal justice under law. But they also include genocide against indigenous peoples, over 200 years of slavery, the Fugitive Slave Acts, the Dred Scott decision, Jim Crow laws, the internment of Japanese-Americans in concentration camps during World War II, today's police violence and a host of additional policies, programs and permissions.

All of the above and more were cases in which we fell short of our own highest ideals, as Sanders himself eloquently articulates. We were not our best selves in those days — and, though better, we are not yet our best selves today. The appropriate response to this is, like Liberty University's evangelicals' and Sanders's, Amen, and let us do better! It is not, like the putative historian's, "fuhgeddaboudit!"

Let us hope that the Clintons and friends will do better now, too.

Hockett, a regular contributor, is Edward Cornell Professor of Law at Cornell Law School and a fellow of the Century Foundation.