If this alarmed you, chances are, you are not a law professor. Let me tell you that, in this radio interview from 2001, Obama is making the most conventional observation about the limits of constitutional law litigation: The courts will recognize rights to formal equality, but they hesitate to enforce those rights with remedies that become too expensive or require too much judicial supervision and they resist identifying rights to economic equality. Such matters are better handled by legislatures, and courts tend to defer to legislatures for this reason.
Obama was not showing disrespect for constitutional law in any of this. More radical law professors would criticize the courts for not engaging in more expansive interpretations of the Equal Protection Clause and for failing to provide much more expensive, invasive remedies. He did not do that. He accepted the limits the courts had recognized and advised against the unfruitful pursuit of economic justice in the judicial forum. It's a political matter. That is a moderate view of law.
Now, there remains the question of how much he would want the legislative branch to do in the name of economic justice, and obviously, the phrase "redistribution of the wealth" gets people going. But that's the same old question we've been talking about for months.
By the way, Obama does make some legal mistakes in that short clip. He talks about "the Founding Fathers" imposing limitations on what the states can do to people, but he's referring to limitations that come from the post-Civil War amendments, not the founding era. And he cites the Constitution as the source of his right to be free to "sit at a lunch counter," when it took statutory law to ban race discrimination in privately owned restaurants. I'm not suggesting that was a show of ignorance. He was trying to say a lot at once, and his main point was about separation of powers -- what courts can do and what must be left to legislatures. I'm sure he would have readily corrected those glitches if asked.
ADDED: You can listen to the full hour of the show here. I haven't had time to listen yet, but I assume the full context is more favorable to Obama than the clip above, which is intended to be as inflammatory as possible.
AND: There are 2 posts up on Volokh Conspiracy about this radio clip. First, Orin Kerr says:
When Obama says that he's "not optimistic" about using the courts for major economic reform, and when he points out the practical and institutional problems of doing so, it's not entirely clear whether he is (a) gently telling the caller why the courts won't and shouldn't do such things; (b) noting the difficulties of using the courts to engage in economic reform but not intending to express a normative view; or (c) suggesting that he would have wanted the Warren Court to have tried to take on such a project.Second, David Bernstein says:
My best sense is that Obama was intending (a), as his point seems to be that the 60s reformers were too court-focused. But at the very least, it's not at all clear that Obama had (c) in mind.
... Obama gives a very impressive performance as a constitutional scholar. Even though he was holding down other jobs while teaching at Chicago, he clearly had thought a lot about constitutional history, and how social change is or is not brought about through the courts.That's a bit overstated. Obama was saying something entirely conventional that I think the average good Harvard law student would articulate.
... Being realistic about the practical effect of Brown is heresy in some circles, but Obama is correct."The Hollow Hope" -- which Bernstein refers to -- was published in 1991. Obama was speaking in 2001. I think it was a very standard observation. (Or so it appears to me from Madison, Wisconsin.)
Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he's an originalist, or otherwise endorses the Constitution as a "charter of negative liberties," though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding.He may not oppose it but he doesn't seem to be for it either. Hmm. It's like the opposite of John Kerry's I was for it before I was against it style. Obama approach is to be not for it and not against it. Clever, no? Never commit. This is how many careful lawprofs behave in pre-tenure mode.
Bernstein makes a big assertion:
[T]here is no doubt from the interview that he supports "redistributive change," a phrase he uses at approximately the 41.20 mark in a context that makes it clear that he is endorsing the redistribution of wealth by the government through the political process.But we don't know how much, so we're back to where we were before we listened to this clip. Obama favors some degree of progressive taxation and some programs to benefit people in lower income groups and so forth ... as do the great majority of Americans, including John McCain.
MORE: Drudge is linking to the video clip with the headline "2001 OBAMA: TRAGEDY THAT 'REDISTRIBUTION OF WEALTH' NOT PURSUED BY SUPREME COURT." No, no, no, no. That is absolutely misstated. Shame on Drudge! Obama said:
One of the... tragedies of the civil rights movement was, because the civil rights movement became so court-focused, I think, there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change.He's saying that civil rights activists made a tragic mistake by fighting for their cause in the judicial forum. It's part of his separation-of-powers point. Changes that involve complex economic choices need to be made in the political sphere. He never says he wishes the courts would have done more. He acknowledges the limitations of law and courts.
Let's play fair people. Words have meaning. Read carefully and don't distort.