Perhaps the most important and influential space on the Internet is the “front page’’ of the Drudge Report. About two weeks ago, the lead item on that page was the following (typically blazing) headline: “2001 OBAMA: TRAGEDY THAT ‘REDISTRIBUTION OF WEALTH’ NOT PURSUED BY SUPREME COURT.”
The reference is to an interview Obama did with Chicago public radio, in which he advocated “redistributive change.” He was talking about constitutional law.The following is from the Vokloh Conspiracy, an excellent (and libertarian-leaning and absolutely, positively, emphatically not pro-Democratic Party) legal- and constitutional-theory web site:
“The whole interview is worth listening to for another reason: Obama gives a very impressive performance as a constitutional scholar. I was impressed that rather than accept the rather cartoonish view that often prevails about the practical significance of Brown v. Board of Education, he knew that very few black students in the South were attending integrated schools as late as the early 1960s (almost a decade after Brown), and that it was only the threat of a cutoff of federal funds that really got desegregation moving. Being realistic about the practical effect of Brown is heresy in some circles, but Obama is correct.
Relatedly, Obama was clearly influenced by the Rosenberg/Klarman thesis that the Supreme Court rarely diverges much from social consensus, and can’t be expected to.On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.)
Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve. 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. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn’t have public backing.
The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.’’
OK, that’s a lot to take in, so to summarize: A person with no political affinity for Obama but a deep grounding in legal thought listens to Obama speak and comes away with: He’s a deep thinker, a constitutional originalist who opposes attempts to achieve social/political change through the courts, especially changes that diverge from the social consensus, which is something the courts can’t and shouldn’t do, and that political action is therefore more effective and appropriate than litigation.
(To digress for a moment, think of what this portends for the President Obama is likely to be in terms of issues like abortion, gay marriage, affirmative action, etc.)
And Matt Drudge comes away from the same interview with: SEE? HE REALLY IS A SOCIALIST! HERE’S THE PROOF!!!
Either Drudge is an idiot (not likely) or he was being deliberately deceptive (likely).
On the other hand, that’s one anti-Obama piece (Drudge’s) against two “pro”-Obamas (Vokloh’s and the one you’re reading now). Drudge, of course, has several hundred thousand times the audience of VC and BPR combined, but still…
See, the media really is in the tank for this guy.
