A radio interview Barack Obama gave in 2001, as a state senator, is now attracting a lot of attention on the blogosphere, though, strangely enough, I can't seem to find a reference to it on the New York Times election news page. The transcript is available here, and you can hear the interview on YouTube. Here is the most interesting passage:
OBAMA: If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I'd be okay.
But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it's been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can't do to you, it says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn't shifted.
One of the I think tragedies of the civil rights movement was because the civil rights movement became so court focused, I think that 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 coalitions of power through which you bring about redistributed change and in some ways we still suffer from that.
Now this is indeed much more revealing than anything Barack Obama has said since he started running for President. He recognizes, with unusual honesty for a liberal, that the constitution he would prefer is not the Constitution we have.
The Constitution that the Founders bequeathed to us establishes rights against the government. Government cannot abridge freedom of speech or of the press, freedom of assembly or free exercise of religion for example. The Constitution makes it clear that we cannot be denied the right to vote, or equal protection in courts, on grounds of race, creed, color, etc. But it does not require government to guarantee any basic economic necessities or comforts. There is no right to medical care, decent housing, or a minimum income in the Constitution of the United States.
It would be hard not to suspect that Obama is a little bit sorry that the Warren Court did not:
break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it's been interpreted
But the interview goes on. Obama responds to a caller:
KAREN: Hi. The gentleman made the point that the Warren court wasn't terribly radical with economic changes. My question is, is it too late for that kind of reparative work economically and is that that the appropriate place for reparative economic work to take place – the court – or would it be legislation at this point?
OBAMA: Maybe I'm showing my bias here as a legislator as well as a law professor, but I'm not optimistic about bringing about major redistributive change through the courts. The institution just isn't structured that way.
You just look at very rare examples during the desegregation era the court was willing to for example order changes that cost money to a local school district. The court was very uncomfortable with it. It was very hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time.
The court's just not very good at it and politically it's very hard to legitimize opinions from the court in that regard. So I think that although you can craft theoretical justifications for it legally. Any three of us sitting here could come up with a rational for bringing about economic change through the courts.
I find myself agreeing with Professor Obama on all these points. The courts are very poor instruments for social engineering. Of course Obama clearly wants to "remedy the defects" of the Constitution by legislating a great redistribution of income. That does make him a radical, but that is the place to get radical change if you want it. But let's stick to the courts for a moment.
If I believed for a moment that Obama was really committed to the judicial minimalism that he articulates above, and that he would stand fast in that commitment against the enormous weight of the American Left, which thinks that the courts should pick out our clothes every morning, I would be half-inclined to vote for him.
But I don't believe it. I see no evidence that Obama has ever stood up to his party or the Reverend Wrights and Bill Ayers he has been surrounded with. President Obama, I predict, will search out Supreme Court and other court nominees whose constitution guarantees health care, a two bedroom apartment, and a place on the high school volleyball team. That is what the people around him will tell him to do, and he has always done it.
Almost all Americans believe in political equality and in equality of opportunity. We don't, by and large, believe in the kind of equality that guarantees to everyone a house or an income regardless of how that person behaves. That is one of the things that makes America different, and better, than Europe. The passages above are the first evidence I have seen that Obama is intelligent and well informed. But it still looks to me like he wants to make America more like France. That is not progress.
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