Friday, October 31, 2008

Obama DID NOT Rip the Supreme Court or the Constitution

The latest distortion of Barack Obama’s positions can be found on World Net Daily. The headline says it all: “Obama rips U.S. Constitution, Faults Supreme Court for not mandating 'redistribution of wealth.'” Also jumping on board is The National Review’s Jonah Goldberg:
A just-unearthed 2001 interview with Obama on Chicago public radio reveals as much. Then a law school instructor and state legislator, Obama offered an eloquent indictment of the Warren Court for not being radical enough. While the court rightly gave blacks traditional rights, argued Obama, "the Supreme Court never ventured into the issues of redistribution of wealth." Unfortunately, according to Obama, "it didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution."
The only problem is it JUST AIN’T SO!

Obama criticized neither the Constitution nor the Supreme Court in the aforementioned interview. If anything, he criticized the civil rights movement for focusing on litigation to the exclusion of political action that might have achieved more of the movement’s goals. Here are Obama’s comments as quoted on World Net Daily:
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 invest formal rights in previously dispossessed people, so that now I would 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 OK.
But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try 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 in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.
And that hasn't shifted and one of the, I think, 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. In some ways we still suffer from that.
At this point the YouTube video of the interview carries this dishonest caption: “Yes he just said it’s a tragedy the Constitution wasn’t radically interpreted to force redistribution of wealth for African Americans.” NO HE DID NOT! There is no criticism of the Supreme Court or the Constitution there. The tragedy, according to Obama, was the failure of the civil rights movement to pursue change through the political process. He is acknowledging that the courts were not the answer to all the problems.

Obama made this point again when asked whether legislation or litigation was the appropriate way to bring about change:
The court's not very good at it. I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way. You start getting into all sorts of separation of powers issues, the court … engaging in a process that essentially is administrative.
Once again, no call for changing the courts or the Constitution.


  1. Problem? The fact that it's not true isn't a bug, it's a feature!

  2. "But, the Supreme Court never ventured into the issues of redistribution of wealth ...It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution"

    I italicized the key phrase there. The court didn't deal with "economic justice" because it allowed itself to be constrained by the Constitution.

    That gives us a telling glimpse into how he sees the court and the Constitution.

  3. That's exactly right Chris. Obama is saying that the Warren Court acted within its constitutionally mandated powers. That is why he thinks the civil rights movement should have worked through the political process rather than focusing exclusively on litigation. It tells us that he holds a normal mainstream view of the Supreme Court and the Constitution.

  4. Chris,

    I think your confusion results from the fact that you consider Obama to be a radical. Therefore, when you hear him say that the Warren Court was not radical, you assume that he intends this as a criticism. This is not the case.

    Although I did not go to the second ranked law school in the country (Harvard) and I never taught at the seventh ranked law school in the country (University of Chicago), I did graduate in the top 4% of my class from the sixty-sixth ranked law school. During my time there, I read some radical legal theory, known as “legal realism,” which held that the law is simply a tool that the white male power system uses to maintain its dominance. I can assure you that what Obama has to say in that interview ain’t that.