Word is spreading across some conservative blogs about Obama's supposed disdain for the Constitution, and his desire for a radical, activist Supreme Court. This is based on a finely snippeted 4-minute clip of a 60-minute radio interview dating back to 2001. In the doctored clip, you hear Obama -- a constitutional law professor at the time -- discussing the civil rights movement, its ill-advised, court-focused attempt, and the decisions of the Warren Court. On the screen, in big, bold, yellow lettering, you see the clip editor's comments and characterizations of his statements, which have been robbed of their constitutional and judicial context.
This is blatantly misleading. Even FOX News had the guts to call out McCain on his deliberate attempt to deceive the electorate:
"It's always more interesting to hear what people have to say
in these unscripted moments," McCain told a rally in Dayton, Ohio,
alluding to Obama's now well-known exchange in Ohio with Joe the
Plumber. "And, today, we heard another moment like this from Sen.
Obama.
"In a radio interview that was revealed today, he said that,
quote, One of the tragedies of the civil rights movement is that it
didn't bring about a redistribution of wealth in our society."
Obama never said that, according to an audio file circulated
by Naked Emperor News, a Web site with many postings critical of
Obama. Fox News also posted a partial transcript of the interview.
What Obama called a tragedy was the civil rights movement's
focus on the court, rather than on "political and community
organizing activities on the ground that are able to put together
the actual coalitions of power through which you bring about
redistributive change."
Obama did not define redistributive change in the interview,
but he said one example of such change involves education, "how do
we get more money into the schools and how do we actually create
equal schools and equal educational opportunity."
I wasn't going to write about it, because I didn't think it merited serious attention. But after listening to that [indicted] jackass Tom DeLay last night on Hardball, who spewed this same, brainless crap, I felt compelled to offer an analysis. I cannot encourage you enough find the full, unedited audio version --
sans the ominous yellow text -- and actually listen. Or read an uncut transcript. Even someone who is not law-trained should recognize what he did and did not say.
What he ACTUALLY said about the civil rights movement is this:
You know, 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 a lunch counter and order and as long as I
could pay for it, I’d be okay, but the Supreme Court never entered 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 I think people tried to characterize
the Warren Court, it wasn’t that radical. It didn’t break 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, 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.
He very plainly describes the constraints in the Constitution as
"essential." Essential.
Go look it up. Hardly sounds like a call to
topple them. He is not saying the Warren Court wasn't "radical enough"
-- he is saying, simply, that they did not depart from those necessary
Constitutional restraints, and thus aren't as "radical" as they have been characterized. Also, don't be confused by the phrase "negative liberties" -- this is not a criticism of the Constitution. The Constitution is exactly that -- a limit on the power and role of the federal government. Our liberties are carved out in the negative space of what the government cannot do.
"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."
Translation?
The courts cannot "redistribute" change because they are not designed --
they are not constitutionally structured -- to do that.
"You
just look at very rare examples where, during the desegregation era,
the court was willing to, for example, order changes that cost money to
a local school district and the court was very uncomfortable with it.
It was hard to manage, hard to figure out. You start getting into all
sorts of separation of powers issues in terms of a court monitoring or
engaging in a process that essentially is administrative and takes a
lot of time."
He is not saying redistributing wealth is a task for the administrative branch. This means that the court tends to avoid
micromanaging issues that are better left to local levels of governance
which have a better sense about how to manage such issues, including
their funding. The court is not comfortable with being a bookkeeper or
an accountant.
"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 rationale for bringing about economic change through the
courts -- I think as a practical matter our institutions are poorly equipped to do it."
As
he said, any lawyer could "come up with a rationale" to use the courts
for such a purpose. That's what lawyers are trained to do -- to argue both sides. But as he reinforces throughout the interview, not
only does he think that argument shouldn't be made, he also thinks the
courts are structurally incapable of doing it anyway.
The "tragedy" of the civil rights movement, according to Obama in this
interview, was that it was too court-focused to address income
inequality -- because the court isn't structured to address those
matters. That's why the court's attention is focused not on money, but on
constitutional rights and protections. That's what it was designed to do.
To anyone who troubled
themselves to actually listen, it is very clear that Obama was making a
strong case against judicial activism -- which, frankly, should make
any true conservative very pleased to hear. Another very conservative
(and admirable!) point he makes is that the civil rights movement
completely overlooked the power of the people to organize themselves
politically and effect the kind of change they want at a grass-roots
level, rather than at the judicial level, which touches the very coreof our democratic and constitutional principles.
If you're genuinely worried about upsetting the Founders or the integrity of the Constitution,
I'd suggest taking another look at Palin's view on the powers of the
Vice President.
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