Monday, October 27, 2008

Obama Camp Pushes Back on Economic Redistribution

Here's the audio from Barack Obama's 2001 legal argument in favor of expanding the civil rights revolution to economic redistributionism:

It turns out that Cass Sunstein, an Obama advisor and professor of law at Harvard, is leading a push-back from the Obama camp:

A top legal advisor to Barack Obama, Harvard law professor Cass Sunstein, said today that Obama's 2001 remarks on "redistributive change" -- pushed hard on the right today -- are being misinterpreted, and that he was actually articulating "conservative" legal principles, and that the then-law professor's "law-speak" was being misinterpreted.

Obama's remarks came in a long interview on civil rights and Constitutional law with two other law professors on the Chicago public radio station WBEZ in 2001. (The full transcript is here, and audio is here.) Sunstein argued that Obama is discussing redistribution in a relatively narrow legal context: The discussion in the 1970s of whether the Supreme Court would create the right to a social safety net -- to things like education and welfare. He also noted that in the interview, Obama appears to express support for the court's rejection of that line of argument, saying instead that the civil rights movement should aim for the same goals through legislative action.

"What the critics are missing is that the term 'redistribution' didn’t man in the Constitutional context equalized wealth or anything like that. It meant some positive rights, most prominently the right to education, and also the right to a lawyer," Sunstein said. "What he’s saying – this is the irony of it – he’s basically taking the side of the conservatives then and now against the liberals."
I'll tell you what: Listening to the audio, and just from my political science background, which includes teaching black politics, I can tell this is a bunch of baloney.

It's common for rights activists to argue for fulfilling the promise of "forty acres and a mule."

As for Obama's legal argument, apparently it's uncontroversial, notes
Ann Althouse:

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 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.
It may be a moderate view of the law, but it's a considerably radical view of the political-economy of rights.