Well here’s an interesting bit of audio from 2001.
“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 as long as I could pay for it I’d be o.k. 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 its been interpreted and 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, um, because the civil rights movement became so court focused I think there was a tendancy 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.”
Now, Orin Kerr raises some legitimate questions. It is not exactly clear what Obama is advocating here. Is he merely stating fact: the Warren Court was not as radical as it has been portrayed as being? Or is he lamenting the fact that the Court “didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution?” Or is the broader question, as Michelle Malkin indicates, whether redistribution should come from the Courts or the legislature? It’s hard to tell from the audio, but this seems more like a lament about the Court’s inability or unwillingness to break free of the restraints placed on them by the Framers, and a lament about the inability of the Civil Rights movement to move beyond the Courts in pushing for societal change.
David Bernstein has the appropriate take.
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. Again, he’s channeling Rosenberg and Klarman. And this attitude on Obama’s part shouldn’t be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (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.)
All that said, there is no doubt from the interview that he supports “redistributive change,” a phrase he uses at approximately the 41.20 mark in a context that makes it clear that he is endorsing the redistribution of wealth by the government through the political process.
But I don’t think this part of the audio should be overlooked:
It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties.
Again, Obama does not necessarily say that he thinks the Court ought to have moved in a more radical direction. But based on his public career, it is difficult to escape from the conclusion that Obama does ultimately believe that the Courts need to move in a positivist direction.
Be afraid. Be very afraid.