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More Common Sense On The Supposed Obama “Bombshell” Video

by @ 5:45 pm on October 27, 2008. Filed under 2008 Election, Barack Obama, Politics, Supreme Court, U.S. Constitution

Ann Althouse comments on the controversy that erupted today over a 2001 video in which Barack Obama discussed the Supreme Court and the Constitution:

If this alarmed you, chances are, you are not a law professor. 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.

Althouse isn’t alone in this assestment, either. Two posts over at The Volokh Conspiracy make much the same point.

First, Orin Kerr points out that Obama’s comments aren’t as clear-cut as some have made them out to be:

Based on the audio posted, however, I find it hard to identify Obama’s normative take. When Obama says that he’s “not optimistic” about using the courts for major economic reform, and when he points out the practical and institutional problems of doing so, it’s not entirely clear whether he is (a) gently telling the caller why the courts won’t and shouldn’t do such things; (b) noting the difficulties of using the courts to engage in economic reform but not intending to express a normative view; or (c) suggesting that he would have wanted the Warren Court to have tried to take on such a project.

My best sense is that Obama was intending (a), as his point seems to be that the 60s reformers were too court-focused. But at the very least, it’s not at all clear that Obama had (c) in mind.

And, second, David Bernstein says Obama pretty much got it right:

On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.) Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve.

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.

Quite honestly, and as I noted earlier today, I don’t think it takes a law professor, lawyer, or Constitutional scholar to see that what Althouse, Bernstein, and Kerr, are saying here is absolutely correct and that those pundits who have attempted to characterize this as anything more than an academic discussion of the role of the Supreme Court versus the role of the legislature are either being dishonest or they just don’t know what they’re talking about.

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