Tuesday, October 28, 2008

Redistribution and the Constitution

A YouTube video featuring clips from a 2001 Barack Obama interview is making the rounds. You can view it here. This video is about four minutes long and concludes with the clip of Obama talking to Joe the Plumber about spreading the wealth. I’ll write later about some of the claims that others have made with regard to what Obama’s comments mean but in this post I want to analyze what Obama does and does not say in this interview.

The four minutes in the YouTube video are pulled from an interview that is much longer: 53 minutes and 22 seconds. This interview took place on January 18, 2001. It was entitled, “The Court and Civil Rights” and was a segment of a program called “Odyssey” on WBEZ, a public radio station in Chicago. The interview was hosted by Gretchen Helfrich and her guests were:

Susan Bandes – Professor of law at DePaul University and the editor of the book, “The Passions of Law”
Dennis Hutchinson – The William Rainey Harper professor in the college, senior lecturer in the law school and editor of the Supreme Court Review at the University of Chicago
Barack Obama – Illinois State Senator from 13th district and a senior lecturer in the law school at the University of Chicago

The redistribution issues are covered in approximately the last 20 minutes of the interview. The entire interview is interesting if you have time but to evaluate what Obama is saying you can focus on the last 20 minutes. You can find the complete interview here apparently in RealAudio format.

I’ve transcribed much of those last 20 minutes below so if you want to read the actual interview before I discuss it, just page down until you see “Partial Transcript” then come back here for my analysis.

Let me talk first about what Obama does not say. First, despite claims to the contrary, it is crystal clear that Obama is not suggesting the United States Supreme Court can or should be the vehicle for redistributing wealth in the United States. On the contrary he explicitly rejects the Court as such a vehicle partly because he feels the task is beyond its capabilities, partly because it raises separation of powers issues, and partly because he recognizes the difficulty of legitimizing such action by the Court. Earlier in the interview he also discusses the fact that the Supreme Court cannot or will not get too far ahead of the general social consensus and this may enter into his determination as well. Obama explicitly regrets that the civil rights movement focused so heavily on the Supreme Court (or possibly courts in general) that it gave short shrift to political and organizational activities that offered a hope of effecting redistributive change in a way litigation did not.

Obama is a little fuzzier on the issue of whether State Supreme Courts can be effective in this regard and speaks about how San Antonio v Rodriguez seems to have resulted in issues of redistribution and wealth being litigated at the State level with mixed results. Nonetheless he certainly does not make an argument that litigation at the State level is an appropriate or desirable approach to achieving redistribution of wealth.

Second, Obama does not think the redistribution of wealth is an “administrative task”. He speaks of administrative issues as part of the separation of powers issues you run into if you attempt to use the Court to achieve wealth redistribution.

On the other hand, I believe the interview does make clear that Obama considers the redistribution of wealth to be a desirable goal and seems to consider such redistribution a component of - or possibly a precursor to - “more basic issues such as political and economic justice”. I know that this is not exactly news - see Joe the Plumber - but the focus in this interview is subtly different. In speaking with Joe the Plumber, Obama said:

It’s not that I want to punish your success, I just want to make sure that everybody who is behind you, that they’ve got a chance for success too. I think that when you spread the wealth around, it’s good for everybody.

In that formulation, redistribution of wealth is to help less successful people become more successful. This could be interpreted as a carelessly rendered version of George Will’s description of conservatives: they believe in equality of opportunity. That is, Obama can argue he is redistributing wealth to help the less wealthy achieve more wealth themselves through, for example, a better education financed through more tax dollars.

Obama’s views in the January 2001 interview are somewhat different. He does speak of the redistribution ramifications of truly implementing Brown v Board of Education and that could again be interpreted as using more tax dollars to achieve better education to in turn help the less wealthy achieve greater wealth. However, he also speaks of the Supreme Court “invest[ing] formal rights in previously dispossessed peoples” but not “venturing into the issues of redistribution of wealth and more basic issues such as political and economic justice”; about the need to “put together the actual coalitions of power through which you bring about redistributive change”; about the fact that he is “not optimistic about bringing about major redistributive change through the courts”. (That word “major” really bothers me.) This seems to lean more toward the idea of redistribution of wealth as a good thing in and or itself rather than as a necessary condition for - or a side-effect of - other specific policies like equalizing educational opportunity. In this interview, Obama seems more like George Will’s description of liberals: they believe in equality of outcome.

Is this a hairsplitting difference? I don’t think so. For example, in writing about the YouTube video (not the interview itself), Ann Althouse says:

Now, there remains the question of how much he would want the legislative branch to do in the name of economic justice, and obviously, the phrase "redistribution of the wealth" gets people going. But that's the same old question we've been talking about for months. [snip]

But we don't know how much, so we're back to where we were before we listened to this clip. Obama favors some degree of progressive taxation and some programs to benefit people in lower income groups and so forth ... as do the great majority of Americans, including John McCain.

I favor progressive taxation but not because I explicitly want to redistribute wealth. Rather I believe that, for example, a 10% tax rate imposed on someone making $15,000 per year is far more of a burden than a 10% tax rate imposed on someone making $150,000 per year and so the person making more can afford to pay a greater percentage of his income in taxes with less pain. The effect may be partially to redistribute wealth but my rationale for a progressive tax rate is not redistribution of wealth. (I suppose you could characterize it as a type of “economic justice” but it has nothing to do with a civil rights aspect of such justice. Although not at all religious, I’ve always found the Parable of the Widow’s Mite compelling.)

Similarly, I am not willing to let old people starve or lack for medical care so I support Social Security and Medicare. I am not willing to let poor people - especially poor children - live on the streets or go hungry or do without health care so I support food stamps, some type of income assistance, and Medicaid. I believe the country as a whole benefits when everyone who is qualified can get a college education so I support government assistance to students. All of those policies require some redistribution of wealth but I’m willing to accept that redistribution in order to achieve specific goals, whether moral or practical. That is far different from pursuing a goal of redistribution of wealth for its own sake, which is what Obama seems to be advocating in the January 2001 interview.

Is Obama advocating a strictly racial redistribution of wealth? After all, this discussion is taking place within the context of the civil rights movement and Obama segues into wealth redistribution and social and economic justice by talking about what the Warren Court did not do in its expansion of those rights. This question is hard to answer because it is so difficult to disentangle the 2001 Obama the Constitutional lawyer from the 2008 Obama the candidate. I believe that if I had listened to this interview in 2001 I would have first thought Obama was talking about transferring wealth to improve educational opportunities for African-American children but by the end of the interview would have moved to thinking he was proposing some type of reparations for African-Americans. However, I do not believe the 2008 Obama the candidate thinks of wealth redistribution strictly along racial lines. Certainly his tax plan is targeted solely by income and has no racial component. He advocates the redistribution from the wealthy of every race and ethnicity to the less wealthy of every race and ethnicity. You may oppose his plan but you must give him credit for color-blindness.

In what is for me a more serious issue, the January 2001 interview raises questions about how Barack Obama views the Constitution. Certainly the views he expresses in this interview can be interpreted as a conviction that it is desirable to “break free from the essential constraints that were placed by the founding fathers in the Constitution ... that generally the Constitution is a charter of negative liberties”. However, it is also possible to argue he was speaking of what the Warren Court did - interpreting the Constitution as it had always been interpreted - rather than of what he wishes it had done or wishes the current Court would do.

I would probably be less concerned about this issue if I had not listened to another interview Obama did with WBEZ on September 6, 2001, where the discussion was about “Slavery and the Constitution”. The remarks that concern me begin about 45 minutes into the interview. After Richard John, one of the other guests on the show, talks about his view of the Declaration of Independence and the Constitution, the host (Gretchen Helfrich again) asks Barack Obama what his views are on those documents.

Obama: I think it’s a remarkable document.

Helfrich: Which one?

Obama: The original Constitution as well as the Civil War amendments but I think it is an imperfect document and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time. African-Americans were not, first of all they weren’t African-Americans. The Africans of the time were not considered a part of the polity that was of concern to the Framers. I think that as Richard said it was a nagging problem in the same way that today we might think of environmental issues and some other problems where you have to balance cost benefits as opposed to seeing it as a moral problem involving persons of moral worth. And in that sense I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day and that the Framers had that same blind spot. I don’t think the two views are contradictory: to say that it was a remarkable political document that paved the way for where we are now and to say that it reflected the fundamental flaw of this country that continues to this day.

I can’t figure out what this means and perhaps only another Constitutional lawyer could. I certainly understand that the Constitution's original treatment of people of African ancestry living in what became the United States was a moral problem but I’m uncertain of the leap from there to environmental issues. What exactly is the “enormous blind spot”, “the fundamental flaw” in this culture and country that Obama sees so clearly? I very much wish someone would sit down with Obama, read his comments to him, and ask him to expound on them.

In summary, the January 2001 interview is not the redistribution bombshell some pundits believe it to be but it does put a different slant on Obama’s “spread the wealth” argument, making it seem more like a long-standing and freestanding goal and less like a well-within-the-mainstream variation on the sort of redistribution Americans find acceptable in order to implement desirable policies. In particular his apparent (although probably deniable) desire to “[bring] about major redistributive change” (emphasis mine) is troublesome and in the right hands (about which I’ll write in that later post) could be political dynamite.

The Constitutional concerns raised by the January 2001 interview and exacerbated by the snippet from the September 2001 interview are far more serious. I would very much like to be reassured about Obama’s views on the Constitution and how he believes it should be interpreted and perhaps modified. I’ve just spent eight years with a President who does not share my understanding of the meaning, primacy, and enduring value of the United States Constitution. I’d really hate to end up with another President who hails from a different party but is nonetheless cut from the same cloth.


Partial Transcript beginning about 34 minutes into the interview

Obama: After Brown v Board of Education a major issue ends up being redistribution, how do we actually get more money in the schools and how do we create equal schools and equal educational opportunity. Well, the [Supreme] Court in a case called San Antonio v Rodriguez in the early 70’s basically slaps those kinds of claims down and says, “You know what? We as a court have no power to examine issues of redistribution and wealth inequalities with respect to schools. That’s not a race issue, that’s a wealth issue and we can’t get into this.”

Hutchinson: And the Federal Constitution doesn’t provide any warrant for intervention.

Obama: Exactly. So now but what’s interesting is a whole bunch of folks start bringing these claims in state courts under state constitutions that call for equal educational opportunity and you see state courts - with mixed results - being more responsive to it. The reason I think that’s relevant is not to say that I’m not worried about the lack of protections coming from the Supreme Court but it is to say though that you’ve got a cultural transformation that changes how states operate and how states think about the protection of individual rights in ways that didn’t exist prior to the Warren Court and that I think is an important legacy to keep in mind.

There is a brief discussion about Bush v Gore and how the Florida Supreme Court was active in a way that would be preferred by liberals and so a realization that Federalism may have advantages. Then at about 38 minutes in:

Hutchinson: I think the interesting development here is the one that Barack has emphasized and that is that questions of both litigation strategy and political strategy are tending to move more back toward the states now given what the Supreme Court is doing and given Republican control over effectively both Houses of Congress. And so we’re seeing a shift in strategy and a shift in location and it’s important to keep that in mind. I think we can be too Supreme Court of the United States obsessed sometime in thinking they can deliver questions of social justice in kind of an unbroken vector from Brown v Board of Education. And my favorite example that Barack and I were talking about before we went on the air this morning is the question of welfare rights. You know this obsession with the Due Process Clause, thinking if you can just force these welfare administrators to hold face to face hearings before they cut people off from certain welfare benefits will produce more social justice, more money for deserving people, and the like. There was a decision in 1971 that mandated that and what it did of course is to mean that more money earmarked for welfare went to hearings as opposed to benefits. And then the Supreme Court changed its mind five years later and said, “Well, you don’t have to have a face to face hearing, you can just have a paper review of the record.” And the idea that somehow you could use the Due Process Clause for redistributive ends socially that would be stable I think was an astonishing assumption in the mind of litigators about what they could accomplish over time and it just didn’t last very well.

Obama: And it essentially has never happened. I think that 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 peoples, so that I would now 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 okay. But the Supreme Court never ventured into the issues of redistribution of wealth and more basic issues such as political and economic justice in this society. And 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 Warren Court interpreted it 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 it doesn’t say what the Federal government or the State government must do on your behalf, and that hasn’t shifted and one of the, I think, the tragedies of the civil rights movement was because the civil rights movement became so Court (court?) focused I think that 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 coalitions of power through which you bring about redistributive change. And in some ways we still suffer from that.

The show then took phone calls from listeners. The first two questions were from “Joe” who sparked a brief interesting discussion on the fact that the civil rights movement had a moral/religious base but at the same time there is a feeling of discomfort with religion in political issues. Obama referred to this as a “long-standing contradiction” in “the liberal community”. Then a caller named “Karen” asked a question:

Karen: The gentleman made the point that the Warren Court wasn’t terribly radical. My question is - with economic changes - my question is it too late for that kind of reparative work economically and is that the appropriate place for reparative economic work to take place?

Helfrich: You mean the Court (court)?

Karen: The courts or would it be legislation at this point?

Obama: You know 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. 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 local school districts. And the Court was very uncomfortable with it. It was hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues in terms of the Court monitoring or engaging in a process that essentially is administrative and takes a lot of time. 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, I think any three of us sitting her could come up with a rationale for bringing about economic change through the courts, I think that as a practical matter our institutions just are poorly equipped to do it.

Bandes: I don’t necessarily disagree with that but I think it also depends on, much of the time what we see the courts are doing is ratifying the status quo. And in fact the Court makes redistributive decisions or distributive decisions all the time.

Obama: Right

Bandes: Let me give you an example which is that the Court considers whether it’s okay to take a program, a Federal Medicare program, that provides compensation, that recompenses people by insurance for every medical procedure they can have except abortion and it upholds that.

Obama: Right.

Bandes: We can except abortion from that. Well, that’s a decision about what kinds of subsidies we’re willing to uphold and what we’re not.

Obama: Although typically the Court can certainly be more or less generous in interpreting actions and initiatives that are taken by the legislature. But in the example of funding of abortions or Medicare and Medicaid the Court’s not initiating those funding streams. Essentially, what the Court is saying is at some point, “Okay, this is a legitimate prohibition or this is not” and I think those are very important battles that have to be fought and they do have a distributive aspect.

A caller named “Anna”, a community organizer planning to go into labor organizing asks why community organizing was given less emphasis than litigation. Obama answers that community organizing is harder than litigation, saying “it’s difficult to mobilize change at the local level”. Then:

Helfrich: It seems to me that there is a perception abroad that legislative solutions are somehow unstable as a result of the fact that you can then take them to the Court and the Supreme Court is this sort of last word. That you can struggle and struggle and struggle and get something done, get something passed but that may not be the end of the story.

Hutchinson: Well, traditional solutions are unstable, too. Because facts can change. You’re always arguing in a binary situation, there’s always another side to the case. And much of the desegregation efforts proved how hard it was for Federal District judges to continue to superintend how many students go from one section of town to another section of town and, oh, since the demographics have changed the following year we have to look at it again one more time. That doesn’t accomplish stable social change because you always have the intervention of a not clearly predictable actor, that is, the judiciary in play.

The show wraps up with a brief discussion of the limits on the Supreme Court’s power, that it’s all based on reputation, the Court has neither the power of the purse nor the power of the sword.

No comments: