Balkinization: Obama, the Court, and "Redistribution"

Obama, the Court, and "Redistribution"

Mary L. Dudziak

Rather than focusing on actual policy differences in the waning days of this election year, the McCain campaign and its supporters are up in arms over a 2001 discussion of constitutional history on Chicago Public Radio. McCain campaign economic advisor Douglas Holtz-Eakin claimed that on the program "Barack Obama expressed his regret that the Supreme Court hadn't been more 'radical' and described as a 'tragedy' the Court's refusal to take up 'the issues of redistribution of wealth.' No wonder he wants to appoint judges that legislate from the bench."

Short excerpts of the hour-long conversation about the courts and civil rights have ricocheted around the blogosphere accompanied by claims that they are evidence that Obama supports a radical Supreme Court aimed at wealth redistribution.

In response to a query from the CNN "Truth Squad," I took a look at the transcript. It is an interesting but not particularly earth shattering discussion of Supreme Court history with Obama, University of Chicago Professor Dennis Hutchinson, and DePaul University Professor Susan Bandes. Rather than suggesting that Obama wants the courts to engage in wealth redistribution, he instead suggests that courts are not a good forum for disputes involving inequalities in public financing. Instead courts "are just poorly equipped to do it."

Here are the parts of the transcript Fox News emphasizes on its website (emphasis provided by Fox, typos in original transcript):

OBAMA
39:45 and it essentially has never happened i mean if you look at the victories and failures of the civil rights movemtn 39:48 and its litigation strategy and the court i think wehere it succeeded was to vest formal rigths in previously dispossessed peoples so that i would not have the right to vote would now be able to sit at lunch counter and as lpong as i coudl pay for it would be ok 40:10 but the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court it wasnt that radical 40;30 it didnt break free from the essential constraints that were placed by the founding fathers in the constituion at least as it has been interpreted and the warren court interpreted
it generally in the same way that the constitution is a document of negative liberties 40:43 says what the states cant do to you says what the federal govt cant do to you but it doesnt say what the federal govt or state govt mst do on your behalf and that hasnt shifted and i think one of the tragedies of the civil rights movement was that 41:01 the civil rights movement becaem so court focused i think there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that
----------------
caller (karen): 46:07 the gentlemen made the point that the warren court wasn't terribly radical with economic changes my question is is it to late for that kind of reparative work and is that the appropriate place for reparative economic work to take place
Q you mean the court
caller: the court or would it be legislation at this point
OBAMA
46:27 you know maybe i am showing my bias here as a legislator as well as a law professor but you know i am not optimistic about bringing about major redistributive change through the courts 46:43 you know the institution just isn't structured that way just look at very rare examples where during he desegregation era the court was willing to for example 46:55 order you know changes that cost money 46:59 to local school district and the court was very uncomfortable with it it was hard to manage 47:04 it was hard to figure out you start getting into all sorts of separation of powers issues 47:09 you know in terms of the court monitoring or engaging in a process that is essentially is administrative and take a lot of time the court is not very good at it and politically it is hard to legitimize opinions from the court in that regard 47:27 so i think that although you can craft theoretical justifications for it legally you know i think any three of us sitting here could come up with a rationale for bringing about economic change through the courts 47:45 i think that as a practical matte that our institutions are just poorly equipped to do it

The full program is here (click on Jan. 18 program).

What does "redistributive" mean in the context of this interview? The interview focused in part on cases that have a "redistributive" impact, in that the Court was asked to order that government resources be spent to fix a problem. That is "redistributive" if we think of federal tax dollars being shifted from one program to another. The case especially discussed is San Antonio Independent School District v. Rodriguez. The problem in the case was that the school district was spending much more money per capita on some children than on others. The plaintiffs said that that was unconstitutional, arguing that it discriminated against the poor and violated a fundamental right to education. The Supreme Court ruled against them.

Obama suggests that to solve problems like this, the legislature is a better place than the courts. His position on the courts is, in this respect, moderate and supportive of judicial restraint. Warren Court-era liberals instead wanted the Court to solve the school funding problem.

As Obama notes, the problem of inequality in school funding was so great that it was taken up by a number of state supreme courts, including the Texas Supreme Court, leading to rulings that great inequalities in funding were unlawful under state law.

Notwithstanding these developments, it’s Obama’s position, in this transcript, that on issues that affect public financing, courts "are just poorly equipped to do it."

Obama also mentions "redistribution" in discussing the civil rights movement, suggesting that "there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that."

Obama doesn’t fill in the sort of "redistributive change" he’s thinking of here, but this sentence should of course be read in the context of the larger discussion, which relates to whether the courts should be used to require the government to spend money to redress specific problems of poverty, such as unequal funding for public education. I think this helps us see that his focus is on government funds being used in a way that is fair (e.g. the Rodriguez case), and that resolve social problems like poor schools. Government funds are always directed at something. To change policies in a way that would direct more resources to the poor would be "redistributive" in that it would shift government funding in that direction.

Many believe that problems in American inner cities have never been addressed. Obama’s statement that "we still suffer from that" is consistent with the idea that difficulties faced by the poor (lack of access to jobs, quality education, health services, etc.) were not addressed during the civil rights era. This is not a very controversial position, although there are great differences of opinion about the causes of urban poverty and the policies needed to redress it.

Nothing in the interview suggests that he’s thinking of "redistribution" of income directly from one person to another.

But there is a silver lining to the brouhaha. What else would cause so many to rush to listen to a rather academic discussion of constitutional history?

Posted 7:20 PM by Mary L. Dudziak [link]

Comments:

thank you, Mary.

and here I had thought that the notorious redistribution issue was about the progressive tax structure.

but the power of the Republicans to take things out of context and keep them there is mindbogglingly.

# posted by

redwood : 10:07 AM

Isn't taxation, by its very nature, a redistribution of wealth? In fact, isn't that the point of taxation, to redistribute benefits, to purchase civilization? Taxes paid and benefits returned are never proportional. The Republican cries of "redistibution" are deeply dishonest, but how shocking is that?

# posted by

jw : 11:40 AM

What would America look like without taxes and in effect requiring individuals to address and pay for what they use, require or desire for themselves? Rather than a redistribution of wealth, fair and adequate taxation results in a distribution of civilization and in a secular sense application of Judeo-Christian principles.

# posted by

Shag from Brookline : 12:03 PM

There is also nothing from the interview to suggest that Obama was not using the term redistribution in its classic sense of stealing wealth from one group of citizens to give it to another another.

One can reasonably argue that Mr. Obama's current plans indicate that he was in fact using the term redistribution in its classic socialist sense. Mr. Obama's tax plans are redistribution in the purest form - raising taxes on a minority to finance the cutting of checks to those who do not pay taxes. Robbing Peter to pay Paul. Furthermore, in an unguarded moment with Joe the Plumber, Obama made it clear that the purpose of his tax policy is to "spread the wealth around."

This may not be a particularly radical proposition in academia, but it does make Obama a radical departure to the left in US presidential politics.

# posted by

Bart DePalma : 12:12 PM

So let me get this straight Bart: a 35% rate is Country First, but 39% (the same rate under Clinton) is socialism? And you think the "argument" that Obama is socialist passes the laugh test?

# posted by

Unknown : 12:19 PM

Ha ha, Bart is reduced to bald non sequiturs. The guy has verbal horror vacui, or as we used to say in high school, "it's like they are physically incapable of not talking."

# posted by

Eric : 12:29 PM

Reading the cited excerpts and discussion in the post, only, the sense I find is that of the historian academic addressing the development of political dialog over a span of a few decades, in cautious terms, at that. The interviewee's career in the subsequent seven years evidenced the wider grasp of the historical process in which he has participated in current times, though with connectivity to the door opening initiatives which afford easier access to the teleologic dialogs than in those referenced decades which harbored a more strident interlocution among numerous interested factions some more visionary than others proved to be. I, too, assessed at the time the mediazation of events from that epoch informed a journalistic theme of opsis, yet, as the author similarly observes, the dialog dating from the time of Barack Obama's professorship, emphasizes constitutional parameters of the history process. If Miranda was prelude, Bakke was a foreshadow of neojournalistic oversimplification of the processes a series of congresses were willing to legislate into existence for the purpose of opening doors important to revitalization of the integrity of the goals the constitution envisioned. It would be fun to delve for some now treasury secretary Paulson remarks from a similarly vintaged interview concerning the inverse representations encapsulated in the framing with the term redistribution, especially given the government's new program to buy bankshares. Apart from the facets of banks and stock issuing entities, there are ongoing court venues examining distributive processes in bankruptcies, for example. Perhaps Barack Obama in the year of the conversation quoted, 2001, was not ready to open a verbal interchange with the interviewer, concerning the structure and outcomes in bankruptcy courts at that time, perhaps too soon following the implosion of the surge to create new internet tech companies; yet, that might be a topic in which the 111th congress may show some willingness to investigate for opportunities to reset priorities to protect people currently facing difficulties with pensions, real estate ownership continuity, and similar classically more time protracted elements of personal finance. But maybe these issues remain too abstruse to address by application of an age worn concept from the radical right's days in meetings with bolsheviks.

# posted by

JohnLopresti : 12:58 PM

"In fact, isn't that the point of taxation, to redistribute benefits, to purchase civilization?"

No, that's what the people who levy them would have you believe. The point is to purchase votes.

If we were truly civilized, I like to think that extracting money from people by scarcely veiled threats of violence wouldn't play so large a part in our economy. Taxation is the price we pay for NOT being civilized.

# posted by

Brett : 1:59 PM

Apparently Brett has a solution for a nation of 300 million+ residents to function as a civilized society without taxation. Might this solution consist of voluntary contributions for infrastructure, etc, that many of the 300 million+ rely upon? Or is there some other solution for 300 million+ that would not constitute an extraction based upon threats of violence? Maybe the solution is the individual right to bear arms, with all 300 million+ armed to the teeth to prevent taxation. Presumably Brett has enough moulah and arms to protect his moulah without publicly funded police.

"To purchase votes"? Like for hospitals, schools, etc? For national defense? For national disasters?

# posted by

Shag from Brookline : 2:38 PM

If we were truly civilized, I like to think that extracting money from people by scarcely veiled threats of violence wouldn't play so large a part in our economy. Taxation is the price we pay for NOT being civilized.

There you have it, the perfect distillation of the ideology that has brought us to the brink of disaster.

I don't think any argument I could make would make an impression on this way of thinking, a love of a zero-sum society where the only motivating factor is to take as much for oneself as is possible. What a beautiful world Brett posits.

# posted by

Unknown : 3:27 PM

Neil Brooks, a Canadian law professor, wrote "Taxes are the basis of civilization" published in the Winnepeg Free Press on 12/23/05, available at:

http://osgoode.yorku.ca/media2.nsf/5457ed39bc56dbfd852571e900728656/73eef396d217f906852570eb006f8da4!OpenDocument

that details well beyond Justice Holmes' taxes as the price we pay for civilization. My initial comment referenced "fair and adequate taxation." While the power to tax may be the power to destroy, in no way have I or do I suggest that the power to tax be so employed. When I first took a tax course, there was a 90% bracket. There was also an excess profits tax to address WW II abuses by government contractors. Slowly, tax brackets were reduced. Now, all of a sudden, even to the shock and surprise of Alan Greenspan, we have a serious financial crisis that if not properly addressed will be passed onto our children, grandchildren and great-grandchildren. Can a taxless society address this crisis? Sometimes taxes are too high. Sometimes they are too low. Let's wish that like Goldilocks we can have taxes that are just right. But can we continue with guns, butter and tax cuts?

# posted by

Shag from Brookline : 5:19 PM

Bart said, "...to finance those who do not pay taxes". I am always taken aback that conservatives have such little problem with sales taxes (which virtually everyone pays) to the point that they say there are people who pay no taxes. Sales taxes, perhaps because they're regressive, just don't count. Perhaps if the income tax was a flat regressive tax you wouldn't hear a peep from conservatives about it. In any case, Bart, sales taxes are taxes so your statement applies to virtually no one. Even totally dysfunctional, schizophrenic patients (the "Paul" in Bart's world who we steal from the "Peter" (the extremely wealthy)so that they can food to eat among other things)) in mental hospitals buy items and pay taxes.

# posted by

Carl : 5:36 PM

If we were truly civilized, I like to think that extracting money from people by scarcely veiled threats of violence wouldn't play so large a part in our economy. Taxation is the price we pay for NOT being civilized.

As a rule, libertarians haven't grown out of their diapers. They prefer to fantasize about a "truly civilized" world where everyone behaves nicely and there isn't any need for "government" because everyone is nice and behaves nicely.

Wouldn't that be nice.

# posted by

mattski : 9:06 PM

Alan Greenspan seems to have finally grown out of his diapers, or is this being too Rand-y?

# posted by

Shag from Brookline : 9:25 PM

"There you have it, the perfect distillation of the ideology that has brought us to the brink of disaster."

We were brought to the brink of disaster by (David) Friedman style anarcho-capitalism? Somehow I don't think so.

# posted by

Brett : 5:42 AM

" ... (David) Friedman style anarcho-capitalism .... "

Is this Brett's solution for the elimination of taxes?

# posted by

Shag from Brookline : 7:01 AM

There is also nothing from the interview to suggest that Obama was not using the term redistribution in its classic sense of stealing wealth from one group of citizens to give it to another another.

That's not the classic definition of redistribution. Redistribution involves the collection and culturally-guided reallocation of goods, services, and/or tokens thereof.

One could argue that labeling any such movement a "theft" is to embrace Marxism--you might as well start picketing factories to recoup the stolen value of the workers' sold product. The point made above about 39% being the tipping point into scoialism is instructive; redistribution is a part of our society and has probably been a part of human societies for as long as there have been human societies.

# posted by

PMS_CC : 11:55 AM