Posted by Brad @ 5:29 pm on October 27th 2008

Obama’s Rojasianism

We’ve made hay here before about how Obama has proffered a queer view that Supreme Courts need to be “empathetic”, whatever that means. It’s hard to get too worked up about that one way or the other, given its mushiness, so it’s worthwhile to hear the former law professor and constitutional scholar go a bit more in depth.

Drudge is touting the following a Chicago NPR interview Obama did in 2001 speaking broadly about civil rights and the constitution and its interpretation. Here is the interview in question, which is, frankly, fascinating. Drudge is touting it—and the McCain campaign have picked up on it—for a remark Obama makes about how he’s broadly in favor of “redistributionist” change. Clearly, what he means is he wants the Supreme Court to enact socialism, right? That’s the roundabout “take away” one presumes Drudge wishes to imbue, in any case.

But the interview is impressive, and insightful for the man almost certainly stacking our next Supreme Court. As conservatives often give the “conservative justices” thing as their last-ditch justification for voting for a bad Republican for President, the interview is extra interesting for the downright Rojasian position Obama takes on the function of the courts as it pertains to sweeping social or civil rights changes. I have to admit, as I did in response to the Rojas post this brings to mind, that I don’t necessarily agree with Obama here. But man, it sure is refreshing to hear a potential President with this nearly unprecedented command of and thoughtfulness towards the judiciary and ensuing constitutional issues. As always, go to the Volokh Conspiracy for the rundown:

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. 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.)

Read the rest of that Volokh post as to the “redistributionist” thing.

75 Comments »

  1. I was replying to your point 15 and putting it in the wider context of Obama’s views about ‘spreading the wealth around’ as a desirable aim (and I’m not claiming that it’s news, just that it’s really bad). He does seem to be a ‘spread the wealth around’ guy (I didn’t enter into the constitutionality debate, because I think that this is a bigger and wider issue and one on which Obama’s position is worrying, regardless of how he thinks it is best achieved). Indeed, the idea that pursuing every leftist aim through the courts is a bad one, strategically, we’d probably all agree on (as is pursuing the ideals of the Right through the courts).

    Also and in fact the reason I first made a comment, I believe that in your post 15 you mischaracterised the “widely acknowledged and accepted premise of progressive taxation at all (as a principle)”, which to my mind is ‘ability to pay’ (and not the constitutionality of doing it, which is hardly a premise in any case, but rather the absence of a prohibition).

    Comment by Adam — 10/28/2008 @ 5:02 pm

  2. “Widely acknowledged and accepted premise of progressive taxation (as a principle)” being that it is historically constitutionally permissible. Which is the point to which Obama is speaking.

    The larger point he is very clearly making is even though most everyone agrees that the courts can play a role in that, he thinks liberals rely on them too heavily as civil equalizers.

    Comment by Brad — 10/28/2008 @ 5:05 pm

  3. A premise is not the absence of a prohibition. In effect, you seem to be taking “it’s not illegal and it’s been done a fair bit” to be supporting the logic for doing it. In regards to the first, that’s silly and in regards to the second, inductive (and it still doesn’t rise to being somehow common opinion in the GOP, as you said earlier).

    Comment by Adam — 10/28/2008 @ 5:09 pm

  4. Haha. Really? Come on man.

    No, I am not saying “because it has been permissible it is good”, and for that matter neither is Obama (though presumably he does indeed think it’s good).

    I’m saying that plainly noting that progressive taxation, and in a broader view the government operating to reduce inequality, being historically (and presently) viewed as constitutionally permissible by the vast majority of scholars, lawyers, judges, and legislators (Republicans too!), is not a radical thought. It’s not some nutty thing Obama made up to support radical socialism or whateverthefuck. It’s how we presently operate, and have for 80 some odd years. It’s just a truth he’s very plainly speaking, in service of his main point, which is a conservative one.

    The irony here is what Obama is saying is what you’re saying. That just because it is viewed as okay by the courts doesn’t mean that’s the best way to go about it. He is rejecting the inductive logic of it.

    We can expand the discussion to broader questions of tax policy and the relative merits of it (which I’m only glancingly talking about, when I say the “socialism” of it is vastly, vastly overstated), but let’s at least, before doing that, put to rest the plain meaning of that interview.

    Comment by Brad — 10/28/2008 @ 5:14 pm

  5. You say in point 52:

    “Widely acknowledged and accepted premise of progressive taxation (as a principle)” being that it is historically constitutionally permissible.

    I am not sure what you mean by ‘premise’, but it’s not what I mean (which is logical support for a conclusion). You’re talking about what’s permissible (which is to a large extent what the Supreme Court is there to decide, as Obama would of course agree and, indeed, what he’s actually saying; I’m not disagreeing with Obama’s statements about permissibility or about strategy, I’m saying that his opinions on the intrinsic worth redistributionism are wrong and questioning why you aren’t bothered by it). I haven’t said that the constitutional permissibility is radical — I agree that redistributionism is constitutional, I just think that it’s stupid pinko economics — but that’s not a premise. That’s the absence of a prohibition and there are many stupid things that the Constitution would permit (as there should be). Again, if you look at what I’ve written, I haven’t questioned his constitutionality statements nor the statements about the strategic inadvisability of turning to the courts for everything; I was, rather, replying to your post 15 and what was implicit in your defence, particularly in the wider context of Obama’s support of redistributionism.

    Comment by Adam — 10/28/2008 @ 5:22 pm

  6. It is the premise he is taking in his answer to the question we have been talking about (maybe not you, but the rest of us).

    Comment by Brad — 10/28/2008 @ 5:25 pm

  7. What do you understand the word ‘premise’ to mean? Or are you seriously in favour of “we’ve always done it” (a statement I’d contest in any case when carried across to the GOP, because it’s about motive in this case, redistributionism as motive rather than the fact of progressive taxation, which can have more than one motive) as a logical justification?

    Comment by Adam — 10/28/2008 @ 5:32 pm

  8. Premise: “a proposition supporting or helping to support a conclusion.”

    More specifically, the legal definition (this is, after all, a legal context):

    3. Law.

    a. a basis, stated or assumed, on which reasoning proceeds.

    b. an earlier statement in a document

    c. (in a bill in equity) the statement of facts upon which the complaint is based.

    In this case, Obama is making a qualitative judgment between two modes of action, the legal and the political. He is saying even though the legal has been a historical route (premise, “even though”; objective truth also), he thinks the cause in question is better served by the political.

    His critics are taking out of context the bit of him saying “the legal has been a historical route” and taking it to mean “Obama supports rearranging the constitution to allow socialism” or somesuch (I’m not even sure what they’re actually asserting at this point, though is seems to have quite alarmed James for some reason).

    Comment by Brad — 10/28/2008 @ 5:36 pm

  9. My argument being that this interview isn’t really relevant to the question of whether redistributionism is, in Obama’s view, good or not (which he doesn’t speak to much, though when he does, he’s saying that the courts are not the ideal route for it).

    The critics are taking the view that it is extremely relevant and highlights some previously unknown bit of his thinking (or reveals some radical new extent of it). I am arguing against that. That was the view James, for instance, was explicitly stating.

    Comment by Brad — 10/28/2008 @ 5:39 pm

  10. I am asking you what you mean by premise in post 15, because it doesn’t seem to fit with my understanding or in your quoted definition. I haven’t argued against the statements Obama made on which this thread is based (I have queried his commitment to redistributionism, however, because that’s the wider context of his beliefs on why progressive taxation is a good thing) but rather your statements about what’s widely accepted as a premise for progressive taxation.

    Comment by Adam — 10/28/2008 @ 5:41 pm

  11. I am meaning it exactly as that first legal definition of it. He is saying “A is true (premise). But just because A is true doesn’t mean B isn’t also true, and B is in my view the better answer”.

    How do you mean premise?

    Comment by Brad — 10/28/2008 @ 5:43 pm

  12. My argument being that this interview isn’t really relevant to the question of whether redistributionism is, in Obama’s view, good or not (which he doesn’t speak to much, though when he does, he’s saying that the courts are not the ideal route for it).

    But he does — recently, in fact — say that redistribution of wealth is a Good Thing. Also, I say again that I’m querying your comment, not Obama’s views on constitutionality or strategy.

    Comment by Adam — 10/28/2008 @ 5:43 pm

  13. Which he doesn’t speak to much in the interview and quote on which this comment section is based.

    Just admit that you’re wrong and let’s give this a rest already. :)

    Comment by Brad — 10/28/2008 @ 5:45 pm

  14. I am meaning it exactly as that first legal definition of it. He is saying “A is true (premise). But just because A is true doesn’t mean B isn’t also true, and B is in my view the better answer”.

    How do you mean premise?

    As I said in point 52 in explaining what I understand by ‘premise’: “…logical support for a conclusion”. I don’t think that the fact that it’s constitutional/legal is the same as a premise (and although you could cast it as a proposition, its legality is only important if it’s not legal).

    Comment by Adam — 10/28/2008 @ 5:47 pm

  15. I bet you’re fun at cocktail parties.

    Comment by Brad — 10/28/2008 @ 5:48 pm

  16. To put it another way: if you ask people “what’s the acknowledged and accepted premise of progressive taxation as a principle”, few people are going to say “it’s legal” or “we already have it”. The second is implied in the question and the first is necessary, but they are not the “acknowledged and widely accepted premise” supporting the principle of progressive taxation.

    Comment by Adam — 10/28/2008 @ 5:52 pm

  17. I bet you’re fun at cocktail parties.

    Cocktail parties are not the meeting-place of Real America!

    Comment by Adam — 10/28/2008 @ 5:53 pm

  18. To put it another way: if you ask people “what’s the acknowledged and accepted premise of progressive taxation as a principle”, few people are going to say “it’s legal” or “we already have it”.

    Well yes, but most people won’t be on a local news program with a call-in listener asking the law professor about constitutional law and the Warren Court as it pertains to civil equality.

    Comment by Brad — 10/28/2008 @ 5:59 pm

  19. I particularly don’t think that an average Constitutional Law Professor would, on consideration, believe that those are the acknowledge and accepted premises (although it’s not a legal question in any case unless one believed, as Obama doesn’t and Volokh mentions, the idea that the Constitution mandates redistributionism).

    Comment by Adam — 10/28/2008 @ 6:01 pm

  20. He wasn’t asked about the premises of progressive taxation, he was asked about government being used to reduce inequality, as per dominant constitutional thinking. I said his premise in his answer to that question was etc. etc. etc.

    I now mostly get what you’re saying. Clearly the word “premise” threw you. But what I was talking about was that inductive error you mentioned last hour. Obama’s critics are saying his answer is somehow a radical reading-in of some kind of novel justification for redistributionism, or that Obama’s belief as expressed in that clip is some kind of new and radical socialist thing. When in fact he is calmly laying out the presently-accepted legal and constitutional justification for redistributionism, in service of his conservative point.

    Comment by Brad — 10/28/2008 @ 6:06 pm

  21. Wow, I step away for an hour and a half and there are 25 new posts. As far as I can tell, the premise of this argument has passed me by so I don’t have anything constructive to add.

    Comment by Cameron — 10/28/2008 @ 6:16 pm

  22. Another from the conservative-libertarian arena that sees this is not a big deal:
    David Bernstein at Volokh Conspiracy

    What I don’t understand is why this is surprising, or interesting enough to be headlining Drudge [UPDATE: Beyond the fact that Drudge’s headline suggests, wrongly, that Obama states that the Supreme Court should have ordered the redistribution of income; as Orin says, his views on the subject, beyond that it was an error to promote this agenda in historical context, are unclear.]. At least since the passage of the first peacetime federal income tax law about 120 years ago, redistribution of wealth has been a (maybe the) primary item on the left populist/progressive/liberal agenda, and has been implicitly accepted to some extent by all but the most libertarian Republicans as well. Barack Obama is undoubtedly liberal, and his background is in political community organizing in poor communities. Is it supposed to be a great revelation that Obama would like to see wealth more “fairly” distributed than it is currently?

    It’s true that most Americans, when asked by pollsters, think that it’s emphatically not the government’s job to redistribute wealth. But are people so stupid as to not recognize that when politicians talk about a “right to health care,” or “equalizing educational opportunities,” or “making the rich pay a fair share of taxes,” or “ensuring that all Americans have the means to go to college,” and so forth and so on, that they are advocating the redistribution of wealth? Is it okay for a politician to talk about the redistribution of wealth only so long as you don’t actually use phrases such as “redistribution” or “spreading the wealth,” in which case he suddenly becomes “socialist”? If so, then American political discourse, which I never thought to be especially elevated, is in even a worse state than I thought.

    Comment by Jack — 10/28/2008 @ 6:38 pm

  23. Wait, the what of this argument?

    Fucking Marxist.

    Comment by Brad — 10/28/2008 @ 6:38 pm

  24. He wasn’t asked about the premises of progressive taxation, he was asked about government being used to reduce inequality, as per dominant constitutional thinking. I said his premise in his answer to that question was etc. etc. etc.

    I shall point out again that it’s your comment I am questioning, not Obama’s. My questioning of Obama is about his general commitment to redistributionism, not his belief that it is legal or that pursuing it through the courts is mistaken. Whilst I think that Obama is wrong on the general issue of the desirability of redistributionism, it’s you that I think made the mistaken statement, in point 15.

    I now mostly get what you’re saying. Clearly the word “premise” threw you.

    It’s an important word.

    But what I was talking about was that inductive error you mentioned last hour.

    My inductive comment was again aimed at you, not Obama. I think that his justification/reason for favouring redistributionism is actually just common-or-garden leftism. I said:

    In effect, you seem to be taking “it’s not illegal and it’s been done a fair bit” to be supporting the logic for doing it. In regards to the first, that’s silly and in regards to the second, inductive (and it still doesn’t rise to being somehow common opinion in the GOP, as you said earlier).

    That seems to me to pretty clearly be a argument against your reasoning.

    Comment by Adam — 10/29/2008 @ 8:24 am

  25. As to James’ assertion that Obama believes the constitution to be fundamentally flawed, even the Liberty Papers can get behind that.

    For the record, here is Obama’s full quote on that one:

    I think it’s a remarkable document…

    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 at the time were not considered as 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 these days we might think of environmental issues, or some other problem 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 also reflected the fundamental flaw of this country that continues to this day.

    Doug’s remarks:

    Obama was referring, quite obviously, to those provisions of the Constitution that not only protected slavery, but enshrined it. First, there’s the infamous 3/5th’s clause in Article I, Section 2:

    Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

    The provision in Article I, Section 9 that prohibited Congress from banning the slave trade before 1808:

    The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    And, the provision in Article IV that required the return of fugitive slaves who managed to escape into non-slave states:

    No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

    Each of these provisions enshrined and perpetuated an institution that constituted a gross violation of individual and violated the very principles upon which this nation was founded. It was a stain that ate at the very soul of the country and didn’t get erased until the blood of 600,000 men had been shed.

    Obama is anti-slavery! Scary!

    Comment by Brad — 10/29/2008 @ 4:25 pm

RSS feed for comments on this post.

Leave a comment

You must be logged in to post a comment.