Top Headline Comments 10-27-08 | Main | Obama: Let's Pursue Reparations Through Legislation Rather Than the Courts
October 27, 2008

Furious Spining from the Left on Obama's Racially-Motivated Redistributive Change

Starting at (surprise, surprise) Ben Smith's Blog, which quotes Obama law adviser Cass Sunstein:

A top legal advisor to Barack Obama, Harvard law professor Cass Sunstein, said today that Obama's 2001 remarks on "redistributive change" -- pushed hard on the right today -- are being misinterpreted, and that he was actually articulating "conservative" legal principles, and that the then-law professor's "law-speak" was being misinterpreted.

...

"What the critics are missing is that the term 'redistribution' didnt mean in the Constitutional context equalized wealth or anything like that. It meant some positive rights, most prominently the right to education, and also the right to a lawyer," Sunstein said. "What hes saying this is the irony of it hes basically taking the side of the conservatives then and now against the liberals."

Sunstein is correct as to the practice of the Court now. The Court refused to equalize wealth and that hasn't been overturned yet. But Obama very clearly thinks that was a bad decision of the court because he goes on to praise the state supreme courts for taking up the issue (from the full transcript, which I cleaned up):

One other area where the civil rights area has changed... is at the state level you now have state supreme courts and state laws that in some ways have adopted the ethos of the Warren Court. A classic example would be something like public education, where after Brown v. Board, a major issue ends up being redistribution -- how do we get more money into the schools, and how do we actually create equal schools and equal educational opportunity? Well, the court in a case called San Antonio v. Rodriguez in the early '70s 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, thats a wealth issue and something and we can't get into.'

Now what is interesting, though, is suddenly a whole bunch of folks start bringing these claims in state court under state constitutions that call for equal educational opportunity. And you see state courts with mixed results being more responsive to it. You know the reason I think that is relevant. It's not to say that I am not worried about the lack of protections coming from the Supreme Court, but it is to say, though, that you have 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.

Also a reminder: this story is not about simple redistribution from the haves to the have-nots, which is the norm from Democrats and therefore unsurprising. Obama's redistribution is in the context of the civil rights movement. In other words, from everyone else to blacks, based on nothing so much except skin color.

Many people will need to be gently reminded: this is not about helping the poor. Many, many, Democrats and independents (and Republicans) aren't bothered by a little redistribution to alleviate poverty. I think for many it is considered a public good, something that, of course, governments should provide. So when this is couched in those terms, people will think "no big deal, we already do this."

That's the way Professor Bernstein went at Volokh:

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.

Obama's desires for redistribution are not merely about 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, as Bernstein implies. I'm sure Obama is interested in that kind of redistribution. But his comments reveal that he's also interested in redistributing wealth based on skin color.

No matter how resigned to redistribution for purposes of alleviating poverty, or educational disparities, very few are ready to embrace redistribution based on race. Go out and remind them!


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posted by Gabriel Malor at 12:51 PM

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