Writes Kerr, at Volokh:
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. It doesn’t help that only parts of the audio are posted: Given the obvious bias of the person who edited the audio, it’s probably a decent bet that the rest of the audio makes the comments seem more innocuous than they do in the excerpts. Of course, there’s the separate point about Obama’s interest in “major redistributive change” more generally: It would be interesting to know if Obama endorsed that goal in the interview, and what specifically he had in mind.
Kerr’s professional demeanor provides him with training in modulating tone, but there’s little doubt here that his post is an attempt to strip away the more radical elements in Obama’s remarks via the predictable academic method of “problematizing” intent by way of challenging context. I don’t mean to suggestive Kerr does this as a way toward intentional duplicity. It could merely be force of habit.
First, let me state upfront that Kerr has a valid concern when he notes that “it doesn’t help that only parts of the audio are posted.” But he follows that up with a rather loaded — and unsubstantiated — bit of speculation, namely, that “given the obvious bias of the person who edited the audio, it’s probably a decent bet that the rest of the audio makes the comments seem more innocuous than they do in the excerpts.”
This is surprisingly shoddy thinking from someone of Kerr’s pedigree, but it is, rhetorically at least, potentially persuasive — and it is perhaps that route which he chooses to take here: to wit, if one believes “bias” the motivating factor for publication of the clip — and by bias, Kerr means not bias in favor of capitalism and judicial restraint, but rather (the subtext suggests) a bias against Obama personally (innocuous) that would lead the editor necessarily to take the remarks out of context .
But clearly, there is Kerr’s argumentative leap — one that, I’d like to point out, could, if proven, turn perception in favor of Obama in a way the clip’s editor, were s/he truly concerned about Obama’s position on redistributive schemas, would be unlikely to chance.
Further, one wonders why, in the wake of Obama’s now infamous, and baldly formulated, “spreading the wealth around” comment, Kerr would find it “a decent bet that the rest of the audio makes the comments seem more innocuous than they do in the excerpts.” If anything (and this was the reason I titled my post an “analepsis”), recent statements from Obama make it a “decent bet” that the rest of the audio would not, in fact, walk back a position that Obama appears to have held — and expressed publicly — for at least 7 years.
Of course, there was an easy way for Kerr to move from suggestive, open-ended speculation — designed rhetorically to problematize the less charitable readings of Obama’s remarks — to a more concrete resolution of his concerns: and that is, to listen to the whole piece in context.
Beyond that, however, what I find most troubling about Kerr’s analysis is his conclusion:
[…] at the very least, it’s not at all clear that Obama had (c) [“suggesting that he would have wanted the Warren Court to have tried to take on such a project.”] in mind.
True, in a sense — but in its truth it misses the point. As David Bernstein notes:
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.[…]
All that said, there is no doubt from the interview that he supports “redistributive change,” a phrase he uses at approximately the 41.20 mark in a context that makes it clear that he is endorsing the redistribution of wealth by the government through the political process.
All of which is to argue that, while Obama finds it unlikely that redistributive change be brought about through front end legal battles, he thinks it is a worthwhile goal to pursue.
What Kerr (and, to some extent, Bernstein) fail to acknowledge is that, in the end, Obama would want the courts to validate such a paradigm shift in the dispersion of wealth — even though he recognizes 1) the Warren court was insufficiently radical enough to do so; and 2) that the way to eventually create a court that is properly radicalized is to create a community/social uprising that places demands for “social justice” on the court such that it re-interprets certain of the “essential constraints” placed upon it by the Constitution.
As we live and grow, so must the Constitution.
Which is why I argue that Kerr skates past the point. Because recall, here is how Obama characterized the overall efforts of the Warren Court:
one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think 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 coalition of powers through which you bring about redistributive change.
Clearly, Obama is here bemoaning that “redistributive change” — the goal, if we’re to believe his characterization of its incompletion as tragic — got lost in the trajectory of the civil rights movement and its having become court focused, and court focused by the Warren court specifically, whom Obama believes was insufficiently radical inasmuch as they were committed to a reading of the Constitution that focused on negative liberties — the “essential constraints” placed upon it by the founding fathers.
From this lament, it is easy to see that Obama finds it tragic that the Warren court was insufficiently radical in that it it didn’t “say what the Federal government or State government must do on your behalf” with an eye toward “redistributive change.”
That Obama believes, as Bernstein notes, that “The way to change judicial decisions […] is to change the underlying political and social dynamics; changes in the law primarily follow changes in society,” is not, per Kerr’s oblique suggestion, a repudiation of the idea that the redistributive change Obama desires shouldn’t take place via the courts. Rather, it is an argument that the Warren Court had not yet been properly primed — that community agitation and social upheaval by the masses had not yet reached the point where it could influence the court to “expand” its reading of the Constitution to include what the government “must do on your behalf.”
Which is why I find Kerr’s entire piece rather subtlely misleading.
Discuss.
Being not optimistic about the chances of doing your socialisms one way means you’ll just have to find another way. Orin Kerr is mentally constipated I think.
When Obama doesn’t think anyone is listening (or in this case, when very few were listening), or when he goes off-script, we know that we are going to get the (partial) truth about what he really thinks. However, Obama is usually a very careful person in that he rarely states anything concretely; he leaves himself some wiggle room, as in the “We don’t have the votes to do that [outlaw gun ownership],” quote, which is pretty clearly a statement that he would do it if he could.
The fact that Obama leaves himself room for interpretation means that someone like Kerr can walk things back. This tactic, however, needs to be used on a case-by-case basis to be effective, as the body of Obama’s statements (and actions for that matter) when taken as a whole tend to lead an intentionalist to believe that he does indeed believe the government should be involved in income redistribution and that the courts should concur with that role.
The Obama spin (v. 1.0 — don’t be surprised if it changes as the day goes on) is that “redistribution”, in this context, refers to education and “legal fees”(what?).
Exactly how one “redistributes” education is not explained. I understand wanting to arrange things so that more education is available to those who may not have had that opportunity before, but I don’t see how that could possibly be characterized as “redistribution”.
He’s a lawyer, and lawyers are allergic to coming to conclusions, justified or not.
“Yes, Hopey-Changey O’Bambi is a redistributive Socialist at heart.” See? How hard was that?
Hey maybe the media could maybe ask Baracky exactly how he wants to enact all his socialisms. He might need to have a Harry and Nancy conference call first to really have the details but I bet he has a general idea. It would be cool I think from a democracy perspective to nail this down so we can cast a more informed vote.
“It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties.â€Â
I think Isaiah Berlin’s definition of “negative liberty†may have been implied in what Obama said, but here may be some yet unexplored angle.
Wikipedia gives this gem on the subject:
“Berlin is best known for his essay “Two Concepts of Liberty”, delivered in 1958 as his inaugural lecture as Chichele Professor of Social and Political Theory at Oxford. He defined negative liberty as the absence of constraints on, or interference with, agents’ possible action. Greater “negative freedom” meant fewer restrictions on possible action. Berlin associated positive liberty with the idea of self-mastery, or the capacity to determine oneself, to be in control of one’s destiny. While Berlin granted that both concepts of liberty represent valid human ideals, as a matter of history the positive concept of liberty has proven particularly susceptible to political abuse.
Berlin contended that under the influence of Jean-Jacques Rousseau, Immanuel Kant and G. W. F. Hegel(all committed to the positive concept of liberty), European political thinkers often equated liberty with forms of political discipline or constraint. This became politically dangerous when notions of positive liberty were, in the nineteenth century, used to defend nationalism, self-determination and the Communist idea of collective rational control over human destiny. Berlin argued that, following this line of thought, demands for freedom paradoxically become demands for forms of collective control and discipline – those deemed necessary for the “self-mastery” or self-determination of nations, classes, democratic communities, and even humanity as a whole. There is thus an elective affinity, for Berlin, between positive liberty and politicaltotalitarianism .
Wow. If the voting public can’t see through this Marxist, we are so screwed! How could O! take an oath to ‘protect and defend’ the Constitution when he believes it is ‘fataly flawed’? Wake up America!
David Bernstein seems to agree with a stupid premise:
the Constitution as a “charter of negative liberties,†though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding.[my emphasis]
The Constitution is not a document of negative liberties. The preamble:
We the People of the United States, in Order to form</ a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
It is clear that the Government is to aggressively protect the individual, any one of “we the people”.
I can’t understand how a “Constitutional scholar” would miss that in the very first words, but I can see how a socialist could.
“I can’t understand how a “Constitutional scholar†would miss that in the very first words, but I can see how a socialist could.”
Ahh, but herein we find the indispensability of Jeff G yet again. O! prolly had a slew of young minds to mold while teaching ConLaw and by virtue of the ironic moniker “Constitutional scholar,†students walk away with no other view than the living Constitution, or have the incessant drum beat of the need for social justice eclipse whatever Enlightenment values the document was based on. Part of their whole long march, although more like a trail of tears.
Clearly it logically follows that if Obama thinks that redistributionist policies should be undertaken through the political process that he thinks that redistribution of wealth is constitutionally permissible. That is, the courts will not strike down such economic policies. Because the Constitution permits these policies.
He thinks, however, that the Courts are not “structurally” sound institutions to engage in wealth redistribution. Not that they shouldn’t do it; but that they are not a “good” institution to do so.
And yes, the Constitution is a charter of negative liberties.
In the land of Academia Kerr’s piece may be described as subtlety misleading. To some of us there was little subtle about it, Kerr is full of beans.
He’d argue about the subtlety of what Khrushchev meant when he said ‘we will bury you.’
I think he meant composting for his victory garden!
Crickets chirping…no one cares…this wont change anything…move on.
Lets talk about McCain’s comments in 2000 about those making more being able to pay more.
Whats the difference? We have a progressive tax system. Get over it.
Lets talk about McCain’s comments in 2000 about those making more being able to pay more.
Yes, I’m sure you would like to change the subject, Tim.
Not happening.
Sorry.
It’s the institution of a negative tax bracket that troubles, Tim.
Heh. “move on,” I think is a code word for ” hey douchebag, stop going after the jugular.”
Yeah, let’s move on to something McCain said in 2000. BECAUSE OF THE HOPE AND CHANGE!!!
Heh.
It’s government directing the re-appropriation of wealth to achieve someone’s definition of social justice.
Hell, they could lower everyone’s taxes and the principle would still be wrong.
Well Obama may have sai….TEH KEATING FIVE!!11eleventy
Hey, has anyone mentioned Palin’s wardrobe?
omg, she’s never even been to Paris. I bet they don’t even have a Colette Boutique in whatever stupid state she’s from.
I found it very misleading. The whole tone of the comment was that community organizing and political leadership from the legislature was the proper way to redistribute wealth and break free of the “restraints” handed down by the Founding Fathers. Those are the goals.
But did you notice what thought set him off?
He’s got the right to order lunch, but doesn’t (yet) have the right to a free lunch. That’s right, Obama wants a Constitutional right to a free lunch.
INDIANAPOLIS — Secretary of State Todd Rokita said Monday that his office has found evidence of “multiple criminal violations, including possible state and federal racketeering laws” in connection with fraudulent voter registration applications filed in Lake County.
There is no bottom to this rabbit hole.
What you said, more smarter than me.
I have views on Orin Kerr.
He is a boat-misser. A bad thinker.
A law misreader.
He sails off into a ditch and calls it the road.
Perhaps Ms Althouse will have thoughts on this. Then it can get an Insty link, and at least do some good.
Hey SarahW, you’ve alluded to your beef with Kerr before and I withheld form asking you to fill out your position then. This time I want to know something more of it. Would you mind to take the time to fill out your experience on that score, ie. your beef with Kerr?
from, damn me.
The Constitution is not a document of negative liberties.
It is if you are looking from the perspective of The Government.
Althouse has weighed in on it. She finds O!’s argument “conventional.” She does mention in passing that niggling (can I say that?) phrase “redistribution of wealth” but seems wholly unconcerned by it:
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.
For months! I guess that makes it less troubling.
It is if you are looking from the perspective of The Government.
Not by the intent of the Constitution. Our Government is supposed to guarantee and promote the concept individual inalienable rights. The presidential oath is to protect and defend that concept.
Not negative at all.
Sdferr, there is one specific case in particular where I began to notice Kerr’s quirks. (I has been thinking I would address it, at least sideways, in the next few weeks.) In general I’ve noticed the things I complain of above. Pardon my vagueness today, I promise to lay it down in the future.
Okie doke, no hurries, just idle curiosity on my part. Oh, and kick me if I somehow manage to miss it when you do put it down, so in the end (your kick) I get it.
Trick or treat! BONK BONK BONK (check your blog!)
Sdferr, and by “in general”, I mean about many subjects, not the one that aroused my initial interest.
A “negative” liberty means you have freedom from something. Freedom from suppression of political speech. Freedom from laws prescribing an established church. Freedom from unreasonable search and seizure.
Then along came Norman Rockwell with “Freedom from Want,” and suddenly even a freedom from something could mean a right to the fruit of another’s labor.
Normie was mostly a good egg, but sometimes he went a little overboard.
Figures Althouse weighed in. Did Reynolds link her?
When it comes down to it, the fraternity of Law profs will stick together, much like the fraternity of Beltway insider pundits.
Gives one pause, I think.
It is if you are looking from the perspective of The Government.
And that’s the rub, ain’t it? And if you’ve spent your life studying and working for and grasping The Government, then which way are you going to see it?
In O!, The Politician is Perfected. His name will become as Caeser.
Did Reynolds link her?
Yes, he did. Apparently this viewpoint is quite common in legal academia.
“A “negative†liberty means you have freedom from something. “
Agreed but the whole notion of calling them “negative” is to place in the mind that they are somehow undesirable.
As B Moe said they are a negative for the government. A restraint on government action.
Someone using the term “negative liberties” is talking from the perspective of government and implies that these “negatives” are bad and should be done away with.
Jeez, its like we’ve forgotten the inequity that Jim Crow and pre-warren America served black people. An important goal of civil rights movement was going to be overcoming this. MLK was killed organizing a union. And of course, enemies of civil rights always thought civil rights workers were commies.
However, when we look at it nowadays, an important thing to consider is to what extent wealth and income are now more equal between the races.
Though I disagree that hte warren court did not give positive rights. Gideon v. Wainwright is a positive right. Arguably Miranda too.
And slavery, meya. Don’t forget that.
Let’s also not forget that Spike Lee has stopped making movies which are obviously overtly geared towards the black man. There is just no end to this nations tragedies of inequity.
That’s not how it was explained to me by my con-law prof. He was very careful to point out that in this case “negative” didn’t mean “bad.”
“And slavery, meya. Don’t forget that.”
And some people think the founders were against redistribution!
Oh, I don’t know. I think if you had told someone like Thomas Jefferson or John Adams that you were going to take some of his money so that you could “spread the wealth around”, they would have shot you in the face.
As B Moe said they are a negative for the government. A restraint on government action.
I’m not arguing the reality. I’m pointing at the twist that has government, instead of focusing on what they are obligated to do, are focused on protecting groups and classes and non-citizens and animals.
If some one wants to burn the American flag, I can buy that it’s protected free speech under the 1st amendment. Government should protect the individual that does it from government prosecution, as well as the passerby that calls him a commie faggot.
Wanting to prosecute the passer-bye for saying “faggot”, under a hate crime law, is where looking at the Constitution as a document of negative liberties leads.
“That’s not how it was explained to me by my con-law prof. He was very careful to point out that in this case “negative†didn’t mean “bad.—
I’m not sure if that is agreeing with me or not. Text doesn’t have as many clues to meaning as face to face conversation so I have a harder time sussing out intent at times.
What I was trying to get across is that Obama was not talking to a con-law class. Using the term “negative” is a way to slam constitutional rights. It may be a proper term in con-law classes though even there I suspect it was adopted because of it’s “negativity”. Much like how both sides on the abortion debate call themselves “Pro” something not “Anti” something.
You know, it’s not that surprising considering the former lecturer in law; didn’t actually insist on the reading of important case, likes the Civil Rights decisions of the 1870s, Slaughterhouse, et al relying on commentaries by a critical legal studies (marxist) professor, Derek Bell. So he obviously doesn’t know the actual legal limits of such legislation.