Thursday, October 30, 2008

LMJ's Fact-Free Editorial

The Lorain Morning Journal runs an editorial today -- not a wingnut-penned op-ed, mind, but an editiorial -- rehashing the charge that Obama wants to turn the Constitution into Das Kapital. Here's the nut:

    With less than a week remaining before Election Day, it seems to us that the real October surprise of 2008 is how little serious attention is being paid to the genuine and profoundly disturbing statements by Barack Obama himself. Specifically, Obama's "spread the wealth" admission to Joe the Plumber and most especially to an interview Obama did on Chicago public radio several years ago in which he basically dismisses the U.S. Constitution as a flawed document because it only talks about protecting citizens from the government and does not specify what the government "must" do for citizens. His words create the distinct impression that under an Obama presidency, federal judges and Supreme Court justices appointed by Obama would be encouraged to reinterpret the Constiution and to go beyond its words in ways that would result in a whole new concept of what the United States of America is about. Although Obama's delivery of these concepts was as cool and dispassionate as ever, the real-life social impact of such reinventing of the Constitution would surely be so red-hot as to make the word "radical" totally inadequate.
Problem. Obama didn't say that. More to the point, he said the opposite. You can find a transcript on the Fox News site of all places and follow along. (By the way, I've cleaned up the transcription a bit.) First off, here's the bit that Limbaugh et al use to make the charge:
    I mean if you look at the victories and failures of the civil rights movement and its litigation strategy and the court I think where it succeeded was to vest formal rights 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 could pay for it would be ok but the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice.
OK, stop right there. Not because that completes Obama's thought, but because the wingers using this interview stop there. I unfortunately ran across Rush declaiming on this earlier this week. He stops the tape here and says, "He regrets this. He thinks this is a bad thing." With no actual evidence or anything.

So here's the rest of that graf:
    in this society and to that extent as radical as 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 has been interpreted and the warren court interpreted it generally in the same way that the constitution is a document of negative liberties says what the states cant do to you says what the federal govt cant do to you but it doesn't say what the federal govt or state govt must do on your behalf and that hasn't shifted and i think one of the tragedies of the civil rights movement was that the civil rights movement became so court focused i think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change and in some ways we still suffer from that.
There's a lot here -- about latter day critics of the Warren Court, about the difference between positive and negative rights. It's all heavily academic. The key for our purposes is the last bit where Obama says that the court successes lulled the movement into relying too much on litigation and not enough on political organization. That doesn't sound like someone who wants to write redistribution into the Constitution but the opposite -- someone who thinks questions of economic policy should be left to the political process.

Not enough? Try this from later in the interview:
    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 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 order you know changes that cost money to local school district 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 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 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 I think that as a practical matte that our institutions are just poorly equipped to do it.
So, an interview in which Obama says that using courts to redistribute wealth is used to prove he intends to use courts to redistribute wealth. One wonders if the LMJ actually read the transcript, or if they just heard the Fox/Limbaugh snippet. In their summing up, the paper says:
    Do not brush off this admonition as an empty scare tactic from a newspaper that has endorsed John McCain.
Fair enough. Instead let's brush it off as an empty scare tactic from a newspaper that can't be bothered to do basic reporting.

UPDATE: I'm off my game. I forgot to h/t my tweep Olevia for the tip.

UPDATE 2: Olevia points out that I forgot to link to the piece. And I forgot the link for the transcript. Really really off my game. Links are updated above. Also if you want to know more about the negative/positive rights issue alluded to above, Prof. Will Huhn has a good explanation on Akron Law Cafe.

2 comments:

olevia said...

For anyone interested, here is the the link to the Lorain Journal editorial:

http://www.morningjournal.com/articles/2008/10/30/opinion/mj179617.txt

Eric said...

His words create the distinct impression that under an Obama presidency, federal judges and Supreme Court justices appointed by Obama would be encouraged to reinterpret the Constiution and to go beyond its words in ways that would result in a whole new concept of what the United States of America is about.

As you point out, Pho, the LMJ position is not supported by Senator Obama's words.

Nonetheless, once the looney left lines up for their political paybacks, President Obama's ability to lead the nation will end. Look for that to happen before Cabinet confirmation hearings conclude.

Will Bradley v. Milliken be upheld by an Obama court? Wouldn't it be good to spread the wealth around by incorporating eastern suburbs (say, Beachwood) into the Cleveland School District?