Sunstein: Ridiculousness About Redistribution

Cass Sunstein, from today's TNR (reprinted in full with permission of the author):

Ridiculousness About Redistribution: Drudge and Others

In the last few days, the McCain campaign has portrayed Barack Obama as a "socialist," and apparently the campaign and others are combing through Obama's past statements to see if he has ever favored "redistribution."

The latest ridiculousness, featured in a screaming headline on the Drudge Report and described under the title "Shame" on the National Review website, involves some remarks made by Obama on public radio in 2001.

In that interview, Obama was discussing efforts, in the 1960s and 1970s, to redistribute resources through the federal courts. Obama said that the Warren Court was not so terribly radical, because it "never entered into the issues of redistribution of wealth, and sort of more basic issues of political and economic justice in this society." He complained, not that the Court refused to enter into those issues, but that "the civil-rights movement became so court-focussed,"

In answering a caller's question, he said that the court "is just not very good at" redistribution. Obama added, with approval, that the Constitution "is generally a charter of negative liberties."

Obama's principal claim--about the institutional limits of the courts--was made by many conservatives (including Robert Bork) in the 1960s and 1970s: Courts should not attempt to guarantee "positive" rights, or interpret the Constitution to redistribute wealth. Obama is squarely rejecting the claim that was made by many liberal lawyers, professors, and judges at the time--and that is being made by some today.

Apparently, though, some people are thinking that Obama is displaying his commitment to redistribution, at least in principle. We have to make some distinctions here. The word "redistribution" is easily politicized, but, in terms of actual policy, it seems to include the Social Security Act (which redistributes wealth), the Americans with Disabilities Act (which also redistributes), educational reform that would improve schools in poor areas, Head Start programs, statutes allowing parental leave, the Earned Income Tax Credit, the progressive income tax, and much more. Almost all candidates for public office (including Senator McCain) favor significant forms of redistribution. With his court-skeptical statements in 2001, Obama was referring to the sorts of claims being made in courts in the relevant period, for which the word "redistribution" has often been used. (Those claims involved denials of education and medical care, and discrimination in welfare programs.)

It is true that Obama supports the Earned Income Tax Credit (an idea pioneered by Republicans). It is also true that Obama supports the minimum wage. It is true too that Obama is centrally concerned with decent education for all -- and the right to education was at stake in perhaps the most important case that Obama is discussing. It is true, finally, that Obama wants to make health care available for all. But it is truly ridiculous to take Obama's remarks in 2001 as suggesting that the nation should embark on a large-scale redistributive scheme.