If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.
To that extent, as radical as I think 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 its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and 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. In some ways we still suffer from that.
First of all, is there anything more important than knowing what a presidential candidate believes about the Constitution that he must swear to defend and protect? Second, isn’t it significant that Obama wants to “break free from the essential constraints that were placed by the founding fathers in the Constitution”?
If you agree with that, fine, but we all need to realize that this is what he believes. That includes a big government that goes beyond constitutional restraints. And that one of this big government’s roles is “redistributive” change. Civil rights are not enough, since those are constitutional, and property right is a civil right.
Would that the debates, questions, and media attention focused more on such “theoretical” issues.
UPDATE: I see in finally checking the comments that FW has commented on this under “Conservatives for Obama.” He says this is just judicial conservatism, reflecting the limits of what the courts can do. But he is surely opposing here the philosophy that the government should be limited to what the constitution says it should do, which is one of the hallmarks of a conservative political theory and, indeed, of the rule of law. And “redistributive change” is not just talking about a progressive income tax!
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