1/16/12

If you Google “Obama and the Warren Court” you will see a comment that Obama did not actually say the Warren Court was not radical enough. You will also discover that it is mostly a question of semantics.

Obama said in the 2001 radio interview the Warren court was not “that radical.” It did not break free of the constraints the founders had put in the Constitution. What he means is the protection of private property. The founders believed property was an inalienable right, just like freedom of speech and freedom of religion.

Obama said the civil rights movement relied too much on the courts. They should have paid more attention to the political system, by which he means try to pass laws to redistribute private property. But, he also suggests the Supreme Court could have interpreted the Constitution in such a way as to overcome the restrictions it contained. He refers to the property protection as “negative liberty.”

Until passage of the 16th amendment in 1913 there could be no direct taxes imposed. The income tax is a direct tax. The only taxes allowed were tariffs and sales taxes on things like liquor. Sales taxes were allowed under the Constitution because everybody paid the same tax. An income tax was considered theft of property by the government.

Obama said the emphasis should be on what the government can do, not what it can’t do (this is considered positive liberty). The idea is that just because you are free to pursue happiness it does not mean you are able to pursue happiness. The civil rights laws allowed blacks to sit at the lunch counter alongside whites. But, it did not help unless they had money to spend. So, to be really free poor black people had to get spending money from the government. (Incidentally, Jefferson took John Locke’s “life, liberty, and property” and substituted pursuit of happiness for property in the Declaration. I suppose he thought it sounded more egalitarian.)

Obama would like the courts to focus on positive freedom and interpret the constitution in such a way that it is not necessary to go through the complicated amendment process. That is why he says judges must have empathy. It is not what the law says that matters, it is how it affects people. The Warren court was not radical because it refused to read between the lines. It lacked empathy.

Will the Supreme Court read between the lines and authorize Obamacare because eating broccoli is good for our health?. Positive freedom means what we would do on our own, if we were as smart as the elites.