With rancor over the Constitution and the future of the Supreme Court already at dangerously high levels, it’s important to at least fairly characterize the candidates’ positions when it comes to the Court. Today the Drudge Report failed this test spectacularly, with its blaring headline:

2001 OBAMA: TRAGEDY THAT ‘REDISTRIBUTION OF WEALTH’ NOT PURSUED BY SUPREME COURT

The headline (along with those plastered throughout the conservative blogosphere this morning) refers to the recently-unearthed interview Barack Obama gave a Chicago public radio station in 2001, in which he discussed the Supreme Court and the civil rights movement. In the interview Obama states:
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 vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be okay.

But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried 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’s been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the I think tragedies of the civil rights movement was because the civil rights movement became so court focused, I think that 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 coalitions of power through which you bring about redistributed change and in some ways we still suffer from that.
First, contrary to the Drudge headline Obama is not suggesting the Supreme Court should be redistributing wealth. In fact, he states clearly that, “the institution just isn’t structured that way” and for the court to do so would be “very hard to legitimize.” Obama further notes that in the rare instances where a court’s decision did cost the state money “the court was very uncomfortable with it,” revealing that the justices’ aim was never to directly redistribute wealth.

Rather the “tragedy” to which Obama refers is not any failure of the Supreme Court, but rather a failure on the part of civil rights leaders who looked narrowly to the courts to achieve economic justice. Obama expresses the view that the lead actors of the civil rights movement were overly focused on litigation, and therefore had “a tendency to lose track of the political and community organizing activities” that would have been the appropriate drivers of any wealth redistribution. In other words, Obama argues that it was not, and never should have been, the role of the Supreme Court to redistribute wealth, but that redistributive outcomes could have come through coalition-building, elections, and voting.

This sentiment is hardly captured in Drudge’s headline. It is, however, very much in keeping with the Constitution, which was amended in 1913 during the Progressive Era to allow for a redistributive tax system. The 16th Amendment reads:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
As we’ve recently noted, this Amendment was written for the express purpose of asserting Congress’s right to introduce federal, progressive income taxes, in direct response to an earlier Supreme Court decision that declared aspects of the preceding national tax system unconstitutional. Obama’s interview actually reveals an acute understanding of the intent of the 16th Amendment’s framers: that a redistributive tax system could and should be Constitutional, so long as it is introduced by the legislature, and not (for example) by the judiciary.

None of this, of course, makes it into the Drudge Report. However, Obama’s statements, though grossly mischaracterized, remain highly relevant to the text and history of our Constitution. Through the Amendment process We the People have already had our say on the redistribution of wealth, and have wisely reached the verdict that Americans are best served by a Constitution that allows – indeed, protects – Congress’s right to enforce a progressive, redistributive tax system.