Tuesday, October 28, 2008

Warren's redistribution

This interview, given by Barack Obama in 2001, is generating a lot of chatter the past several days. Commenting on the Warren Court, the Senator said:

"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."

Sorry, I'm not going to use this essay to blast Obama as a socialist; you can find that elsewhere online if you wish. Let me just parenthetically say that people have a tendency to get worked up over policies that they believe are extreme without really understanding that it can be just as extreme to go too far the other way. I keep hearing pundits on the right decry "redistribution of wealth." Well frankly, I don't want the government taking my hard earned money, either; on the other hand, I don't want the poster child for American democracy to be Oliver Twist.

No, what I disagree with Senator Obama on is this implication that it would have been agreeable for the Warren Court to have established wealth redistribution as a touchstone of their decisions. You can easily see why if you consider the Warren Court's most famous case, Brown v. Board of Education, 347 U.S. 483 (1954).

Thurgood Marshall was the attorney for Briggs v. Elliott, another school segregation case lumped with Brown. The Briggs case originated in Clarendon County, South Carolina. The county had 276 white children attending its public schools and 808 black children doing likewise--in segregated schools, of course. Clarendon County spent $395,329 on education at the white schools, but only $282,960 on education at the black schools (Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall, 1993, p. 13). That rounds off to $1,432 per white child and $350 per black child, so that unit of the Palmetto State was spending better than four times as much money on each white student as each black one.

Once Warren and his colleagues agreed that this was unacceptable, as it obviously was, there are two things they could have done. They could have said school segregation is unconstitutional and must cease. That's what they did.

Or, they could have taken a redistribution of wealth position and said that it was okay to have segregated schools, but South Carolina would henceforth have to fund its black schools to match the white ones. That would be saying that separate schools were fine, South Carolina's error was in not having equal funding.

In other words, while the Warren Court held that segregation itself was the evil, the redistributionist principle would hold that the lack of true equality was the evil. This second position, believe it or not, is more or less what Derrick Bell, a professor of Obama's at Harvard Law School, has argued. In the book What Brown v. Board of Education Should Have Said (Balkin, ed., 2001), nine constitutional scholars were asked to write opinions in Brown as though they had been on the Supreme Court back in 1954 when the case was decided. The actual Brown opinion was unanimous, but in this mock exercise the vote was eight to one--with Bell the one scholar dissenting. Essentially he argued that instead of ordering an end to school segregation, the majority should have mandated a complex framework to insure equal allocation of resources for all schools--that is, engage in redistribution of funds. I think it's arguable that Bell's position is actually a concurrence rather than a dissent, but that's what he calls it (p. 185) so who am I to argue?

The problem with focusing on the unacceptability of unequal funding of schools, instead of the more general point that segregation itself has no place in America, is obvious when you consider the matter in other contexts. Dr. Martin Luther King, Jr., in his famous "I Have a Dream" speech, exclaimed:

"We can never be satisfied as long as our bodies, heavy with fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities."

If you take the attitude that the chief evil of "separate but equal" isn't the "separate" part, but rather that "equal" wasn't scrupulously observed, then it would be perfectly acceptable to have a motel refusing to give African-Americans a room for the night as long as there was a motel across the street just as good that catered to people of color. Fortunately, people came to see that "separate" was the bigger problem. Segregation is per se wrong and inconsistent with the Fourteenth Amendment in the sense that Americans by the sixties understood it. The year after King's famous speech, Congress passed the Civil Rights Act and King's children don't have to worry about being denied lodging when their bodies are heavy with fatigue of travel.

Whatever points Senator Obama may make on the Warren Court in general, I think we're fortunate they took the stand in Brown against segregation rather than for redistribution. Professor Bell argues that if South Carolina had been forced to spend as much money on each black student as each white one, the segregated system would have died out due to the state's unwillingness to spend that much--in other words, economic factors would lead to one school system for all children instead of two based on skin color.

Of course, one hundred sixty years before Brown "(M)any believed--or hoped--that slavery would die a natural death as free labor demonstrated its economic advantages." (Tushnet, Slave Law in the American South, 2003, p. 12.) How'd that work out?

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