Hey, Drudge: Meet the Constitution (oh, and Listen to the Interview)
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.
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Comments
Comment from Chris
Time: October 28, 2008, 2:01 pm
Wrong, Wrong, Wrong
The 16th simply eliminated the provision that all taxes collected must be “apportioned among the states according to population”. The basis for the Income Tax comes from Article I, section 8 of the U.S. Constitution not the 16th Amendment. Furthermore redistribution and in fact “progressiveness” are mentioned nowhere. And while we are on the subject “progressive” is not equal to “redistributive”. Progressive relates to increasing the tax rate at higher income levels, redistribution is what the government does after it collects it.
Comment from MichaelJN
Time: October 28, 2008, 4:48 pm
Are you aware of the contention surrounding the process involved in the “passage” of the 16th amendment? Implying that this amendment is an example of “We the People” having spoken seems a little presumptuous, ignorant of history and premature in any case. I think we may soon revisit this issue directly, and this time, We the People will make our voices heard loud and clear!
Comment from Elizabeth
Time: October 28, 2008, 7:48 pm
Chris,
Thank you for your thoughtful comment. I wanted to tease out some of the points you made regarding the pre- and post- 16th Amendment constitutional taxation system.
It is true that the original Constitution granted Congress the power to “lay and collect Taxes” (Article I, § 8). But that power was limited by two other provisions in Article I: that “no Capitation or other direct, tax shall be laid, unless in Proportion to the Census” (Art. I, § 9) and that “Representatives and direct taxes shall be apportioned among the several States” (Art. I, § 2). In the 1895 case Pollock v. Farmers’ Loan & Trust Co., the Supreme Court used these provisions to strike down the 1894 federal income tax law. The Court in Pollock struck down a federal tax that included income derived from property (like rents or dividends) because these were deemed to be “direct” taxes—although income taxes on daily wages, generally earned by the less wealthy, were acceptable, indirect taxes even under Pollock.
If Congress wished to lay “direct” taxes on property owners, they needed to be levied such that the amount collected from each state corresponded to that state’s population as determined by the census (the “apportionment” issue you refer to in your comment). Accordingly, states with the same number of people would pay the same total amount of direct taxes—even if one state had an extremely wealthy population and another state had relatively poor residents. [It is also worth noting Justice Harlan's reminder in his Pollock dissent, that the "capitation and direct tax" provision in the Constitution had originally been designed to shield Southern slaveholders from heavy capitations ("head taxes") on slaves.]
Neither a truly progressive nor redistributive federal tax system could have been created under the original taxation power of Article I of the Constitution, as interpreted by the Court’s ruling in Pollock, because any indirect tax (which was free from apportionment limitation) would disproportionately affect the wage-earning poor, while the progressive effect of any “direct tax” on property income would be blunted by the apportionment requirement. [To get to your other point, any progressive tax system used to fund the government is redistributive in some basic sense, e.g., we all enjoy the federal defense but those in higher tax brackets pay for more of it than those who pay little or no tax.] So, We the People overruled the Supreme Court and ratified the Sixteenth Amendment, which left no doubt that Congress had the ability to collect tax on income, whether derived from daily wages or property income, without regard to the population of each state.
Written by Elizabeth Wydra, Chief Counsel for the Constitutional Accountability Center.
Comment from doug
Time: November 3, 2008, 11:09 pm
The progressive income tax is a pillar of Marxist doctrine. Interesting that we have brackets for taxation but none for voting. Isn’t everyone considered equal and thus not a bracketed citizen?
The federal Income tax has been the crucial part of the the downfall of this nation as it took the power from the states that created the federal government and placed it in DC. This 1913 Amendment coupled with the 17th amendment of that same era that made the senate no longer the protector of the state’s issues and the creation of the federal reserve to decouple the congress from the power to regulate the coining of lawful money and the freezing of the house representatives at 435 thus making this country the one with the worst representative/constituent ratios of any western democracy have scuttled our founders intent and started this counrty on the path to demise.
Comment from Dave
Time: November 17, 2008, 3:45 am
Doug is spot-on.
I would also add that your assertion that the 16th Amendment, “left no doubt that Congress had the ability to collect tax on income, whether derived from daily wages or property income” is somewhat perplexing. First, ‘income’ is defined in neither the 16th Amendment nor in the Internal Revenue Code itself. Second, in Stanton v. Baltic Mining Company (1920), the Court ruled that that the 16th Amendment conferred no new power of taxation on the Congress. So, if Congress didn’t have the power to tax wages before the 16th Amendment, and if the 16th Amendment did not afford them such power, then one must inquire as to the legality of the income tax as it exists today.
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