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October 29, 2008

Obama to Revive FDR's 2nd Bill of Rights

Sacre bleu, mes amis! Seldom since the halcyon days when the Editorial Staff revealed Clarence Thomas' role as dread Lord of the Constitution-in-Exile Conspiracy have we been so entertained! For those new to VC and our thankfully obliterated law archives, a trip in the Wayback Machine - back to 2005 - may be in order:

Alert readers will no doubt recall that just a few short months ago, Jeff Rosen was madly flogging the Constitution-in-Exile Conspiracy.

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Membership in this clandestine Brotherhood must have been an awfully well-kept secret, for the arcane and conspiratorial nature of the plot was such that the rank and file apparently went about their business for decades, blissfully unaware they were engaged in a desperate struggle to overthrow the Republic. But Evil will brook no delay. The Cause marched on. Sans soldiers, sans leader even... That is, until Gonzalez v. Raich reared its ugly head:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal.

The Editorial Staff found the epic struggle between the Constitution-in-Exile and Constitution in 2020 folks to be extremely diverting. Not that the CIE folks were ever aware they were engaged in a grudge match for the soul of the nation, mind you. Rethugs can be so absent-minded. But they make such good boogeymen.

The cause of all this progressive angst was a long-forgotten FDR speech in which he outlined a truly sweeping set of revisions to American law: a second bill of rights meant to bring about "economic justice" for all. In 2005, a conference was held at Yale University to discuss whether FDR's vision of economic justice might be resurrected and enshrined in the United States Constitution. Not inaptly, it was called The Constitution in 2020 and the rights it wished to enact are popularly known as FDR's Second Bill of Rights.

The short version (aka the Economic Bill of Rights) can be found here. FDR proposed his second Bill of Rights during a State of the Union Address on January 11, 1944. In that address, he told the nation the Constitution/Bill of Rights had "proved inadequate to assure us equality in the pursuit of happiness." He proposed a second Bill of Rights to be enacted through the federal legislature rather than enshrined in the Constitution. This new Bill of Rights would guarantee the following government benefits by statute:

* A job with a living wage
* Freedom from unfair competition and monopolies
* Homeownership
* Medical care
* Education
* Recreation

Is any of this beginning to sound familiar? It should:

It's true that most Americans, when asked by pollsters, think that it's emphatically not the government's job to redistribute wealth. But are people so stupid as to not recognize that when politicians talk about a "right to health care," or "equalizing educational opportunities," or "making the rich pay a fair share of taxes," or "ensuring that all Americans have the means to go to college," and so forth and so on, that they are advocating the redistribution of wealth? Is it okay for a politician to talk about the redistribution of wealth only so long as you don't actually use phrases such as "redistribution" or "spreading the wealth," in which case he suddenly becomes "socialist"? If so, then American political discourse, which I never thought to be especially elevated, is in even a worse state than I thought.

I believe Orin has deftly put his finger on the crux of the issue I raised the other day regarding John McCain's troubles at the polls:

What McCain needs to offer voters is a positive vision of what life in America would look like if he were elected President. The election needs to be framed, not as a choice between a dangerous Socialist and an American hero, but as a choice between two competing plans for America's future: one rooted in the stability of over two hundred years of American innovation and industry (but informed by 21st century idealism) and one based on the European model: redistribution of the wealth and more government.

It's a simple choice, really. In 20 years, what do you want America to look like?

Do you want it to continue to look like America? A land of opportunity where immigrants from all over the world flock, attracted by the lure of the American dream? A land where representative democracy was born and continues to improve, but where individual rights and initiative are still respected?

Or do you want America to look more like France and Germany? Do you think Congress did such a good job of protecting your interests while the mortgage crisis simmered for nearly 20 years that you want to expand its power over your life?

What is your vision for America?

Calling Obama a Socialist proves nothing germane to most voters while allowing the Obama camp to claim they're the victims of a smear campaign or are being targeted by ignorant racists. The truth is that voters don't care about political labels. They want to know two things about a candidate:

1. Can I trust this person to make good decisions that protect my interests?

2. How will the vote I cast on election day directly impact my life?

I didn't have time, the other day, to explore the more interesting aspects of this passage but I think it's important to do so now.

In that post I touched on the fact that many voters have either an exceedingly poor grasp of the issues or appear to be disregarding them entirely. This was well illustrated by the Howard Stern video, in which McCain's talking points were erroneously attributed to Obama, even to the point of giving him Sarah Palin as a running mate. Disturbingly, none of this made any difference. Obama supporters cheerfully swallowed it all - pro-life stances, opposition to stem cell research, even the much hated Palin as VP.

Some of the cognitive dissonance may be attributable to information overload. A lot may be due to apathy. But much may also be attributable to the profound distrust most of us have come to feel for the media. It is not unlikely that many would-be voters simply tune out most of what they see and hear, figuring the vast majority of it is biased information. Frankly, unless they have time to do extensive fact checking on their own, this may not be an irrational decision.

The problem, though, becomes one of seepage. Voters can only filter out so much. If one is surrounded by a barrage of mass media continually grinding out a fairly consistent message, some portion of that message must permeate whatever barriers one thinks have been constructed against bias; especially if only one side of the story is being told.

Information that is never heard cannot be filtered, compared and contrasted with opposing information, weighed, even eventually discounted and discarded. It never has a chance, and this does an enormous disservice to voters who are willing to entertain both sides of an issue. It never enters the universe of available data: the pool of possible alternatives. This is what is so wrong with media bias; not that the press openly favor one candidate, but that in so doing they close off entire avenues of inquiry, becoming the very type of authoritarian gatekeepers they claim the Fourth Estate exists to protect the public from.

Who is able to hold the media accountable? If a federal shield law is enacted, soon no one will be able to. They will be completely above the law: a completely unaccountable and unchecked (not to mention unelected) virtual fourth branch of government. But not to worry. They have our best interests at heart and unlike every other human being on the planet, power will not corrupt them.

In the meantime, thanks to the fascists at FauxNews we have the transcript of Mr. Obama's full remarks from 2001 to consider. We can, if we can manage to stop screaming, "Fox News sux! They're all Nazi babykillers!" long enough, always check it against the tape of Mr. Obama speaking for accuracy, if not for typos:

... the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court it wasn't that radical 40;30 it didnt break free from the essential constraints that were placed by the founding fathers in the constituion at least as it has been interpreted and the warren court interpreted it generally in the same way that the constitution is a document of negative liberties 40:43 says what the states cant do to you says what the federal govt cant do to you but it doesnt say what the federal govt or state govt mst do on your behalf and that hasnt shifted and i think one of the tragedies of the civil rights movement was that 41:01 the civil rights movement becaem so court focused i think there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that

Now many people have argued (incorrectly, I believe) that Mr. Obama was threatening to use the courts to redistribute wealth in this passage.

I believe it's quite plain Obama meant nothing of the sort. He has no real issues with redistributing wealth. He simply believes the courts are ill suited to this purpose, as when one uses the courts one fails to leverage the "coalitions of power" possible through legislative avenues. As soon as I read this I thought of FDR's Second Bill of Rights, as FDR, too, envisioned a legislative implementation of economic justice. This is why I wrote the post I wrote yesterday. It's why I argued that there is no point in calling Obama a socialist.

I sat on the post I wanted to write for a few days. Not literally, because that would have been painful, but figuratively. Because as always I did not wish to be irresponsible or unfair to Mr. Obama. There is more than enough of that on the Internet these days. I'm tired of seeing conservatives make asses of themselves. But I was quite sure this was what Mr. Obama was talking about. And now he was come right out and said it in so many words:

U.S. Rep. Marcy Kaptur (D. Toledo) whipped the crowd up before Mr. Obama took the stage yesterday telling them that America needed a Second Bill of Rights guaranteeing all Americans a job, health care, homes, an education, and a fair playing field for business and farmers.

I have been cautious about this. And I still believe there is little point in throwing labels about.

But this is what the man has said. A second bill of rights. It is consistent throughout his history. I really don't see what more one needs - look at his tax policies, as I did in my prior post.

And as the Heritage Foundation has pointed out, Mr. Obama has not been honest with the American people about his tax policies:

The print ad on your Website as well as your ad entitled “Try This” reference a quote from policy analyst Rea Hederman. In fact, Mr. Hederman never said what is quoted there. Rather, the words you quote are from a New York Sun reporter who interviewed Mr. Hederman and summarized his views erroneously.

That the reporter’s summary is erroneous is evident from the actual quotes from Mr. Hederman presented in the article, which make it quite clear that Mr. Hederman believes your tax plan would be bad not only for the country, but for the middle class. By omitting the direct quotes from Heritage that are contained in the article and attributing to Heritage a conflicting statement not made by its analyst, the advertisement appears to be an intentional attempt to mislead.

Surely there can be no doubt within your campaign as to how Heritage truly views your tax plan. When one of your economic advisors, Jeffrey Liebman, made this same misrepresentation in a September 4, 2008 letter to The Wall Street Journal, Mr. Hederman promptly sent a corrective and very public letter. It appeared in the September 16 issue of The Wall Street Journal under the title: “A Bad Plan That Is Less Bad Is Still Not A Very Good Plan.” In it, Mr. Hederman strenuously decried Mr. Liebman’s blatant misrepresentation and set the record straight.

The Heritage Foundation believes that your advertisements’ use of its name is not only not a fair use of its intellectual property, but is an intentional attempt to mislead and misinform voters. As a responsible candidate, you should insist that your campaign cease to run these false advertisements immediately.

I truly believe that if a great many Obama voters understood what this man was proposing, they would withdraw their votes.

The question is: do they?

Posted by Cassandra at October 29, 2008 06:28 AM

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Since he is following in FDR's footsteps, how long before "President" Obama tries to expand the number of judges on the Supreme Court to pack it with judges friendly to his agenda?

Posted by: Frodo at October 29, 2008 09:32 AM

Nice :p

Posted by: Cassandra at October 29, 2008 09:45 AM

He simply believes the courts are ill suited to this purpose

Well, yes.....
The problem is the phrase "ill suited". His objection to using the courts is a practical one, not a philosophical one. He doesn't believe it is wrong to use the courts this way, just sub-optimal.

This, to me, is a rather big distinction.

Posted by: Yu-Ain Gonnano at October 29, 2008 09:50 AM

Back this up with Obama's statement about choosing judges based on their empathy for "...the young teenage mom... poor, or African-American, or gay, or disabled, or old" instead of their knowledge, intelligence, and analytical thinking to correctly interpret law and apply it, and I get the distinct impression that using the Judiciary to implement his social policy is not above him when it suits his needs.

Posted by: Yu-Ain Gonnano at October 29, 2008 10:00 AM

I do not disagree with that statement :p

Posted by: Cassandra at October 29, 2008 10:01 AM

Read the transcript carefully, Yu-ain :p

I'm kind of busy today. I can't recall if that is what I was reading or whether it was something else but I'm pretty sure it was Obama who was blathering on about how the courts were responsive primarily to public opinion and this is what makes them poorly suited to using for this purpose (IOW, they will not legislate from the bench in advance of public opinion, so what you need to do is use the community organizing function to mobilize public opinion - get the groundswell of public opinion behind you first).

Ironically, as Joan Walsh pointed out in her Salon piece, this is a position not inconsistent with conservative thought on changing the law and we will have a really, really hard time fighting him on it.

Bread and circuses. This guy is dangerously smart :p

Posted by: Cassandra at October 29, 2008 10:04 AM

Without being labeled as a regressive monster, I would point out that your post of a few days ago comparing the outcomes from the two tax plans by
Obama and McCain is a bit misleading (inaccurate?), in that Mr. Obama intends to let the tax cuts enacted under Bush 43 to expire, while McCain wants to renew them.
That would change the "shape" of the tax cuts/tax increases illustrated.

My mother grew up under FDR, and in her more lucid younger days (when she was about your present age, Cass), told us young-uns that the country never came closer to a dicatatorship than under FDR; that was forty years ago, though. Since then she got herself a college degree from Antioch.

These days, she is probably going to vote for Obama, even though she is a registered "shudder" Republican.

Posted by: Don Brouhaha at October 29, 2008 10:10 AM

Again, the main problem is with what I call useful idiots who have absolutely no idea what they are advocating for.

My problem with Obama is that he is so adept at "organizing people" who, in reality, don't really have the slightest idea what kind of "change" they are supporting. That scares the crap out of me.

I can't argue with people in a free society who disagree with me advocating with "change" that I oppose. My duty is to oppose the hell out of them.

But I really hate the idea of morons who vote for crap they don't understand, and that is what I'm seeing every day. When I read Colin Powell, who I've always thought was an ass in the world, blathering on about "temperment" overriding policy positions he fundamentally disagrees with (WTF???) or Anne Applebaum (who actually made a reasoned argument up to a point and then went completely off the rails to an illogical conclusion) I start to wonder if there is something in the freaking water supply?

Posted by: Cassandra at October 29, 2008 10:10 AM

Well Don, I'd have to go back and look at that again. I'm relying on the Tax Policy center analysis, but their analysis doesn't seem to be any different than that of the Post and the Heritage Center and the WSJ. I'm not sure how all of them can be wrong? But maybe they are.

I can't look at it today, but I will try to get to it. I tried to find several less partisan sources hoping people could compare, but it is hard to tell these days.

Posted by: Cassandra at October 29, 2008 10:15 AM

It's of little matter, really, since the Obama tax plan is unlikely to survive his election. Both Obama and Biden have already begun revising the numbers downward: from $250K to $200K to $150K in the last few days.

The real plan will be something like: 'Everyone with anything to tax will receive a tax increase.'

Posted by: Grim at October 29, 2008 10:32 AM

Cassandra, you can always expect 'Grim' to cast cold water on anything. :)

(That's why he's Grim.)

Well, the scoring by all these people is 'neutral', based on the candidates' proposals as they stand, but I also realized yesterday (after reading someone 'way smarter than me) that of course, the numbers would be different because the base assumption of the renewal (McCain) versus the expiration (Obama-Pelosi-Reid axis of the Inane) of the Bush tax cuts

Posted by: Don Brouhaha at October 29, 2008 10:58 AM

Trust me, Don, I'm rapidly getting to the point these days when I sit here and place silent bets as to who will be the first to tell me that whatever post I just spent most of the morning on is completely irrelevant, and why :p

If nothing else, blogging is good for helping a person acquire a thick skin, if not imperviousness to a growing sense of utter futility!

When I was a little girl my Dad used to accuse me of always giving up too easily. Dad - I'm trying :)

Posted by: Cassandra at October 29, 2008 11:08 AM

My intention wasn't to say that you were irrelevant -- you and I are only saying the same thing, which is that (as you put it) "Mr. Obama has not been honest about his tax policies." We're just exploring different areas in which he has not been honest.

I was directing my comment to Don, rather, who was talking about the difference that the expiration of the Bush tax cuts would make. That's of little matter, since the plan won't look anything like the real actions of an Obama administration. They'll just take whatever they can from those who have anything, and give it to others.

Posted by: Grim at October 29, 2008 11:26 AM

Here's the post I think Don was talking about.

There is some confusion about this though. From Obama's website he makes two seemingly contradictory statements right next two each other:

Repealing a portion of the Bush tax cuts for families over $250,000 while continuing to leave their tax rates at or below where they were in the 1990s:
o Ordinary Income: The top two income tax brackets would return to their 1990’s levels of 36% and 39.6%. All other tax brackets would remain as they are today.

So, which is it. Will they go up to the levels of the 90's (and be lowered from there) or will they stay the same as today?

Apparently, it's both!

If it is the former, then the lowest bracket will raise, IIRC, from 10% to 15% at which point Obama could lower it to 13% and claim "I lowered taxes on lower income families" even though 13%>10%.

I guess we should just hope which change he'll make.

Posted by: Yu-Ain Gonnano at October 29, 2008 11:37 AM

Well, actually, I never read the post from "American Thinker" that was linked by Yu-ain Gonnano, but he makes the point pretty good, I think.

It's just that this is such a complicated LIE.
See Cass, how easy it is for us ALL to be confused by all this? You think you link to something reputable and intelligent, but it still isn't right, because it's all part of the "Alice-through the Looking Glass" world of Barack Obama.

Obama makes a point about a tax cut, but never mentions the impact of the expiration of the tax cuts of 2001 and 2003, because, of course, they "only went to rich people". It's class warfare, pure and simple, and people are going to swallow it all and find out afterward they have to pay the bill for the "expiration" of the Bush tax cuts. Big government costs big money, and we are going to get and even bigger government than we have now.

And who really knows what Obama will do? Whatever he does, he will be praised for it.


Posted by: Don Brouhaha at October 29, 2008 12:17 PM

FWIW, I don't think your posts are irrelevant. Else why would yours be the first blog I go to each and every day?

Posted by: DL Sly at October 29, 2008 12:25 PM

I didn't mean to sound self-pitying :)

I was (as usual) making fun of myself, Sly. You know me - sometimes my sarcasm doesn't come across well over the Intertubes... or maybe it just wasn't as funny as it seemed inside my head!

Posted by: Cassandra at October 29, 2008 12:31 PM

sometimes my sarcasm doesn't come across well over the Intertubes...

Oh, is *that* what the little :p is all about? And all this time I thought you were just thinking about a pomegranate martini...

Posted by: BillT at October 29, 2008 12:45 PM

And all this time I thought you were just thinking about a pomegranate martini...

Well, there is that aspect of things too...


"Yes, Lisa"

"Is the water warm enough?"

"Yes, Lisa"

"Shall we begin?"

"Yes, Lisa"

[gratuitous pop music reference, for those of you who are beginning to think The Princess has finally gone off her rocker]

Posted by: Cassandra at October 29, 2008 12:49 PM

No, Bill, this is what it looks like when she's thinking about pomegranate martini's -- or afterward....

Posted by: DL Sly at October 29, 2008 01:02 PM

Rather Machiavellian of the Light Worker.

But then, I have been getting emails almost daily now, telling me that Obama is the anti-Christ and to connect the dots.

Hm. While I am not voting for him and am getting the word out, I still need to attend my sub-rosa Defense Against The Dark Arts classes.

I guess those won't be allowed either.

Posted by: Cricket at October 29, 2008 02:05 PM

There's just the most incredibly weird debate going on in a lot of public blogs I frequent, between posters who resent the lying, unsupported implication that Obama plans to redistribute American's wealth, and those who agree that he's openly stated he plans to do exactly that, and why shouldn't he? The weird thing is that both groups equally support Obama. They really don't have any idea why they support him, do they? Other than that he's inspirational. So strange.

Posted by: Texan99 at October 29, 2008 02:06 PM

Trust me, Don, I'm rapidly getting to the point these days when I sit here and place silent bets as to who will be the first to tell me that whatever post I just spent most of the morning on is completely irrelevant, and why :p

Well, this post by you is completely irrelevant since we believe that everything you ever post is always relevant. Now, puzzle THAT out Miss Logical! :P

Posted by: MikeD at October 29, 2008 02:29 PM

*pouring MikeD a jigger of leftover pomegranate martini*

Posted by: BillT at October 29, 2008 05:21 PM

[gratuitous pop music reference, for those of you who are beginning to think The Princess has finally gone off her rocker]

Whaddya know -- it worked.

Now I'm convinced...

Posted by: BillT at October 29, 2008 05:25 PM

I approach BHO question with the notion that he's a white-trash communist moron who happens to have been elected US Senator (thanks a lot you Illinois voters).

Anyone feel like proving either of those labels wrong? Go ahead, give it your best shot; you might be surprised with your own research.

Posted by: Punkindrublic at October 29, 2008 06:21 PM

Most of the people I know that are voting for him are voting for him for 1 of 2 reasons: (a) he's a democrat, and they're a democrat (or think they're supposed to be), and they could care less about the specifics of his proposals, or (b) he's black (or, at least, half-black), and that's the be-all end-all, and they could care less about his policies. *Sigh*. Unfortunately I don't think any of the people voting for him for those reasons are going to change their minds.

I think some independents/undecideds are starting to realize it, though. Lets just hope that it's enough of them.

Posted by: Loefwende at October 30, 2008 12:24 AM

Trust me, Don, I'm rapidly getting to the point these days when I sit here and place silent bets as to who will be the first to tell me that whatever post I just spent most of the morning on is completely irrelevant, and why :p

If nothing else, blogging is good for helping a person acquire a thick skin, if not imperviousness to a growing sense of utter futility!

When I was a little girl my Dad used to accuse me of always giving up too easily. Dad - I'm trying :)

Mark in Irvine will satisfy that craving of yours, in email at least. Speaking of email...

Posted by: Ymarsakar at October 30, 2008 03:20 AM

The Thunder Run has linked to this post in the - Web Reconnaissance for 10/30/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

Posted by: David M at October 30, 2008 11:18 AM

> I truly believe that if a great many Obama voters understood what this man was proposing, they would withdraw their votes.

The very real problem with this is that the words are carefully couched in misleading language. By using the term "bill of rights" they take advantage of the fact that very, very few these days even have a clue about the nature of the Bill of Rights, its contents, or its reason to exist.

I very much remember when 1976 rolled around. Fanfare, fireworks, big bang boom!! 200 years, BiCentennial!! YAY. Parades, TV specials, you name it.

I also remember when 1987 rolled around. Some fanfare, some fireworks, booms. 200 years of the Constitution, hurray. A TV special or two. Notable, and it did call attention to the Constitution. Nothing like the Bicentennial, but it was obvious that we were celebrating something.

Ah, but when 1991 rolled around, no fanfare, no fireworks, nary a mention. A special or two relegated to Saturday evening at 10pm, perhaps. No particular attention of ANY kind called to the 200th anniversary of the Bill of Rights. Go ahead -- find an old TV guide collection from that time period. Look through the newspapers of the time. See just how little attention the 200th anniversary of the BoR got. *I* noticed. I don't think too many others did, though.

So people have no real idea what the BoR is, why it exists, or what, really, it's about. They've heard OF it, so it's got the status of "Good Thing" in their minds. So when FDR or Obama attempts to misappropriate its terminology, you should be VERY concerned. Because it's very much a bait and switch on the American public, and we aren't talking about the American public of 100, or even 50 years ago. We're talking about an American public raised on liberal CRAP from birth. An American public which has no idea what the BoR is or why. And one which can be led by the nose ring straight into the slaughterhouse.

Posted by: OBloodyhell at November 1, 2008 08:19 AM

> Trust me, Don, I'm rapidly getting to the point these days when I sit here and place silent bets as to who will be the first to tell me that whatever post I just spent most of the morning on is completely irrelevant, and why :p

a) You may be wrong
b) They may be wrong
c) Both of you are completely wrong
d) Both of you are somewhat wrong, but not wholly.

Odds are, it's usually Option "D".

And the only way to learn more, is to express a wrong opinion and have someone explain to you in a convincing manner why it is incorrect (I'll trust you to make the distinction between "convincing/incorrect" and "convincing/correct")

For my money, THAT is the point of blogging. To expose yourself and others to ideas and concepts you might otherwise not have the time or inclination to learn about.

I don't mind if no one agrees with me, as long as they can explain and justify, with coherent reasoning from sound basics, why I'm wrong. If they can't do that, they're probably the ones who are wrong. Or, at the least, it's "D", and it's up to them to explain how/where they are right.

Remember what Edison said when someone noted that he'd failed to produce a workable electric light despite several years of efforts:

Results! Why, man, I have gotten a lot of results. I know several thousand things that won't work.
- Thomas Edison -

Posted by: OBloodyhell at November 1, 2008 08:31 AM