In a 2001 interview, Barack Obama said some things that are shocking outside the academy, criticizing the Warren Court for holding that the rights guaranteed by the Constitution are general rather than positive rights:
In the radio interview, Obama delved into whether the civil rights movement should have gone further than it did, so that when “dispossessed peoples” appealed to the high court on the right to sit at the lunch counter, they should have also appealed for the right to have someone else pay for the meal.
Obama said the civil rights movement was victorious in some regards, but failed to create a “redistributive change” in its appeals to the Supreme Court, led at the time by Chief Justice Earl Warren. He suggested that such change should occur at the state legislature level, since the courts did not interpret the U.S. Constitution to permit such change.
“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,” Obama said in the interview, a recording of which surfaced on the Internet over the weekend.
“It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it has been interpreted. [My emphasis]
“And the Warren court interpreted it generally in the same way — that the Constitution is a document of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf, and that hasn’t shifted.
“And I think one of the tragedies of the civil rights movement was that [because] the civil rights movement became so court-focused, I think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that,” Obama said.
…just to take a, sort of a realist perspective…there’s a lot of change going on outside of the Court, um, that, that judges essentially have to take judicial notice of. I mean you’ve got World War II, you’ve got uh, uh, uh, the doctrines of Nazism, that, that we are fighting against, that start looking uncomfortably similar to what we have going on, back here at home.