President Obama has renominated Goodwin Liu, a University of California at Berkeley law professor, to the notoriously activist (and often-overturned) Ninth Circuit Court of Appeals. Previously nominated in 2010, Liu is so controversial that he could not even command a vote in an overwhelmingly Democratic Senate that habitually rubber-stamped liberal judicial nominations. He may be too much of a judicial activist even for such a reflexively activist court.
Why would Obama risk undermining his attempt to position himself as a centrist for such an activist nominee? After all, the Ninth Circuit isn’t exactly lacking in left-wing jurists. The best explanation is that Obama doesn’t see Liu as a dangerous activist but as a kindred spirit.
This is because Liu advocates redistributing wealth through the courts. In an article in the Stanford Law Review, Liu questioned “the prevailing view … that issues of poverty and distributive justice should be resolved through legislative policymaking rather than constitutional adjudication.” In other words, Liu sees welfare programs as mandated by the Constitution rather than controlled by the people through their elected representatives.
Liu subscribes to the progressive impulse to transform, through creative construction, the liberty-protecting Constitution into a document of “positive” economic guarantees. This represents a dramatic shift in the purpose of the Constitution. Under this view, safeguarding individual liberty is less important than constitutionally mandating economic benefits to certain chosen constituencies. The taxpayer is left to pick up the tab run up by unaccountable jurists.
By advocating what he calls the “judicial recognition of welfare rights,” Liu evinces a judicial philosophy that the Founding Fathers would not recognize. In The Federalist Papers, Alexander Hamilton justified the authority of courts to void laws in conflict with the Constitution as a means of enforcing constitutional limits on government. Liu sees courts as having a roving authority to mandate “redistributive justice” under the guise of the Constitution, which would dramatically expand government, including the power of the courts.
By creating a right to receive taxpayer-financed transfer payments, Liu’s jurisprudence would place the pockets of the people at the mercy of judicial ambitions. Of course, an important aim of the Constitution was to prevent what James Madison, in The Federalist No. 10, called “wicked projects,” which included attempts to equalize property.
Madison, though, was concerned with unjust legislative initiatives that undermined the rights of private property and individual liberty, but could have scarcely contemplated that the federal courts would append such measures to the very Constitution designed to prevent them.
Liu’s theory represents an attempt to provide philosophical cover for judges to indulge their political preferences in a way that enshrines those preferences into the Constitution and imposes them on an unwitting American public. This transforms a government of laws into a government of men like Liu.
In this respect, Liu is on the same intellectual page as Barack Obama. Even though Hamilton described courts as having no authority over “the strength or of the wealth of the society,” Obama does not, in principle, object to courts acting in areas outside the scope of their traditional duties, such as by redistributing wealth.
In a public radio interview in 2001, then-state Senator Obama opined about effecting “redistributive change” through the courts, noting that the Warren Court “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.” As a result of the experience during the Warren Court era, Obama was not “optimistic about major redistributive change through the courts,” but this was not due to any philosophical objection but instead to practical realities—the “court’s just not very good at it and politically it’s hard to legitimize opinions from the court in that regard.”
Obama clearly supported such “redistributive change,” but argued that the focus should be on putting “together the actual coalitions of power through which you bring about redistributive change.” Still, he made clear this was a preference born of practical necessity. When it came to using the courts to redistribute wealth, Obama, as a matter of first principle, maintained that “theoretical justifications for it [exist]. Any three of us sitting here could come up with a rationale for bringing about economic change through the courts.”
Liu represents precisely the type of jurist that Obama envisioned when he lamented the insufficient radicalism of the Warren Court. Obama dismisses the Founders’ Constitution as a charter of “negative liberties.” The Founders established prohibitions on government’s power to protect freedom, but their handiwork is unsatisfactory to Obama because it “doesn’t say what the federal government or state government must do on your behalf.” Liu’s faculty lounge theorizing provides a vehicle to bring about the constitutional reformulation Obama seeks.
The desire of Obama and Liu to reinterpret the Constitution into a mandate for so-called “positive rights” obscures that there is already a “positive” aspect of the Constitution—but this lies not in redistributionist economic guarantees that must be provided to individuals by government (at the expense of other citizens), but in what duties government must undertake, such as providing for the common defense, that benefit the public as a whole.
The Constitution’s creators saw a free society as one in which equality of economic outcomes is impossible—the “faculties” of acquiring property can never be equal because they involve an individual’s natural talent, discipline, initiative, and capacity for risk-taking. The Founders rejected providing mandates for wealth redistribution in the Constitution because such mandates necessarily erode the individual liberty that the document was designed to safeguard.
By bemoaning the failure of the Warren Court to effect, through unbounded interpretive creativity, a transformation of the very nature of the Constitution, Obama reveals himself to be an anti-Madisonian—one who views government’s ability to enact “redistributive justice,” rather than to protect individual liberty, as the primary measuring stick of our political institutions.
This is why Obama continues to stand by Liu. From his perspective, Liu is fighting the good fight of constitutional wealth—a fight that Obama himself shied away from as a state senator because he felt that his redistributionist efforts were better directed toward the political sphere. At the same time, Obama’s continued support for Liu shows that his attempt to pose as a centrist is, in fact, quite audacious.