Redistribute This

"In 1964, law professor Charles Reich wrote a hugely influential article called 'The New Property.' Reich's idea was that some benefits, once conferred by the government, couldn't be taken away without some sort of legal process. Reich's 'benefits' weren't necessarily for the poor. 'When he was a law clerk to Justice Black, Charlie was struck by the injustice that a doctor, licensed to practice law in New York, could lose his right to practice—in this instance because of allegations he'd fought against Franco—without any procedural protection,' says Yale law professor Judith Resnik, who taught the civil procedure class I read Reich's article for in law school. Reich's idea was that a government license could be a form of property, in the sense that, once granted, it shouldn't be taken away without a fair hearing. In 1970, the Supreme Court picked up on this idea in the context of welfare benefits. In a 6-to-3 decision, Goldberg v. Kelly, the court said that the state could not terminate those benefits without giving the recipient a hearing.
"And that's pretty much where the idea of using the federal courts as a vehicle of economic justice begins and ends. There was an effort in the legal academy, in the wake of Goldberg, to establish poverty as a classification, like race, ethnicity, gender, and religion, that draws extra scrutiny from the courts when governments make categorizations based on it. But the Supreme Court didn't go for it. 'Thundering greatness shall forever elude it,' University of Chicago law professor Richard Epstein wrote of Goldberg 20 years after the decision, arguing that its influence proved limited. In the 2001 radio interview, Obama is talking along with another University of Chicago law professor, Dennis Hutchinson, who says, after a passing reference to Goldberg, 'The idea that you can use due process for redistributive ends socially, that will be stable, was [an] astonishing assumption in [the] minds of litigators, and it didn't last very long.' And Obama adds, 'And it essentially has never happened.'"

In Slate, Emily Bazelon explains the legal issue at the heart of the fuzzy charge that Barack Obama is a "redistributor."