Obama on Positive Rights

Conservatives are flagging this audio of Obama:
http://www.youtube.com/watch?v=iivL4c_3pck
And, once again, show that they have no idea what they are talking about.

The Brown v Bd. of Educ. decision was the end result of 40 years of litigation strategy by the Legal Defense Fund to overturn Plessy. Obama notes that the Supreme Court concluded that segregation was unconstitutional and used the schools as an instrument to force the desegregation of all public institutions.
Obama points out that the Court’s other possible route was to conclude more narrowly that education was a fundamental right under the constitution. It should be noted that this might have avoided the necessity of forced bussing and all the problems that it has brought, and would not have forced desegregation of all public institutions.
But this is an essential point of theoretical contention between negative and positive rights. (and this is a constitutional law professor talking). The Positive rights model posits that while the bill of rights is a necessary conscription to State power, Why should a negative document be so limiting as to define the scope of human/natural rights? In fact, the 9th Amendment points to directly this supposition, though the Supreme Court has labeled the Amendment an “inkblot.” And yet the Court continues to find negative rights, such as privacy, through the “penumbra” of the other negative-rights amendments, like the 14th. The court did not go positive right on education because the court was essentially conservative and afraid of the power it might be granting itself. Obama points this out and notes that such a reading is probably never possible. WHICH is a platform of the Republican party!

Then he goes on to describe the existence of the government as a legislative rights creating body. Apparently he wants to declare things “rights” (education has been such a “right” in this country for quite a while now) through the proper use of democracy. Oh the Horror.