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  • It's Not Up to The Court

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    It's Not up to the Court
    by Howard Zinn

    John Roberts sailed through his confirmation hearings as the new Chief Justice of the Supreme Court, with enthusiastic Republican support, and a few weak mutterings of opposition by the Democrats. And in nominating Harriet Miers, Bush is trying to put another rightwinger on the bench to replace Sandra Day O'Connor. This has caused a certain consternation among people we affectionately term "the left."

    I can understand that sinking feeling. Even listening to pieces of Roberts's confirmation hearings was enough to induce despair: the joking with the candidate, the obvious signs that, whether Democrats or Republicans, these are all members of the same exclusive club. Roberts's proper "credentials," his "nice guy" demeanor, his insistence to the Judiciary Committee that he is not an "ideologue" (can you imagine anyone, even Robert Bork or Dick Cheney, admitting that he is an "ideologue"?) were clearly more important than his views on equality, justice, the rights of defendants, the war powers of the President.

    At one point in the hearings, The New York Times reported, Roberts "summed up his philosophy." He had been asked, "Are you going to be on the side of the little guy?" (Would any candidate admit that he was on the side of "the big guy"? Presumably serious "hearings" bring out idiot questions.)

    Roberts replied: "If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution."

    If the Constitution is the holy test, then a justice should abide by its provision in Article VI that not only the Constitution itself but "all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land." This includes the Geneva Convention of 1949, which the United States signed, and which insists that prisoners of war must be granted the rights of due process.

    A district court judge in 2004 ruled that the detainees held in Guantanamo for years without trial were protected by the Geneva Convention and deserved due process. Roberts and two colleagues on the Court of Appeals overruled this.

    There is enormous hypocrisy surrounding the pious veneration of the Constitution and "the rule of law." The Constitution, like the Bible, is infinitely flexible and is used to serve the political needs of the moment. When the country was in economic crisis and turmoil in the Thirties and capitalism needed to be saved from the anger of the poor and hungry and unemployed, the Supreme Court was willing to stretch to infinity the constitutional right of Congress to regulate interstate commerce. It decided that the national government, desperate to regulate farm production, could tell a family farmer what to grow on his tiny piece of land.

    When the Constitution gets in the way of a war, it is ignored. When the Supreme Court was faced, during Vietnam, with a suit by soldiers refusing to go, claiming that there had been no declaration of war by Congress, as the Constitution required, the soldiers could not get four Supreme Court justices to agree to even hear the case. When, during World War I, Congress ignored the First Amendment's right to free speech by passing legislation to prohibit criticism of the war, the imprisonment of dissenters under this law was upheld unanimously by the Supreme Court, which included two presumably liberal and learned justices: Oliver Wendell Holmes and Louis Brandeis.

    It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.

    The distinction between law and justice is ignored by all those Senators-Democrats and Republicans-who solemnly invoke as their highest concern "the rule of law." The law can be just; it can be unjust. It does not deserve to inherit the ultimate authority of the divine right of the king.

    The Constitution gave no rights to working people: no right to work less than twelve hours a day, no right to a living wage, no right to safe working conditions. Workers had to organize, go on strike, defy the law, the courts, the police, create a great movement which won the eight-hour day, and caused such commotion that Congress was forced to pass a minimum wage law, and Social Security, and unemployment insurance.

    The Brown decision on school desegregation did not come from a sudden realization of the Supreme Court that this is what the Fourteenth Amendment called for. After all, it was the same Fourteenth Amendment that had been cited in the Plessy case upholding racial segregation. It was the initiative of brave families in the South-along with the fear by the government, obsessed with the Cold War, that it was losing the hearts and minds of colored people all over the world-that brought a sudden enlightenment to the Court.

    The Supreme Court in 1883 had interpreted the Fourteenth Amendment so that nongovernmental institutions hotels, restaurants, etc.-could bar black people. But after the sit-ins and arrests of thousands of black people in the South in the early Sixties, the right to public accommodations was quietly given constitutional sanction in 1964 by the Court. It now interpreted the interstate commerce clause, whose wording had not changed since 1787, to mean that places of public accommodation could be regulated by Congressional action and be prohibited from discriminating.

    Soon this would include barbershops, and I suggest it takes an ingenious interpretation to include barbershops in interstate commerce.

    The right of a woman to an abortion did not depend on the Supreme Court decision in Roe v. Wade. It was won before that decision, all over the country, by grassroots agitation that forced states to recognize the right. If the American people, who by a great majority favor that right, insist on it, act on it, no Supreme Court decision can take it away.

    The rights of working people, of women, of black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.

    This is not to say that we should ignore the courts or the electoral campaigns. It can be useful to get one person rather than another on the Supreme Court, or in the Presidency, or in Congress. The courts, win or lose, can be used to dramatize issues.

    On St. Patrick's Day, 2003, on the eve of the invasion of Iraq, four anti-war activists poured their own blood around the vestibule of a military recruiting center near Ithaca, New York, and were arrested. Charged in state court with criminal mischief and trespassing (charges well suited to the American invaders of a certain Mideastern country), the St. Patrick's Four spoke their hearts to the jury. Peter DeMott, a Vietnam veteran, described the brutality of war. Danny Burns explained why invading Iraq would violate the U.N. Charter, a treaty signed by the United States. Clare Grady spoke of her moral obligations as a Christian. Teresa Grady spoke to the jury as a mother, telling them that women and children were the chief victims of war, and that she cared about the children of Iraq. Nine of the twelve jurors voted to acquit them, and the judge declared a hung jury. (When the federal government retried them on felony conspiracy charges, a jury in September acquitted them of those and convicted them on lesser charges.)

    Still, knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissidents, we cannot become dependent on the courts, or on our political leadership. Our culture-the media, the educational system-tries to crowd out of our political consciousness everything except who will be elected President and who will be on the Supreme Court, as if these are the most important decisions we make. They are not. They deflect us from the most important job citizens have, which is to bring democracy alive by organizing, protesting, engaging in acts of civil disobedience that shake up the system. That is why Cindy Sheehan's dramatic stand in Crawford, Texas, leading to 1,600 anti-war vigils around the country, involving 100,000 people, is more crucial to the future of American democracy than the mock hearings on Justice Roberts.

    That is why the St. Patrick's Four need to be supported and emulated. That is why the GIs refusing to return to Iraq, the families of soldiers calling for withdrawal from the war, are so important.

    That is why the huge peace march in Washington on September 24 bodes well.

    Let us not be disconsolate over the increasing control of the court system by the right wing.

    The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people. Those words engraved in the marble of the Supreme Court, "Equal Justice Before the Law," have always been a sham.

    No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence-an equal right to life, liberty, and the pursuit of happiness-be fulfilled.
    *Syria becomes the 7th predominantly Muslim country bombed by 2009 Nobel Peace Laureate Barack Obama—after Afghanistan, Pakistan, Yemen, Somalia, Libya and Iraq

  • #2
    QUOTE
    No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. [/b][/quote]

    QUOTE
    Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence-an equal right to life, liberty, and the pursuit of happiness-be fulfilled.[/b][/quote]

    Great. Another looney lefty who thinks the Constitution entitles everyone to his neighbor's wealth.

    And a free lunch to boot!

    Gee. It's a good thing that one of our political parties offers an alternative to the consolidation of wealth and power. [img]style_emoticons/<#EMO_DIR#>/blink.gif[/img]

    Comment


    • #3
      Free lunch?

      Why do auto manufacturers find it more efficient to build cars in Canada than in the US?

      And you know they're actually paying corporate taxes up there, unlike here.

      Sorry, but a health system that doesn't feature a dedicated someone to ask what insurance leeches you're indebted to includes some serious efficiencies.
      Damn these electric sex pants!

      26+31+34+42+44+46+64+67+82+06 = 10

      Bring back the death penalty for corporations!

      Comment


      • #4
        QUOTE(dredbyrd @ Oct 22 2005, 08:52 AM) Quoted post
        Free lunch?

        Why do auto manufacturers find it more efficient to build cars in Canada than in the US?

        And you know they're actually paying corporate taxes up there, unlike here.

        Sorry, but a health system that doesn't feature a dedicated someone to ask what insurance leeches you're indebted to includes some serious efficiencies.
        [/b][/quote]
        dred:

        Free health care for everyone = free lunch.

        And good intentions don't create wealth.

        I'm with you on the incredible inefficiencies of the health insurance industry, but the solution is to put customers in a direct economic relationship with service providers.

        Replacing the insurance companies with a central, political bureaucracy will only make the problem worse.

        Comment


        • #5
          QUOTE(King @ Oct 22 2005, 08:31 AM) Quoted post

          QUOTE
          No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. [/b][/quote]

          QUOTE
          Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence-an equal right to life, liberty, and the pursuit of happiness-be fulfilled.[/b][/quote]

          Great. Another looney lefty who thinks the Constitution entitles everyone to his neighbor's wealth.

          And a free lunch to boot!

          Gee. It's a good thing that one of our political parties offers an alternative to the consolidation of wealth and power. [img]style_emoticons/<#EMO_DIR#>/blink.gif[/img]
          [/b][/quote]


          I'm not completely disagreeing with you here, King, but the current system has skewed the numbers exponentially and it gets worse each year. God forbid the super wealthy in this country have to actually give back a small amount of their billions and billions of dollars to help the super poor have a better chance to function. And I'm not saying we need to give handouts to any person who is poor.
          *Syria becomes the 7th predominantly Muslim country bombed by 2009 Nobel Peace Laureate Barack Obama—after Afghanistan, Pakistan, Yemen, Somalia, Libya and Iraq

          Comment


          • #6
            QUOTE(King @ Oct 22 2005, 08:22 AM) Quoted post

            Replacing the insurance companies with a central, political bureaucracy will only make the problem worse.
            [/b][/quote]

            According to real world examples of single payer, universal health care, you are incorrect.

            Removing the insurance extortion scam will the best thing for our health.

            Ask GM if they consider health costs in Canada, corporate taxes being less than their health costs in the US, to be a free lunch.

            Single payer will end up being the savior of those benevolent "got wealth in a vacuum not a community so it's all theirs" job providers.
            Damn these electric sex pants!

            26+31+34+42+44+46+64+67+82+06 = 10

            Bring back the death penalty for corporations!

            Comment


            • #7
              QUOTE(dredbyrd @ Oct 22 2005, 09:39 AM) Quoted post

              QUOTE(King @ Oct 22 2005, 08:22 AM) Quoted post

              Replacing the insurance companies with a central, political bureaucracy will only make the problem worse.
              [/b][/quote]

              According to real world examples of single payer, universal health care, you are incorrect.

              Removing the insurance extortion scam will the best thing for our health.

              Ask GM if they consider health costs in Canada, corporate taxes being less than their health costs in the US, to be a free lunch.

              Single payer will end up being the savior of those benevolent "got wealth in a vacuum not a community so it's all theirs" job providers.
              [/b][/quote]
              Are you certain that what is best for GM is best for the citizens of Canada?

              Comment


              • #8
                QUOTE(dhaab @ Oct 22 2005, 09:39 AM) Quoted post
                I'm not completely disagreeing with you here, King, but the current system has skewed the numbers exponentially and it gets worse each year. God forbid the super wealthy in this country have to actually give back a small amount of their billions and billions of dollars to help the super poor have a better chance to function. And I'm not saying we need to give handouts to any person who is poor.[/b][/quote]
                If the super-wealthy want to give some (or most, or all) of their money to help others, that is their decision.

                What virtue is involved in taking it from them by force?

                Wealth-redistribution schemes require either large bureaucracies, large armies, or both.

                Usually both.

                The first agency (when a huge amount of wealth is being re-distributed) attracks all the best thugs, opportunists, cheats, frauds, incompetents and lazyasses of the population. And this group appeals to patriotism and justice to employ the second group (the army).

                Comment


                • #9
                  QUOTE(King @ Oct 22 2005, 08:45 AM) Quoted post

                  QUOTE(dredbyrd @ Oct 22 2005, 09:39 AM) Quoted post

                  QUOTE(King @ Oct 22 2005, 08:22 AM) Quoted post

                  Replacing the insurance companies with a central, political bureaucracy will only make the problem worse.
                  [/b][/quote]

                  According to real world examples of single payer, universal health care, you are incorrect.

                  Removing the insurance extortion scam will the best thing for our health.

                  Ask GM if they consider health costs in Canada, corporate taxes being less than their health costs in the US, to be a free lunch.

                  Single payer will end up being the savior of those benevolent "got wealth in a vacuum not a community so it's all theirs" job providers.
                  [/b][/quote]
                  Are you certain that what is best for GM is best for the citizens of Canada?
                  [/b][/quote]

                  What the Canadian government requires of GM is better for Canadian citizens than what the US government requires of them is for US citizens.

                  It just so happens to be better for GM too.

                  Imagine that.
                  Damn these electric sex pants!

                  26+31+34+42+44+46+64+67+82+06 = 10

                  Bring back the death penalty for corporations!

                  Comment


                  • #10
                    QUOTE
                    No Supreme Court, liberal or conservative, will redistribute the wealth of this country, or establish free medical care for every human being[/b][/quote]



                    god, I can only hope he is right.
                    Un-Official Sponsor of Randy Choate and Kevin Siegrist

                    Comment


                    • #11
                      Guess the pittance that Canada spends on its national defense (because we basically guarantee their security) doesn't enter the left-wing calculus here.

                      Typical.
                      And, frankly, it has never occured to me that "winning" a debate is important, or that I should be hurt when someone like Airshark or kah, among others (for whom winning a pseudo debate or declaring intellectual superiority over invisible others is obviously very important) ridicule me.

                      -The Artist formerly known as King in KC

                      Comment


                      • #12
                        QUOTE(dredbyrd @ Oct 22 2005, 10:09 AM) Quoted post
                        What the Canadian government requires of GM is better for Canadian citizens than what the US government requires of them is for US citizens.

                        It just so happens to be better for GM too.

                        Imagine that.
                        [/b][/quote]
                        Are you sure?

                        Just because the government requires something, and GM goes there, doesn't mean it is best for Canada's citizens.

                        Do you think big government and big business ever collude to their own benefit? I mean, it's possible that they could be in collusion, yet at the same time extolling the virtues of their hidden collusion for the common man. No?

                        Shocking thought, I know. But fascism has been all the rage since FDR.

                        Comment


                        • #13
                          GM's figured out how to get breaks from the Canadian gubbermint that are subsidized by the US taxpayer.

                          How novel.

                          And the call at the Lounge is for MORE collusion between big business and big gubbermint - not less.

                          Makes sense to me.
                          And, frankly, it has never occured to me that "winning" a debate is important, or that I should be hurt when someone like Airshark or kah, among others (for whom winning a pseudo debate or declaring intellectual superiority over invisible others is obviously very important) ridicule me.

                          -The Artist formerly known as King in KC

                          Comment


                          • #14
                            QUOTE(Damtoft @ Oct 22 2005, 11:03 AM) Quoted post

                            GM's figured out how to get breaks from the Canadian gubbermint that are subsidized by the US taxpayer.

                            How novel.[/b][/quote]

                            And GM is in big financial trouble, nonetheless.

                            Bonds are rated at junk status now.

                            All we need is for the US government to tie up more capital and direct more private money - and this thing will turn around pronto.

                            Can't wait.

                            Comment


                            • #15
                              GM is the biggest provider of health insurance coverage in the United States. They spend $1500 less per automobile to manufacture in Canada.

                              They'd rather be making cars from what I gather.

                              Want to get rid of the vast majority of contract disagreements between workers and companies? Get employers out of the business of providing health insurance.

                              Typical math for you JD, make it a choice between defense and health. To protect whose wealth? Not yours probably ... there's no need to rob from defense, we're talking about saving money here, not spending more.

                              With the added bonus of decreasing the insurance executive population in the US.

                              Win-win [img]style_emoticons/<#EMO_DIR#>/wink.gif[/img]
                              Damn these electric sex pants!

                              26+31+34+42+44+46+64+67+82+06 = 10

                              Bring back the death penalty for corporations!

                              Comment

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