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Justice never an aspect of the constitution

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  • Kwaku Bandele
    It s Not Up to the Court http://progressive.org/mag_zinn1105 By Howard Zinn The Progressive November 2005 Issue John Roberts sailed through his confirmation
    Message 1 of 1 , Oct 28, 2005
      It's Not Up to the Court
      http://progressive.org/mag_zinn1105
          By Howard Zinn
          The Progressive

          November 2005 Issue

          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 right-winger 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
      Guantánamo 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, and 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 UN 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.

          Howard Zinn is the co-author, with Anthony Arnove, of Voices of a
      People's History of the United States.



      Kwaku Bandele
      Media Representative
      Afrikan Sistahs Doin Tha Thang....sistahs ain't playin!
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      " We don't want a piece of the american pie, we want to burn it to the crust" Kwame Ture

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