“...This morning I’m thinking about what Howard Zinn might say about the death of Ruth Bader Ginsburg and the fight for the Supreme Court, even though he died 10 years ago. I’m certain he would want us to fight against a right-wing fascist takeover of the Court and would encourage us to take the fight to the streets, to the ballot, on whatever level and with every tool we could muster. The stakes in this fight are high. It is not too much to say that lives hang in the balance. I also am certain that Howard Zinn would use this opportunity to teach us some history of the Court, to give us some perspective, as he did in 2005 when writing about the John Robert appointment as Chief Justice” -Fred Klonsky’s Blog.
“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 12
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 14th
Amendment called for. After all, it was the same 14th 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 14th 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 12 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.
“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
Howard Zinn
was a historian, political scientist, social critic, activist and playwright,
best known as author of the bestseller “A People's History of the United
States.” He died in 2010.
Published in The Progressive •
November 8, 2005
This is, indeed, a timely reminder.
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