[Peace-discuss] Howard Zinn, about justice.

[Morton K. Brussel]

Aux armes les citoyens!
Zinn's take on the importance of nominations to the Supreme Court.  -- 
mkb

Published in the November, 2005 issue of the Progressive
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.

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

© 2005 The Progressive


-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.chambana.net/cgi-bin/private/peace-discuss/attachments/20051021/8a304f33/attachment.html