[Marxism] Howard Zinn: Our rights aren't up to the Supreme Court

Walter Lippmann walterlx at earthlink.net
Sat Nov 12 04:57:45 MST 2005

Zinn is very popular here in Cuba, and rightly so! His columns are very
frequently translated by Mexico's LA JORNADA or the Spanish REBELION 
websites and are reprinted here in the Cuban media. Howard Zinn took a
political position critical of Cuba's tough self-defensive measures taken
in 2003, arresting and criminally charging oppositionists who had taken
payment from the United States, and executing three armed hijackers at
the time Washington was invading Iraq. Cuba's media, while distressed
at the criticism from some on the political left, didn't write people
like Zinn off, or condemn them. His PEOPLE'S HISTORY OF THE UNITED 
STATES was translated and published here in a complete, unabridged
version. His play MARX IN SOHO was produced and performed here. Zinn
was invited to the launching of his book and has been here several
different times. 

Frankly, I'd be surprised if Zinn's latest column doesn't get quickly
reprinted widely, including here in Cuba in the near fugure. Zinn's
commentary takes up the numerous ways the venerated Constitution of
the United States of America, a country committed to overthrowing the
Cuban system and imposing a US-style system on this island, has been
used to either deny the most basic rights like from voting to abortion
to Blacks, women and working people in the country for whom it provides
the legal framework for "law and order".

This came to my attention from Portside, the wonderful daily news
service of the Committees for Correspondence for Democracy and

Walter Lippmann, CubaNews

It's not up to the Court

By Howard Zinn
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.
Then, after the far right deemed Harriet Miers insufficiently
doctrinaire, Bush nominated arch conservative Samuel Alito 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

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 or the ones to come on
Judge Alito.

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

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.

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