Monday, July 11, 2005

From the inception of this nation, an undercurrent--sometimes a powerful undertow--of disagreement has tugged at us about the wisdom of giving ordinary people too much power, and nowhere has that conflict been more apparent than in the Supreme Court. The Federalists felt that Hamilton had it right when he told Washington, "Sir, your people is a beast." So they were gratified when a unanimous 1803 Supreme Court decision in the case of Marbury v. Madison took power from the legislature, the people's representatives, and gave it to the Supreme Court. The constitution had not granted that court the power to decide which laws were or weren't constitutional. The Court, under the Federalist Chief Justice Marshall, decided that the Supreme Court DID have that power. In other words, the court rewrote the constitution by fiat. Jefferson was horrified. He wrote Abigail Adams that if the court was filled by the wrong people, "it would make the judiciary a despotic branch."
But for better or worse, the Court prevailed on this issue. It surely did lasting damage to our democracy, for example, when it ruled that corporations be granted protection as "persons" under the fourteenth amendment. The fourteenth was written after the Civil War to grant blacks the rights of citizenship, but at the end of the nineteenth century, the Court allowed corporations to hijack the amendment, gaining rights as individuals that were corrosive to our economy and our democracy.
Since the New Deal era, on the other hand, the Court has often affirmed the rights of ordinary citizens and so gained the support of political liberals. Many of us are puzzled, therefore, and even outraged, at right-wing carping about "judicial activism". And indeed, if the courts were packed with conservative judges, no doubt right-wingers would zip their lips on this issue. In the meantime, though, they want to roll back the judiciary to pre-Marbury v. Madison days. For example, the Post-Dispatch printed a letter that said, in part:
When the Constitution in its original meaning does not speak to an issue (and that includes most of the great social and moral issues of our day), then the issue belongs in the Legislative Branch, where we the people can debate the matter and make decisions. As things now stand, we the people have to sit and wait for the latest edict to come down from nine unelected, in-for-life individuals to determine how millions of Americans will live their lives.

If Bush succeeds in appointing two more Scalia-style judges to the Court, we lefties will be singing this letter writer's tune. And I'm not particularly worried about abortion, either. Call me a shortsighted if you will, but abortion is a minor issue. In fact, if Roe v. Wade were reversed, Republicans would suffer. Their main snare for suckering people away from the Democrats would evaporate.
No, what concerns me is the damage that a more pro-corporate Court could do. Even more potentially disastrous than that are the fascist leanings of Gonzales and other right-wing ideologues. Thomm Hartmann, in a Common Dreams column titled "Supreme Court--Media Ignores Possible 'Fascist' Play" warns of something far more dangerous than abolishing the right to abortion:
An administration that can use the final imprimatur of the Supreme Court to "disappear" dissidents, corral Democratic Party campaigners into "free speech zones" with guns and bayonets, and declare a perpetual "war on terror" to prevent any investigations of its failures and crimes doesn't need to worry about the politics of abortion. Or John Conyers snooping into voting machine irregularities in Ohio. Or any other political debate, for that matter. ...
Thus, the nomination of Gonzales, or another candidate with strong fascistic leanings but no clear abortion record, will probably be trumpeted in the mainstream corporate media as a triumph of "moderation" on the part of Bush ....
In fact, it could mark the end of our 200+ year American experiment in democracy.

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