Judge John G. Roberts of the District of Columbia Court of Appeals has been nominated to replace Sandra Day O’Conner as the pivotal member of the Supreme Court. Who is John Roberts? By all accounts, he is a very conservative and brilliant lawyer who will rise to a position of elite power at the age of 50. Most importantly, he is a favored son of the Federalist Society and he will be confirmed.
Did we really think there would be no price to pay for rallying behind a pro-war candidate in the last election? (No, Howard Dean supporters do not get a pass; he was pro-war after the first bomb fell on Baghdad.) Did we really think there would be no price to pay for playing into Karl Rove’s right hand by raising the specter of gay marriage? (No, we cannot ask a movement to stand down but we might have expected just a little political moxie.)
What follows now is as predictable as the salivation of Pavlov’s dogs. The Democrats will give a show of opposition just as the Bush administration gave a show of consultation with the Senate. The inevitable capitulation will be followed by a rationalization that it could have been much worse. Indeed. Then again, it might have been much better.
So now, we are saddled with an overwhelmingly regressive Supreme Court, a court that will define its mission by harkening back to the original intent of the founders. Women had no voting rights in 1787, no less reproductive rights. Minorities had no rights in 1787 and the landless masses shared their disenfranchised status. The Constitution falls silent on the rights to clean air, clean water and global climate change. The Bill of Rights was belatedly added to the document to appease the poor working class stiffs who won the War for Independence.
What were the intentions of our founders?
There is nothing wrong with a love of history. There is nothing wrong with studying the words and thought processes of the nation’s founders.
Attempting to decode their intentions, however, and applying them to a 21st century world is something akin to consulting the ancient art of Tarot to arrive at foreign policy.
As if it were a matter of central importance, strict constructionists (i.e., those who do not “legislate” from the bench) are fond of pointing out that Thomas Jefferson was not present at the Constitutional Convention (he was in Paris serving as ambassador to France). If Jefferson could have known that his absence would have implications more than two centuries later, he would have declined the assignment. Without Jefferson, the republicans (those who believed in and were committed to the principles of democracy) were left with an aging Ben Franklin (with Tom Paine, author of the most progressive constitution in the young nation -- that of Pennsylvania) and future president James Monroe. The opposing aristocrats (i.e. Federalists) were led by Alexander Hamilton, John Adams, a silent George Washington, John Jay and James Madison. The latter would join the party of Jefferson but he was one of three authors (with Hamilton and Jay) of the notorious Federalist Papers.
When the modern day strict constructionists, including John Roberts, look to interpret the intention of the founders, they do not look to the republicans; they look to the Federalists. At the heart of the current and inevitable tipping of the balance of judicial power is the adoption of the Federalist Papers as the definitive subtext to the Constitution.
The Federalists (like the Federalist Society today) were not interested in democracy or securing individual liberties. They were interested in forming a bond between government and the wealthy elite. To that end, they established a national bank. They grudgingly conceded the lower house to a direct electoral process, provided only white men with substantial holdings in land could vote. Members of the upper house were appointed by the state legislatures and the president was selected by the Electoral College. Hamilton proposed that the Senate and the President be selected for life.
What were the intentions of the founders?
The Federalist Papers are no more a political treatise than the Communist Manifesto. They are collection of ideas for establishing and maintaining an economic ideal. In the hearts of the Federalists, that ideal is the protection of wealth, the protection of property, and the perpetuation of the ruling class.
I do not believe this court will reverse Roe V. Wade. If they do, they will further divide a polarized nation and we will begin the long process of passing a constitutional amendment. Rather, they will limit a woman’s right to choose by increments and the feckless Democrats will hardly register an objection. They will not outlaw gay marriage though they will likely uphold a state’s right to discriminate in any manner they choose. They will allow school prayer and religious displays on public property to appease the religious right. They will kill affirmative action and attempt to bury it forever.
The court’s primary function will be to strike back government regulation of private business at every turn. Anti-trust law is dead. Environmental law is rendered toothless. Regulation of essential industries -- energy, water and food -- is barely breathing. Security reigns supreme over individual liberties and the only rights that count are corporate.
I hope I am wrong. I am no happier with the state of our judiciary than the most dedicated judicial activist, yet I cannot escape the sense that we all share responsibility. We abandoned our principles. We sold ourselves short. Ralph Nader was right. At the critical moment (perhaps the most critical time we will ever encounter), we failed to push for a candidate who opposed the war. By allowing the opposition candidate to get by with parsed words and nuanced policies, we failed to give the people a reasonable alternative.
In our hearts, we know the truth. When every political argument ended with: Well, he’s not George Bush, we knew it was over. It was over because we did not believe -- and even then, we almost carried it.
Those who abandon principle for expediency do not deserve to prevail.
If we had stood on principle, if we had demanded an end to the war, we may still have lost but we could have held our heads high for the struggle ahead. On the other hand, we might have won a landslide.
As it is, wrap it up and move on. The more they push their regressive-oppressive agenda, the stronger the opposition will grow.
We still have a war to fight.
Jack Random is the author of Ghost Dance Insurrection (Dry Bones Press) the Jazzman Chronicles, Volumes I and II (City Lights Books). The Chronicles have been published by CounterPunch, the Albion Monitor, Buzzle, Dissident Voice and others. Visit his website: www.jackrandom.com.
Other Articles by Jack Random
Wind: The Inevitable End of the Iraqi Occupation