>>> "Nathan Newman" <nathan.newman at yale.edu> 05/12/99 05:57PM >>>
-----Original Message-----
From: Charles Brown <CharlesB at CNCL.ci.detroit.mi.us>
To: lbo-talk at lists.panix.com <lbo-talk at lists.panix.com>
>People and liberation movements and those (most) that represent the rule of
>the ruling class. For example, the Bill of Rights, the 13th, 14th, 15th,
>19th and other Amendments to the Constitution have a lot of value for
>progressive struggle. They are the opposite of those laws you list above.
An >important thing a leftist in law school should do is draw this line.
It was the 14th Amendment "Due Process" clause that was used to give corporations "personhood" under the Constitution and was used to strike down minimum wage, child labor, and worker safety laws by the Supreme Court in the name of corporation's due process rights. It could not prevent the resegration of the South and the return of all-white rule in that region.
Charles: Yes, and it is the 14th Amendment "equal protection" clause that the current Supreme Court has used to strike down affirmative action as socalled reverse discrimination.
Also, the 5th Amendment has protection of "private property."
Like anything else, law has to be analyzed as contradictions, that is dialectically. These laws are mixtures of progress and backwardness. If you are saying the statues above are onesidedely backward , I disagree. In fact, the one historical misuse of due process you mention is not the main impact of due process.
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What ended first the so-called "Lochner Era" pure corporate rights era and later Jim Crow were not legal changes but the mass mobilization of unions and civil rights activists.
Charles: This is true. But the movement demands are crystallized as legal changes. These movements formulate their goals as laws.
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Law in the abscense of continual mass mobilization of the working class and communities protects almost nothing; without that mass mobilization, the corporate elite will appoint its judges, twist the law to its purposes, and use the exact words we fought for in those laws to fuck the people.
Charles: I all ready said this. Your argument here does not contradict what I said , nor refute it. Of course, just like right now, the civil rights law gains are being eroded because the movement has waned.
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Just look at the wording of the anti-affirmative action Prop 209 in California. It sounds like a Civil Rights law and with a different set of judges might be enforced as such, but with a rightwing tilt to the judiciary, those words just mean oppression, just as the words of the 14th Amendment were used at the turn of the century by the Supreme Court to oppress workers.
Charles: I already said this in my original argument. The words of the 14th Amendment are perverted right now in the racist Berger/Rehnquist Court's use of the 14th Amendment equal protection clause to strike down affirmative action. Your analysis does not take account of contradiction, as mine does.
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>As I said, the UN centered law is very progressive relative to the U.S.
law. >The international law pertinent to the war on Yugoslavia is
progressive in >this context. Another example is the UN Convention for
Prevention and >Punishment of Genocide. It is more progressive than U.S.
law.
The Soviet Constitution was more progressive in words than US law. So what?
Charles: A lot of what. The Soviet Union was a more progressive country than the U.S.
What exactly do you see as the role of law in the progressive movement ?
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Law only has meaning in how it is enforced, and the UN "laws" are enforced about the same way the Sermon on the Mount is enforced. It sounds nice on Sunday, but on Monday it's back to business.
Charles: So, do you think the UN laws should be enforced in the Yugoslavian situation ?
Are you saying that the UN laws shouldn't be on the books , because they are not enforced enough ? Are you saying that the Nurembourg trials should not have been the basis for establishing laws ? The U.S. civil war ? What exactly is your position having laws ? Don't have them if they can't be enforced all of the time ?
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>Charles: You don't argue that the government can be trusted. You argue that
>freedom is a constant struggle, and the government will not do right unless
>the People are vigilante and ultimately are self-governing and take it over
>from the bourgeoisie. In 1999 , the U.S. government is very unlikely to do
>something militarily correct, because it is the major imperialist power.
I agree, just as it is unlikely to do right by tax policy or health care policy or any other policy. But because we are in constant struggle, whether by health care activists on health issues, or human rights activists on military policy, we occasionally do get policies even in the military sphere that have a progressive character.
Charles: LAWS are pretty much the same as "policy" in this argument. Just as the object of struggles is to establish good "policy" it is aimed at establishing good law, knowing all the while that the "establishment" of policy or law is subject to constant attack by the ruling class.
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Rarely, I agree, and more rarely than on domestic policy, but in the case of Kosovo, a lot of human rights agitation for over a decade finally forced the issue onto the agenda. Before we went into Kosovo, I can point to a whole list of left human rights folks pushing for intervention; I doubt those opposing the intervention can find many business magazines or rightwing forces advocating intervention. Some of the rightwing has signed on in support now that the conflict has started in the name of "maintaining US credibility" but it was OUR FOLKS struggling who pushed this issue onto the political agenda.
Charles: "OUR FOLKS" , correct thinking leftists, would never argue for United States intervention in this era when the U.S. is the main political economic evil in the world. This is to misunderstand who is the main enemy of the working class in the world today.
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>If you want the true
>source of murder and oppression based in Europe, don't look at NATO, look
at
>the World Information Property Organization (WIPO).
-Charles: There is some good law in this area in the New World Information -Order . I'll have to look at the UN Conventions. The National Lawyers Guild -has a standing committee in this area.
The New World Information Order rules are again nice words passed by the UN with no enforcement mechanism. The WIPO and Trade Related Information Policy (TRIPs) parts of the GATT are enforceable and are enforced every day.
Charles: But in this argument, the "nice words" are also statements of the best political position or "policy". All your positions are just "nice words". I really can't understand what you are getting at. Through most of its history, all left theory has been mainly "nice words" with little "enforcement mechanism". The establishment of the "nice words" in UN treaties is a step beyond "nice words" with no "official' recognition whatsoever.
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I guess I have a positivist definition of law. Law is what the state is governed by and the way power is exerted over the people. If "laws" like most UN law does not restrain that government power, it is not law but merely religious catechism.
Charles: Yes, I can see that you are articulating a version of the doctrine of "legal realism", a school of thought from Yale Law School. But , in this extreme form it wipes out the reform achievements of the whole history of the progressive/left/socialist movement. It is extremely onesided. You don't have a dialectical approach, which allows for analysis of contradiction. Your approach would wipe out the hope for ever winning anything short of total victory all at once. It robs the movement of the hope it gains from its victories of the past ( law being just the form in which these victories were crystallized and made partially enforceable).
By the way, I use a level of your positivism/legal realism in my argument for outlawing the KKK and Nazis. In other words, the First Amendment has not in fact and reality protected the Left (check out the key cases such as _Schenk_ ,_Whitney_, _Dennis_, et al.). The First Amendment has been "nice words" , in your teminology above, without enforcement to protect the Left at the critical times. But , I don';t argue that we shouldn't have the First Amendment.
>God, when did leftists become law-and-order types arguing "the law says so"
>is an adequate response to a moral challenge to the law.
-Charles: Goddamn, does it not occur to you that the Left has always been
-struggling to institute laws ? How do you think the victory of the Civil
War
-was preserved but especially in Constitutional Amendments ? Don't you
-realize that the working class victories of the Thirties were codified in
-the New Deal laws ?
I've noted how unsuccessful the 14th Amendment was in preserving most of the victory of the Civil War.
Charles: Wrong on "most". You gave a relatively small side shortcoming in the history of the 14th Amendment. You did not describe the many ways in which the 14th Amendment has been used against racism, ENFORCED against racism. Brown v Bd of Educ. REVERSED _Plessy_. You didn't come anywhere close to describing the history of the enforcement of the 14th Amendment against racism and for positive aspects of due process. For example, the whole liberal limitations on the police from the Warren Court are based on due process, Miranda warnings and all that.
You grossly misrepresent when you characterize the 14th Amendment as a failed progressive law. The opposite is true.
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It mostly upheld the victory of the capitalist class in expanding the power of corporations over the whole country.
Charles: This is completely wrong. First , capitalist power reigned throughout the whole country from the beginning of the country. The personhood of the corporation was not critical in universalizing capitalist rule. Second, this dimension of the 14th Amendment is not it main impact.
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Of course laws matter; they are the contours of struggle, the line marking the DMZ between class forces. Like any such deal, it encourages stability and structures the conflict so the society can progress in other areas even as the struggle continues.
Charles: This is not clear. What do you mean ? Sounds like wishful thinking that "society can progress" in other areas. It is also, mystification. You seem to be saying there is progress in areas that the law doesn't speak to by somekind of diversion from the laws that are passed, but in the areas explicitly covered by the "nice words" laws , there isn't progress.
By your main argument here, laws do NOT matter.
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But don't talk to me about how the law has preserved the struggles won by unions in the 1930s. One out of 20 workers are fired in every goddamn labor struggle, strikers are replaced, gutting the so-called right to strike, almost 50% of workers -- agricultural, "supervisory", independent contractor, subcontracted - are barred from organizing into any kind of union against their employer. Elections under the NLRB can take years, sometimes almost a decade. A lot of labor activists would trade off all the law we have for the "lawless" period that existed before the passage of the Wagner Act and its subsequent anti-labor amendments.
Charles: Of course, the erosion of the protection of the 1930's laws was not instantaneous. So, you are wrong that they were no protection at all Before the Wagner Act, unions were criminal conspiracies under the law. We have not returned to that. Do you think that the movement of the 1930's should not have had as goals changing the law ? Nowhere in your argument do you say what should be the object of the movements. What non-legal form are you saying movement reforms should take.
The fact that the legal gains of the 1930's have been eroded does not al all refute my argument on this thread. I have always said the laws won by the movement must be defended by continuing struggle. The weakening of that protection because of the weakening of the movement does not mean we should not have legal goal for the movement when it revives.
Your extreme , basically ultra-leftist, all or none, all revolution /no reform position doesn't make sense. Basically all REFORM is in the form of legal changes within the existing system. So your denial of a role for winning laws within the current system is denial for a role for reforms, an ultra-leftist position. The role you describe for law above - a DMZ - is self-contradictory to your own argument. DMZ would just be "nice sounding words."
>Charles: The idea of lawless and orderless socialism is an anarchist >inspi
red caricature of the Left, used by the bourgeoisie to discredit the >Left.
The bourgeois legal system, and more and more. We aim to institute a
>socialist legal system, don't you know ? The socialist state doesn't
whither >away until there is no more capitalism in the whole world.
Don't get me wrong. I am an absolute believer in the rule of law, especially under any socialism I imagine. But the rule of law is like what Gandhi said of Western Civilization, "We should try it some time."
Charles: The idea that the Left proposes we will leap into a complete rule of law from a state of no rule of law is not very realistic.
In my opinion, your argument here is ultra-leftism, ultra-revolutionist. But then your general outlook on the lists seems to move toward liberalism.
What role do you see for reforms and what form do you think reforms should take, if not the form of laws ?
Charles Brown