forwarded from Jeet

[Nathan Newman]

The rule of law is different from giving unelected judges the ability to
overrule democratic institutions without any accountability.  I'm not even
against all judicial review -- Hugo Black is my personal favorite Justice
because of his balance between enforcing what the Constitution said in the
text and avoiding making up new rights like his liberal buddies like Brennan.
But I also favor tough nomination fights where justices are grilled on every
detail of their opinions before they are appointed and liberal use of
impeachment whenever two-thirds of the Senate don't like a judge's opinion,
which is all the judicial independence we need.  The National Lawyers Guild
was born partly to support Roosevelt's court packing plan in 1937.  They also
called for a constitutional amendment that year to remove the Court's ability
to overturn any social policy passed by Congress.

I like checks and balances, so having some power in the courts is not
terrible, but I want them as democratically accountable as possible.

-- Nathan Newman

----- Original Message -----
From: "Charles Brown" <CharlesB at cncl.ci.detroit.mi.us>
To: <lbo-talk at lists.panix.com>
Sent: Thursday, January 17, 2002 4:39 PM
Subject: forwarded from Jeet

forwarded from Jeet

Michael Perelman <michael at ecst.csuchico.edu>
Subject:

^^^^^^^

CB: The bourgeoisie will not stop being judicially active because the left
and working class stop activism through the courts. So, the left must remain
active through the courts in self defense.

Also, I find that most who oppose judicial activism or legal activism,
usually have some program that ultimately depends upon laws in some way. Few
leftists, except consistent anarchists,  conceive of long term , widespread
vigilantism as their program. How would the movement's gains be maintained
without a platform for laws ?  Don't laws imply courts ? This seems a big gap
in all non-anarchist, left , anti-judicial theories.

Are Nathan or others proposing abolition of the rule of law ?

Lets put it another way. We win the Civil War, a form of non-judicial
activism. What do we do then ? Not make the abolition of slavery a law in the
13th Amendment ?  Not make equal protection the law in the 14th Amendment ?
Once you make them laws, what do you do ? Not seek to enforce the laws in
courts ?

Lets say we win the union at GM in 1936 ? What do we do, just continue to
depend on sitdown strikes to defend our victory ?

What's the non-legal activist long term program and strategy ?

^^^^^^^^

Doug,

  I don't think reactionaries have just used the courts to block political

reforms. Rather, there is a tradition of conservative judicial activism
which has been rather creative in using the law to enforce ruling class
ideas. Think of the way a decision like Plessy Vs. Ferguson conjured out
of
nothing the idea of "seperate but equal" as a rationale for Jim Crow. (As
I
understand it, Jim Crow was itself a novel phenonomeon in the 1870s and
1880s). Another example would be how conservative justice applied the 14th

amendment to protect corporations, despite the fact that this goes against

the "original intent" of the law. My point is that liberals and leftist
don't need to masochistically berate themselves for judicial activism,
when
in fact the larger history of the U.S. is that the law is usually on the
side of the ruling class.

 Jeet