So, what do we do instead -- mud wrestling?
> -----Original Message-----
> From: lbo-talk-bounces at lbo-talk.org [mailto:lbo-talk-bounces at lbo-talk.org]
> On Behalf Of Nathan Newman
> Sent: Wednesday, November 17, 2004 2:48 PM
> To: lbo-talk at lbo-talk.org
> Subject: [lbo-talk] Why I Hate Courts-- or how judicial review destroyed
> thecountry
>
> Over time, I've discussed why I think progressive use of the courts is
> dangerous and why judicial review has historically been one of the worst
> evils of our country's history.
>
> I thought I would distribute a link to a new paper I co-wrote for the
> Brennan Center for Justice, which is called
> "A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th
> Amendments"
> http://www.brennancenter.org/resources/ji/ji5.pdf
>
> The overall theme is that the present court is using judicial review to
> attack a range of federal civil rights laws and are replicating the
> history
> fromt he 19th century when the courts killed Reconstruction. Here is an
> excerpt:
>
> HOW THE KLAN AND THE COURT KILLED RECONSTRUCTION
>
> The Civil Rights Act of 1875 was the high-water mark of Reconstruction
> legislation. In less than two years, Reconstruction would be over and
> white
> supremacy would be firmly entrenched in the South for almost another
> century.
>
> The ultimate bulwark of white supremacy was violence. A vigorous federal
> response had beaten back murder and terrorism before the 1872 election,
> but
> by
> the 1874 and 1876 elections, scores of blacks and allied white Republicans
> lay
> dead as anti-civil-rights Democrats returned to power throughout the
> South.
> Federal prosecutions dropped off sharply, and the cases that were brought
> became harder to win because of interference from southern officials and
> private
> individuals. State governments systematically harassed and arrested
> federal
> witnesses
> to deter their participation, even convicting them of perjury for
> testimony
> given at federal trials. Federal witnesses were murdered quite regularly.
> The
> bloodbath climaxed with the disputed presidential election of 1876, with
> most
> southern states reporting two sets of results. The dispute was resolved by
> Republicans' agreement to end Reconstruction.
>
> What had turned federal prosecutors' optimism of 1872 into their surrender
> of
> 1876? The severe depression beginning in 1873 bears some blame for
> shifting
> federal attention away from racial violence. However, continuing
> indictments by
> the Justice Department and passage of the Civil Rights Act of 1875 show
> that
> many national Republicans were still committed to civil rights. Their
> commitment
> was finally destroyed by the Supreme Court's determined opposition
> to equality. When the Court overturned Reconstruction statutes and allowed
> terrorists to go free, it not only hamstrung the federal government but
> also
> signaled that anyone fighting for civil rights in the South would die.
> Denied any
> realistic hope of contesting elections in the South, the Republican Party
> gave up
> on Reconstruction.
>
> THE SUPREME COURT'S CAMPAIGN
> AGAINST CIVIL RIGHTS
>
> The Supreme Court manifested its opposition to Reconstruction as early as
> a
> pair
> of 1866 decisions removing professional restrictions on ex-Confederates.24
> But
> the lasting damage started in the 1870s and continued through the early
> 20th
> century, as the Court eviscerated both aspects of the New Birth
> Amendments:
> it
> refused to enforce the amendments' self-executing aspects to protect civil
> rights
> (though it increasingly deployed them to invalidate federal and state
> regulation of
> business); and it struck down legislation passed under the amendments'
> enforcement
> clauses.
>
> Nothing was more critical to the enforcement of civil rights than the
> ability of
> federal courts to take jurisdiction when racist state courts failed to
> protect blacks.
> The Supreme Court struck its first major blow against that principle in
> 1872. In
> the Rhodes case six years earlier, Justice Swayne had upheld the provision
> of the
> Civil Rights Act of 1866 that permitted removal of civil and criminal
> cases
> from
> state courts that did not permit blacks to sue and testify on the same
> terms as
> whites. In the new case before the full Court, the same discriminatory
> Kentucky
> statute that had been at issue in Rhodes was invoked to bar two black
> witnesses
> from testifying against two white men charged with killing a blind and
> elderly
> black woman. The Court's majority held that the removal provision did not
> apply: the witnesses had no rights at stake, and the victim's rights were
> not at issue
> because she was dead. Justice Bradley's dissent (joined, not surprisingly,
> by
> Swayne) noted that the Court's construction put "a premium on murder": a
> minor assault would trigger the statute, but federal jurisdiction would
> "cease
> when death is the result." While not a constitutional ruling, this macabre
> statutory interpretation foreshadowed the coming assault on the New Birth
> Amendments themselves.
>
> The next and more well-known step in the campaign against civil rights was
> an
> odd decision known as the Slaughter-House Cases - odd because it dealt not
> with
> blacks' civil rights but with white butchers' economic rights. New Orleans
> had
> granted a monopoly to a privately owned slaughterhouse. The city's
> butchers
> claimed that this abridged their privileges and immunities as United
> States
> citizens, violating § 1 of the 14th Amendment. The Court held that the
> government-imposed monopoly did not violate any protected privileges or
> immunities, and it could have stopped there. However, the majority also
> declared
> that the Privileges and Immunities Clause did not require the states to
> respect the
> Bill of Rights, disregarding the New Birth Framers' explicit intention to
> overrule
> Barron v. Baltimore.
>
> As Judge McConnell argued before ascending to the federal bench,
> Slaughter-
> House radically repudiated Reconstruction, replacing the New Birth
> Framers'
> vision with a "southern, Democratic theory of states' rights." The
> decision
> reflected the background of the justices in the majority, who were either
> proslavery
> Democrats or conservative Republicans from the party's pro-business
> wing. At one swipe, these justices destroyed much of the 14th Amendment's
> self-executing force. Members of Congress who had adopted the amendment
> condemned the Court's interpretation of their work as a rank betrayal.
> Swayne,
> again among the dissenters, agreed with them. The decision "defeats . . .
> the
> intention of those by whom the instrument was framed and of those by whom
> it
> was adopted." Nor should the extent of the damage be underestimated; the
> Court "turns, as it were, what was meant for bread into a stone."
>
> Formally, Slaughter-House dealt only with whether courts would enforce the
> Bill of
> Rights against state governments in the absence of congressional
> legislation. But
> the decision clearly hinted that the Court would be hostile to
> Reconstruction
> statutes when they came before the justices. If, as the dissenters
> claimed,
> § 1
> required the states to obey the Bill of Rights, then § 5 would "bring
> within the
> power of Congress the entire domain of civil rights," a proposition the
> majority
> found absurd.29 Swayne's closing words are chilling in the light of
> subsequent
> history: "I earnestly hope that the consequences to follow may prove less
> serious
> and far-reaching than the minority fear they will be."30
> Swayne was tragically prescient. When political violence erupted again in
> 1873
> and the Justice Department began bringing new indictments, federal judges
> read
> the Slaughter-House tea leaves and ruled that they had no jurisdiction.
> Several
> judges held civil rights statutes unconstitutional. In response, the
> government
> suspended civil rights enforcement until the Supreme Court could rule on
> the
> constitutionality of the Enforcement Acts. The violence of 1873 included
> the
> Colfax Massacre, and, as previously noted, the 1874 elections - held
> during
> the
> federal government's enforcement hiatus - returned racist governments to
> several southern states. The suspense, such as it was, came to an end with
> two
> 1875 decisions that finished off the New Birth Amendments, at least as
> their
> framers had envisioned them.
>
> The first case, United States v. Reese, stemmed from the 1873 election in
> Kentucky,
> when riots and lynchings swept the state to discourage black voting. Using
> a
> variety of methods, from residency requirements to literacy tests to poll
> taxes,
> whites took two-thirds of black voters off the rolls. A federal grand jury
> indicted
> scores of officials for their refusal to accept the poll tax from black
> voters. The
> Court declared that the "Fifteenth Amendment does not confer the right of
> suffrage
> upon any one." The Enforcement Acts had made it a crime for officials to
> "wrongfully refuse" ballots, a rule which the Court said Congress had no
> power
> to enact under the 15th Amendment. Again, the technical holding was less
> important than the practical effect. Reese theoretically left Congress
> free
> to fix the
> defective statutory language, but by leaving black voters without
> protection in
> 1876, the Court ensured that no Congress willing to do so would be elected
> for
> more than 90 years.
>
> If Reese gave public officials the green light to disfranchise blacks,
> Cruikshank gave
> private individuals a similar carte blanche to augment official
> discrimination with
> private violence. More than one hundred people were slaughtered in Colfax
> defending their right to vote, yet the Supreme Court declared in
> Cruikshank
> that
> their murderers were beyond the reach of federal law. The Klan and similar
> groups were now free to overthrow Reconstruction governments with
> impunity.
> Since the 14th Amendment "adds nothing to the rights of one citizen as
> against
> another," there could never be a federal civil rights violation when
> private
> individuals conspired to deny civil rights.
>
> The Supreme Court, which had so assiduously protected the rights of
> slaveholders
> before the Civil War, would not allow Congress to protect the lives of
> former
> slaves afterwards. Before the war, the Court had upheld federal
> prosecution
> of
> private individuals who interfered with the capture of runaway slaves.
> Now,
> it
> struck down an analogous remedy against individuals who interfered with
> former
> slaves' attempt to cast meaningful votes. Senators who had written the
> Enforcement Laws denounced the Court's decision, but in vain. Senator
> Oliver
> Morton had to concede that the 14th and 15th Amendments had been "almost
> destroyed by construction." Congress was powerless to combat racist
> violence.
> Years later, W.E.B. DuBois described the Court's decisions in terms that
> could
> have come from conservative critics of "liberal judicial activist"
> decisions of the
> Warren Court. Reconstruction's enemies "relied upon the court to do what
> Democratic members of Congress had failed to accomplish - and the Court,
> through a process of reasoning very similar to that of Democratic
> legislators,
> deprived the enforcement legislation of nearly all its strength when it
> rendered its
> decisions in the cases of United States v. Reese and United States v.
> Cruikshank."
>
> With civil rights enforcement all but shut down from 1873 onwards,
> Reconstruction governments were driven from office throughout the South.
> Violence destroyed the Republican Party in Mississippi. Taking advantage
> of
> the
> void, Democrats recaptured the legislature and impeached the Republican
> governor
> and lieutenant governor, driving them from office by force of arms.
> Similar
> violence would "redeem" every state in the region, to use the term adopted
> by
> white supremacists. In 1876, Confederate General Matthew Butler led a
> white
> mob to murder an opposing black militia defending the South Carolina
> government
> - and was then elected to the United States Senate by the new, "redeemed"
> legislature. The effects on the federal government were almost as
> dramatic,
> as
> pro-civil-rights Republican representatives and senators were replaced by
> anti-civil-rights Democrats - sufficient in number, as their successors
> proved in
> the mid-twentieth century, to filibuster meaningful civil rights
> legislation, even
> when a majority of the country supported it.
>
> The final blow to Reconstruction was the presidential election of 1876.
> With the
> black vote suppressed throughout the South, Democrat Samuel Tilden won a
> majority among those allowed to vote. A commission, including five
> justices
> of
> the Supreme Court, was appointed to resolve the ensuing dispute over the
> electoral college vote. The political parties cut a deal: Republican
> Rutherford B.
> Hayes would become President in exchange for the end of Reconstruction.
> Hayes ensured that federal troops would not return to the South to enforce
> civil
> rights by signing the Posse Comitatus Act, banning the military from
> "execut[ing]
> the laws." Barely two decades had passed since the Attorney General had
> authorized the military to "execute" the Fugitive Slave Act. Recognizing
> that the
> Supreme Court had made contesting elections in the South impossible,
> northern
> Republicans essentially conceded the end of the New Birth of Freedom.
> Murder
> and disfranchisement would be the fate of blacks fighting for civil rights
> in the
> South for the next ninety years.
>
> This did not mean that the Republican Party renounced the use of federal
> power
> in general, or even of military power for domestic law enforcement.
> Rather,
> control of federal power shifted from pro-civil-rights Radical Republicans
> to the
> party's pro-business faction. Within three months of the end of
> Reconstruction,
> federal troops were deployed to break the Great Strike of 1877. The
> federal
> government built armories in the North to ensure that troops would be
> available
> for future labor conflicts. Former President Grant acidly remarked that
> many
> Republicans had resisted using federal troops "to protect the lives of
> negroes.
> Now, however, there is no hesitation about exhausting the whole power of
> the
> government to suppress a strike on the slightest intimation that danger
> threatens."
>
> As for the courts, they did find a use for the self-executing aspect of
> the
> New Birth
> Amendments: during the ensuing "Lochner era," federal courts regularly
> struck
> down laws regulating subjects like labor relations and food packaging on
> the
> grounds that they violated the 14th Amendment's Due Process Clause
> (Lochner
> itself invalidated a New York statute prohibiting bakery employees from
> working
> more than 60 hours per week).34 As historian Eric Foner observed, "The
> federal
> courts . . . retained the greatly expanded jurisdiction born of
> Reconstruction;
> they increasingly employed it, however, to protect corporations from local
> regulation." Amendments meant to give birth to freedom brought forth
> Lochner
> instead.
>
> ___________________________________
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk