[lbo-talk] Can the Bill of Rights Be Legislated Today?

[andie nachgeborenen]

Who is this "we" we rely oon this? And exc atly on
what provisions? The 4th A (search and seizure) is
largely gone, its glory days having been spent by the
mid-70s,a lthough it is still useful on a practical
level in corners here and there where the cops forget
to get a warrant or just search someone withourt any
ofthe ten million exceptions applying.  The Eight
Amendment (cruel and unusual punishment) is dead, I
can't recall a C&U punishment case of significance in
decades. The 7th amendment (jury trial) is important
but not much litigated, besides being quite technical.
The Fifth Amendment's important but likewise not much
litigated, apart from the assault in Miranda, largely
symbolic anyway because (a) everyone knows their
rights from TV anyway and (b) the bad guys always talk
anyway unless they are real pros. The 6A double
jeopardy clause doesn't arise very often and has been
largely gutted anyway, the takings clause is
ominaously more important, but no friend to us.  The
5th A due process clause remains important, but less
so since (along with the 14th A due pricess clause)
it's now settled that after the privacy right taht is
the basis of Roe there will be no new substantive due
process rights.  Procedural due process -- the right
to notice and a hearing -- has been demolsihed by the
Busg administration, though the Courts have been
standing up against that some. The 6th ademendment
(speedy criminal trial, confrontation and compulsory
process of witnesses) is important but not a hot spot
for litigation. The 8th & 9th A are now the resort of
the rights.  

Which leaves the 1 A and the 14 A (Due process and
equal protection), and maybe that is what Lazare is
talking about -- I have never been mich impressed by
his argument that constitutional protections for free
speech and seperation of church and state, the rights
of equal protection and due process for discrete and
insular minorities (as well as the application of the
rest of the BoR to the states) have been a substitute
for politics. Sure, the NAACP Inc Fund pursued an
equal rights-based litigation strategy to attack Jim
Crow, but it is not like the Black freedom movement
didn't take to the streets as well as lobby for
legislation as well. The free speech rights -0-a lways
chancy, since they have always vanished in wartime,
were not so much won by litigation as litigation
codified the 60s's refusal of the 50s great fear. 

Anyway, I am, a bigger fan of the Constitution than
Lazare -- he wants, in effect, a parlimentary system.
That's not happening. ANd he leans on the wrong
provisions of the C as problematic. Like Tom
Geoghegan, he should go after the entrenched
two-Senator rule and the electoral college.

--- Doug Henwood <dhenwood at panix.com> wrote:


> Yoshie Furuhashi wrote:
> 
> >There is one piece of law that grassroots
> organizing and electoral 
> >politics as usual could never have gotten us: the
> Bill of Rights.
> 
> But, as Dan Lazare likes to argue, we rely on the
> BoR and the rest of 
> the Constitution to protect us, serving as a
> replacement for 
> politics. Thus the incredible melodramas over court
> nominations, 
> since the SC is the official arbiter of the
> constitution. Dan argues 
> that this is central to the depoliticization of
> American life 
>
<http://www.leftbusinessobserver.com/Radio.html#050908>.
> 
> Doug
> ___________________________________
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
> 

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