Howard Zinn and the Supreme Court.

Howard Zinn at arrivals for THE PEOPLE SPEAK Premiere Hosted by HISTORY, Jazz at Lincoln Center, Rose Theater, New York, NY November 19, 2009. Photo By: Rob Kim/Everett Collection

The late historian Howard Zinn was the target of a Red-baiting attack by Trump last week, although it is hard for me to believe that Trump even knew who Howard Zinn was.

Stephen Miller must have written the final solution of Trump’s speech.

Trump’s historical knowledge is so limited that it led them to think Frederick Douglass was still alive.

The attack on Zinn was in the context of Trump’s attempt to make law and order a campaign theme, blaming the silly idea that there is a a national Left-wing public school curriculum where cadres of history teachers are trained to encourage sedition.

All of it just hokum.

Howard Zinn wrote the powerful The Peoples History of the United States, which many history and social studies teachers use in their classrooms as an alternative to the mythology of the standard issue history texts

So, this morning I’m thinking about what Howard Zinn might say about the death of Ruth Bader Ginsburg and the fight for the Supreme Court, even though Zinn died 10 years ago.

I’m certain they would want us to fight against a right-wing fascist take over of the Court and would encourage us to take the fight to the streets, to the ballot, on whatever level and with every tool we could muster.

The stakes in this fight are high.

It is not too much to say that lives hang in the balance.

I am also certain that Howard Zinn would use this opportunity to teach us some history of the Court, to give us some perspective, as they did in 2005 when writing about the John Roberts appointment as Chief Justice.

There is enormous hypocrisy surrounding the pious veneration of the Constitution and “the rule of law.” The Constitution, like the Bible, is infinitely flexible and is used to serve the political needs of the moment. When the country was in economic crisis and turmoil in the Thirties and capitalism needed to be saved from the anger of the poor and hungry and unemployed, the Supreme Court was willing to stretch to infinity the constitutional right of Congress to regulate interstate commerce. It decided that the national government, desperate to regulate farm production, could tell a family farmer what to grow on his tiny piece of land.

When the Constitution gets in the way of a war, it is ignored. When the Supreme Court was faced, during Vietnam, with a suit by soldiers refusing to go, claiming that there had been no declaration of war by Congress, as the Constitution required, the soldiers could not get four Supreme Court justices to agree to even hear the case. When, during World War I, Congress ignored the First Amendment’s right to free speech by passing legislation to prohibit criticism of the war, the imprisonment of dissenters under this law was upheld unanimously by the Supreme Court, which included two presumably liberal and learned justices: Oliver Wendell Holmes and Louis Brandeis.

It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.

The distinction between law and justice is ignored by all those senators—Democrats and Republicans—who solemnly invoke as their highest concern “the rule of law.” The law can be just; it can be unjust. It does not deserve to inherit the ultimate authority of the divine right of the king.

The Constitution gave no rights to working people: no right to work less than 12 hours a day, no right to a living wage, no right to safe working conditions. Workers had to organize, go on strike, defy the law, the courts, the police, create a great movement which won the eight-hour day, and caused such commotion that Congress was forced to pass a minimum wage law, and Social Security, and unemployment insurance.

The Brown decision on school desegregation did not come from a sudden realization of the Supreme Court that this is what the 14th Amendment called for. After all, it was the same 14th Amendment that had been cited in the Plessy case upholding racial segregation. It was the initiative of brave families in the South—along with the fear by the government, obsessed with the Cold War, that it was losing the hearts and minds of colored people all over the world—that brought a sudden enlightenment to the Court.

The Supreme Court in 1883 had interpreted the 14th Amendment so that nongovernmental institutions—hotels, restaurants, etc.—could bar Black people. But after the sit-ins and arrests of thousands of Black people in the South in the early Sixties, the right to public accommodations was quietly given constitutional sanction in 1964 by the Court. It now interpreted the interstate commerce clause, whose wording had not changed since 1787, to mean that places of public accommodation could be regulated by Congressional action and be prohibited from discriminating.

Soon this would include barbershops, and I suggest it takes an ingenious interpretation to include barbershops in interstate commerce.

The right of a woman to an abortion did not depend on the Supreme Court decision in Roe v. Wade. It was won before that decision, all over the country, by grassroots agitation that forced states to recognize the right. If the American people, who by a great majority favor that right, insist on it, act on it, no Supreme Court decision can take it away.

The rights of working people, of women, of Black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.

This is not to say that we should ignore the courts or the electoral campaigns. It can be useful to get one person rather than another on the Supreme Court, or in the presidency, or in Congress. The courts, win or lose, can be used to dramatize issues.

On St. Patrick’s Day, 2003, on the eve of the invasion of Iraq, four anti-war activists poured their own blood around the vestibule of a military recruiting center near Ithaca, New York, and were arrested. Charged in state court with criminal mischief and trespassing (charges well-suited to the American invaders of a certain Mideastern country), the St. Patrick’s Four spoke their hearts to the jury. Peter DeMott, a Vietnam veteran, described the brutality of war. Danny Burns explained why invading Iraq would violate the U.N. Charter, a treaty signed by the United States. Clare Grady spoke of her moral obligations as a Christian. Teresa Grady spoke to the jury as a mother, telling them that women and children were the chief victims of war, and that she cared about the children of Iraq. Nine of the 12 jurors voted to acquit them, and the judge declared a hung jury. (When the federal government retried them on felony conspiracy charges, a jury in September acquitted them of those and convicted them on lesser charges.)

Still, knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissidents, we cannot become dependent on the courts, or on our political leadership. Our culture—the media, the educational system—tries to crowd out of our political consciousness everything except who will be elected president and who will be on the Supreme Court, as if these are the most important decisions we make. They are not. They deflect us from the most important job citizens have, which is to bring democracy alive by organizing, protesting, engaging in acts of civil disobedience that shake up the system.

Let us not be disconsolate over the increasing control of the court system by the right wing.

The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people. Those words engraved in the marble of the Supreme Court, “Equal Justice Before the Law,” have always been a sham.

No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence—an equal right to life, liberty, and the pursuit of happiness—be fulfilled.

Published in The Progressive • November 8, 2005

4 thoughts on “Howard Zinn and the Supreme Court.

  1. Great post, Fred. Our daughter was lucky enough to have a U.S. History Teacher who taught from Zinn’s definitive :The People’s History of the United States,” & we’re lucky to have her excrutiatingly well-annotated (I use that word because she has the most anal, tiniest {but legible, & well-worth reading!} printing, most of them her own comments, not the teacher’s–we have discussed this as nauseum). Speaking of the last, both she & her partner, like us are saddened,
    shocked & sickened by the death of Justice Ginsburg (o.b.m.).
    Friends have been calling GOP senators: thus far, responses from Romney, Murkowski & Collins offices: no S.J. nominations until after new president elected (& sworn in). Expected responses from R & M.
    Of course, we need MORE. Everyone, call senators both GOP & Dems (to put the pressure on).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s