The Progressive - October 2005
"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..."
... 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 twelve 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 Fourteenth Amendment called for. After all, it was the same Fourteenth 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 Fourteenth 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.
Read Howard Zinn's full commentary at The Progressive