Constitutional law and class struggle

There’s a law of the jungle and
There is a law of the land
You’re caught in the middle
You just try to do the best you can
It’s a fool’s game
It’s a fucking fool’s game

– Bonnie Raitt, Fool’s Game (written by Jon Cleary)

Will this institution survive the stench it creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it’s possible.

– Justice Sonia Sotomayor, Dobbs v Jackson Women’s Health Organization

Bork’s fight

Even the Senate has said no to so-called “originalism”; in 1987, when they rejected Robert Bork, an apostle of dogma appointed to the Supreme Court by then-Teflon President Ron Reagan. Politically, Bork was largely defeated by Jesse Jackson’s high popularity among blacks in the southern states; Democratic senators needed their votes more than the growing right-wing proto-MAGA political backlash initiated by Reagan. This was before the impending demographic shifts in America’s future majority electorate of people of color. It was therefore the last open public discussion on constitutional law. Substantive statements were prohibited during all of the judges’ confirmation hearings that followed. Instead, we had a “white replacement” and critical race theory scapegoat for every bloody right-wing cultural fetish.

Most important now are the lessons of Bork’s struggle against the rogue and all-original Roberts/Thomas Supreme Court, made up of multiple justices working under heavy partisan political stench. Their new and improved doctrine seems to be something like “ignore every racist skeleton in the national closet, lie about neofascist monsters under your bed, enlighten voters, and do anything that can help white people steal elections and institutionalize the minority regime”. Good job if you can get it.

I respectfully suggest that the inability or failure of the great progressive campaign, which blocked Bork’s nomination 35 years ago but then failed to intentionally outgrow that victory and fight effectively for a view of constitutional justice based on human rights as less oppressive than the corrupt “originalism” that now dominates our jurisprudence is a mistake of the 1980s that we must learn from and can now rectify.

The Movement for Reproductive Liberation Today

Right after the May 3, 2022 leak of cruel, patriarchal opinion to the swish point of Judge Alito in Dobbs vs. Jackson Women’s Health, Michigan’s reproductive liberation movement has led the nation in gathering hundreds of thousands of petition signatures to change the state’s constitution protecting the right to abortion. After Kansas voters overwhelmingly refused on August 2 to remove the right to choose from their state constitution, even the pestilential corporate tribes of Democratic strategists could see that something was wrong! Let’s not blindly follow their blindness this time.

They are the long-prepared fruits of decades-old Federalist Society conspiracies: to hijack federal courts and commit the illegitimate acts that Judge Sotomayor accurately characterized as “political,” ostensibly because the founding fathers who owned slaves supposedly believed that only they had rights. This historic crossroads of the law of the jungle and the law of the land should provide us with opportunities to successfully fight for justice as we did when we defeated Bork. And once again, we have the opportunity to develop and implement better visions, theories and decisions regarding our constitutional rights. It’s not about the upcoming midterm reviews, or any particular tactic among the range of constitutional remedies for abuses by Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas, and Roberts. It is about waking up to the very spirit and reality of democracy in our daily lives as drivers of political action and developing political awareness in an unfailing social emergency.

Sources of law for liberation

Our desperate public health, climate, political and security challenges call for alternative legal principles that collectively point to the new transformational vision of justice and political reform that we desperately need. Some first contributions to the work and the struggle of the generations:

+ Acts of structural economic violence, such as water cuts against people too poor to pay the full price, violate the social contract and the very basis of water infrastructure. They are wrong.

+ Democracy, freedom, liberation and human rights are, like water, a public good and a public good. The necessities of life are not commodities subject to privatization; they are a public asset and their infrastructure is held in trust for the people.

+ Water policy and any legal policy must be based on justice, equity, factual analysis and legal rules that can serve as an engine of justice, rather than a force of oppression confusing economic power with legal rights. It is an explicit rejection of so-called “originalism” and the Federalist Society’s corrupt scheme to staff the judiciary through ideological testing.

+ The visions, principles and structures of human rights justice and strategy must be an even longer game than litigation in the Supreme Court, the international fight for human rights and reparations for centuries of structural and systemic racism. Build grassroots social movements that transform the world around these intentions and the real game of constitutional law and class struggle will begin, culminating in “the real movement that abolishes the present state of things”.

There were 2 basic rules that governed the legal order of American states before civil rights: 1) The welfare of the people is the supreme law (Salus populi); and 2) Use your own to not hurt others (Sic uterus). (William J. Novak, The well-being of peoples) Modified and enforced as intended elements of a genuine “Golden Rule” of public interest, militantly opposed to the Golden Rule, and most importantly, as modified by the Post-Civil War Amendments and the 20th century civil rights revolution and international human rights movements’ deepest convictions and highest aspirations, so that they do not discriminate within or between class categories or power-based identities for exploitative purposes. Kill slavery. All enslavement, domination and exploitation. Dead. Study it. Speak. Take action to save the commons and our democracy. If there are rules for this, I support them. The welfare of the People is the supreme law. And we can no longer afford to wage war. Period. Use yours to not hurt others.

In addition to these fundamental 19th century legal and moral values, we have constitutional and human rights derived from various international, cultural, written and unwritten, legal, spiritual and natural laws and indigenous cultural traditions that we insist on respecting. Equal protection. Regular procedure. Need for dignity as well as relief for the lower classes, with due process for everyone, not just the billionaires. The rights of Mother Earth and good life, growing in revolt like magnificent weeds in territories formerly landlocked by the Monroe Doctrine. We are everywhere. We must never give up. And we can win!

In Detroit (Flint, Jackson, Cochabamba, Bolivia, etc.), we had a special outreach at Freedom School around the human right to water and sanitation. Political and legal rules transforming our relationship to our water in this way, and addressing our other existential challenges, will be essential for any future we can seize from today’s crises. See you at the barricades, and after the jubilee!