Sunday, November 13, 2005


Howard Zinn: America's Real Historian

America has official historians: Doris Kerns Goodwin and David McCullogh come to mind. Boorstein, Schlesinger—interpeters of the status quo; this is the way it is and the way it’s supposed to be and it just keeps on keeping on. Getting better, even! There are assumptions, givens, about the way it’s all worked out. All is for the best and we really are the best country in the world. Ho-hum.

Except...America really doesn’t work all that well. For the last fifty years the country has been teeter-tottering on the brink of catastrophe. At the end of World War Two, America slipped into a state of perpetual undeclared war. That lasted until the turn of the century under the name of the Cold War. Now it’s the War on Terror. It’s a permanent war footing. The Fifty Year War against...them. Whoever it is that is out-to-destroy-us. That stance is what maintains our economy and thus our government. The military industrial complex keeps us going.

This is not the way the framers of the Constitution wanted it to go. Tom Paine, Jefferson, Madison, Adams, or even Hamilton would be appalled to see their dream country turned into an empire. That’s a safe assumption.

Since these were all well-off, mostly, white guys, they certainly didn’t foresee a pluralistic society; in their minds the only immigrants would be people pretty much like themselves with the same language, values, and ambitions. It sure hasn’t worked out that way.

What’s so frustrating to me is the assumption that the way it is now is the only way it can or could be. Basically, the big-time historians assume the country is on track.

Howard Zinn doesn’t make that assumption. That’s one reason why I like him so much. Try this essay:

Subject: Zinn: Our rights aren't up to the Supreme Court
Date: November 11, 2005 9:46:50 PM PST

It's not up to the Court

By Howard Zinn
November 2005 Issue

John Roberts sailed through his confirmation hearings as
the new Chief Justice of the Supreme Court, with
enthusiastic Republican support, and a few weak
mutterings of opposition by the Democrats. Then, after
the far right deemed Harriet Miers insufficiently
doctrinaire, Bush nominated arch conservative Samuel
Alito to replace Sandra Day O'Connor. This has caused a
certain consternation among people we affectionately
term "the left."

I can understand that sinking feeling. Even listening to
pieces of Roberts's confirmation hearings was enough to
induce despair: the joking with the candidate, the
obvious signs that, whether Democrats or Republicans,
these are all members of the same exclusive club.
Roberts's proper "credentials," his "nice guy" demeanor,
his insistence to the Judiciary Committee that he is not
an "ideologue" (can you imagine anyone, even Robert Bork
or Dick Cheney, admitting that he is an "ideologue"?)
were clearly more important than his views on equality,
justice, the rights of defendants, the war powers of the

At one point in the hearings, The New York Times
reported, Roberts "summed up his philosophy." He had
been asked, "Are you going to be on the side of the
little guy?" (Would any candidate admit that he was on
the side of "the big guy"? Presumably serious "hearings"
bring out idiot questions.)

Roberts replied: "If the Constitution says that the
little guy should win, the little guy's going to win in
court before me. But if the Constitution says that the
big guy should win, well, then the big guy's going to
win, because my obligation is to the Constitution."

If the Constitution is the holy test, then a justice
should abide by its provision in Article VI that not
only the Constitution itself but "all Treaties made, or
which shall be made, under the Authority of the United
States, shall be the Supreme Law of the Land." This
includes the Geneva Convention of 1949, which the United
States signed, and which insists that prisoners of war
must be granted the rights of due process.

A district court judge in 2004 ruled that the detainees
held in Guantanamo for years without trial were
protected by the Geneva Convention and deserved due
process. Roberts and two colleagues on the Court of
Appeals overruled this.

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 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

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 twelve 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. That is why Cindy
Sheehan's dramatic stand in Crawford, Texas, leading to
1,600 anti-war vigils around the country, involving
100,000 people, is more crucial to the future of
American democracy than the mock hearings on Justice
Roberts or the ones to come on Judge Alito.

That is why the St. Patrick's Four need to be supported
and emulated. That is why the GIs refusing to return to
Iraq, the families of soldiers calling for withdrawal
from the war, are so important.

That is why the huge peace march in Washington on
September 24 bodes well.

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.


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