....The anti-Trump frenzy is also reflected in press coverage of the composition and character of the U.S. Supreme Court. Liberal commentators flew into a panic when Justice Ruth Bader Ginsburg was diagnosed with cancer, sparking speculation that the 85-year-old would have to leave the court. They fear this would open the door for "arch-reactionary" Trump to nominate yet another justice in his image. Liberals view the court, and Ginsburg, as the agent for adopting political policies they favor but are unable to get through Congress, not as a court that makes rulings based on the Constitution and the Bill of Rights.
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Supreme Court justice:
U.S. Constitution passé
Workers should defend protections won in struggle
BY SETH GALINSKY
The U.S. Constitution and Bill of Rights is passé, so says U.S. Supreme Court Justice Ruth Bader Ginsburg, considered the most senior member of the court's liberal wing. According to this view, a constitution that gives the capitalists' government more power and "flexibility" to bestow numerous promises of rights and entitlements is better than the current Constitution and Bill of Rights, which are built around protections against the capitalist state.
"I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012," Ginsburg told a local television station when she was in Egypt at the end of January. "I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights."
The liberal justice, also pointed to Canada's Charter of Rights and Freedom and the European Convention on Human Rights as better models than the U.S. Bill of Rights.
Amendments won in struggle
The Bill of Rights of 1791 along with the 13th, 14th, and 15th amendments to the U.S. Constitution—which abolished slavery, recognized "equal protection of the laws," and voting rights—were won as a result of massive, bloody struggles by and in the interests of workers and farmers, including the revolutionary war for independence, Shay's rebellion in 1786, the 1861-65 Civil War and related struggles that followed it.
South Africa's Bill of Rights, which is four times longer than the U.S. Bill of Rights, begins by saying it "affirms the democratic values of human dignity, equality and freedom" and guarantees the "full and equal enjoyment of all rights and freedoms."
Among the more than 35 categories containing scores of highly detailed rights, so highly lauded by Justice Ginsburg, are the rights to "life," "freedom of artistic creativity," "fair labour practices," "sufficient food and water" and "access to adequate housing."
These rights, the South African law says, may be limited "to the extent that the limitation is reasonable and justifiable in an open and democratic society" or if a state of emergency is declared.
The Canadian Charter of Rights and Freedoms guarantees rights subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Compare those descriptions to the preamble to the Bill of Rights, which notes that the amendments to the Constitution were made "in order to prevent misconstruction or abuse of its powers."
Succinct, clear and to the point. No worthless promises from the capitalist rulers to ensure "human dignity," much less caveats about "reasonable limits."
The last thing working people need is to depend on the capitalist state to "give us rights." We need it to leave us alone so we can organize independently and with as little interference as possible, until the working class and our allies are strong enough to wrest power and establish a new social order based on solidarity and the needs of the great majority of toiling humanity.
There are useful examples from the early history of the United States. The words "equal rights to life, liberty and property" were popular among bourgeois opponents of monarchial tyranny and feudal reaction in the late 18th century and were included in the constitution of the antislavery New York Manumission Society. In drafting the Declaration of Independence, however, these words were altered by slaveholder Thomas Jefferson to "life, liberty and the pursuit of happiness." The exploitation of wage and slave labor is predicated on dispossession and denial of property for the toiling majority.
We don't need any government involved in our "pursuit of happiness." We have as much use for that as so-called rights to "artistic freedom" or "adequate food and water" championed in Ginsburg's model constitution, while in the real world people go hungry. No, we'll work to take care of those things ourselves despite their rule—and we find "happiness" in fighting to replace it.
The fact is, the U.S. capitalist rulers are constantly working to undermine the Bill of Rights. The right to a "speedy and public trial, by an impartial jury" has become the right to plea bargain and go to jail—unless you want to risk a 10-fold harsher sentence. The right "against unreasonable searches and seizures" has become "stop and frisk" anywhere, anytime. "Equal protection of the laws" is today further from reality than at any time in nearly half a century. And President Barack Obama now asserts the Constitution does not protect citizens accused of being "terrorists" from being assassinated on his orders.
New York Times Supreme Court correspondent Adam Liptak put forward views similar to Ginsburg in a Jan. 6 article that reports on a study soon to be published in the New York University Law Review.
Liptak says the U.S. Constitution is "out of step with the rest of the world" is "terse and old" and "guarantees relatively few rights." He calls the "right to bear arms" an idiosyncrasy and favorably quotes University of Texas law professor Sanford Levinson bemoaning that "the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today."
That difficulty, including the separation of powers and restrictive rules for approving amendments, was built into the Constitution as a result of the heterogeneous alliance of merchants and slave owners that made up the first U.S. governments, their suspicions of each other and their fears of the laboring classes.
"Our Founders designed a system that makes it more difficult to bring about change than I would like sometimes," Obama complained in a Feb. 6 interview with NBC's Today Show.
As long as we're under capitalist rule, we'll stick with the current Constitution—especially the Bill of Rights and 13th, 14th, and 15th amendments. Anything that helps to provide some protection from the state and slows down the ability of the rulers to impose their will is better than any dependency on the repressive state and false promises of the enemy class.
https://www.themilitant.com/2012/7615/761536.html
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Scalia's death prompts debate on
Supreme Court, Bill of Rights
BY MAGGIE TROWE
The Feb. 13 death of Supreme Court Justice Antonin Scalia sparked a partisan debate on nominating his replacement and a broader debate about the role of the court and the place of the Bill of Rights and other amendments to the Constitution that defend equal protection under the law.
Democratic presidential candidates Hillary Clinton and Bernie Sanders urged President Barack Obama to nominate a liberal replacement rapidly. Republicans demanded Obama decline to make a nomination, leaving it to the next president in 2017.
Scalia was hated by most liberals and leftists for his socially conservative views, but more importantly because he argued the court should base its rulings strictly on the Constitution, rejecting "outcome-driven" decisions that amount to decreeing laws from the bench.
But it's in the interest of the working class that the court uphold the Constitution, especially the Bill of Rights and subsequent amendments won in struggle that are protections of the people against the government.
In his dissent on last year's ruling legalizing gay marriage, Scalia pointed to the narrowness of the class background of the justices, writing they are "only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School."
The justices are all Catholic or Jewish, he pointed out. "Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. … Eight of them grew up in east- and west-coast States."
Ruth Bader Ginsburg, a long-serving liberal Supreme Court justice, has raised other concerns about what is called judicial activism concerning the court's 1973 Roe v. Wade ruling that decriminalized abortion. "It's not that the judgment was wrong, but it moved too far too fast," cutting short the political fight needed, she told a Columbia Law School symposium in 2012. She has also criticized the court for not basing the decision on the 14th Amendment's guarantee to every person of equal protection of the laws, a conquest of the revolutionary struggle that ended slavery.
Liberal supporters of judicial activism and the "living Constitution" say the court should prioritize achieving an outcome they view as positive and progressive, and then find some justification.
Scalia took the opposite approach, insisting on applying the Constitution and its amendments strictly, as limits on government abuse.
For example, in Kyllo v. U.S. in 2001, he wrote that the government violated the Fourth Amendment prohibition of unreasonable search and seizure when it used thermal imaging technology without a warrant to detect marijuana cultivation inside a suspect's house.
When the court struck down a St. Paul, Minnesota, "hate-crime" law against racist speech in 1992, Scalia wrote, "Burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."
https://www.themilitant.com/2016/8008/800858.html
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