Contrary Notions
Page 9
Consider the conservative judicial activism perpetrated for generations against working people. Between 1880 and 1931 the courts issued more than 1,800 injunctions to suppress labor strikes. Labor “combinations” (unions) were declared a violation of due process, a way of coercively extracting wealth from decent defenseless rich employers. Collective bargaining, it was maintained, deprived both owner and worker of “freedom of contract.” By 1920, pro-business federal courts had struck down roughly three hundred labor laws passed by state legislatures to ease inhumane working conditions.
When Congress outlawed child labor or passed other social reforms, conservative jurists declared such laws to be violations of the Tenth Amendment. The Tenth Amendment says that powers not delegated to the federal government are reserved to the states or the people. So Congress could not act. But, when states passed social-welfare legislation, the Court’s conservative activists said such laws violated “substantive due process” (a totally fabricated oxymoron) under the Fourteenth Amendment, which says that state governments cannot deny due process to any person. So the state legislatures could not act.
Thus for more than fifty years, the justices used the Tenth Amendment to stop federal reforms initiated under the Fourteenth Amendment, and at the same time, they used the Fourteenth Amendment to stymie state reforms initiated under the Tenth. It’s hard to get more brazenly activist than that.
A conservative Supreme Court produced Plessy v. Ferguson (1896), an inventive reading of the Fourteenth Amendment’s equal protection clause. Plessy confected the “separate but equal” doctrine, claiming that the forced separation of Blacks from Whites did not impute inferiority as long as facilities were equal (which they rarely were). For some seventy years, this judicial fabrication buttressed racial segregation.
Convinced that they too were persons, women began to argue that the “due process” clauses of the Fourteenth Amendment (applying to state governments) and the Fifth Amendment (applying to the federal government) disallowed the voting prohibitions imposed on women by state and federal authorities. But in Minor v. Happersett (1875), a conservative Court fashioned another devilishly contorted interpretation: true, women were citizens but citizenship did not necessarily confer a citizen’s right to suffrage. In other words, “due process,” and “equal protection” applied to such “persons” as business corporations but not to women or people of African descent.
This same pattern of conservative judicial activism has continued into recent times. Bush Jr. was not the first conservative president to denounce as “judicial activism” those court decisions he disliked. Ronald Reagan did exactly the same, directing his condemnations selectively against liberal jurists. The conservative Supreme Court of Reagan’s day gave agribusiness access to federally subsidized irrigation in violation of the acreage limitations set by a Democratic Congress. That same Court struck down safety regulations that had been imposed by various states on the nuclear industry.
In these and similar cases one heard no complaints from Reagan and other conservatives about judicial usurpation of policymaking powers. Judicial decisions that advanced authoritarian and corporate interests were perfectly acceptable to them. But judicial decisions that defended democratic rights and socioeconomic equality invited attacks as activist aggrandizement.
At times, presidents place themselves and their associates above accountability by claiming that the separation of powers gives them an inherent right of “executive privilege.” Executive privilege has been used by the White House to withhold information on undeclared wars, illegal campaign funds, Supreme Court nominations, burglaries (Watergate), insider trading (by Bush Jr. and Cheney), and White House collusion with corporate lobbyists.
But the concept of executive privilege (i.e. unaccountable executive secrecy) exists nowhere in the Constitution or any law. Yet the right-wing activists on the Supreme Court trumpet executive privilege, deciding out of thin air that a “presumptive privilege” for withholding information belongs to the president.
In early 2006 Bush Jr. talked about “how important it is for us to guard executive privilege in order for there to be crisp decision making in the White House.” Crisp? So Bush presented himself as a “strict constructionist” while making claim to a wholly extra-constitutional juridical fiction known as “executive privilege.”
With staggering audacity, the Court’s rightist judicial activists have decided that states cannot prohibit corporations from spending unlimited amounts on public referenda or other elections because such campaign expenditures are a form of “speech” and the Constitution guarantees freedom of speech to such “persons” as corporations. In a dissenting opinion, the liberal Justice Stevens noted, “Money is property; it is not speech.” But his conservative activist colleagues preferred the more fanciful, loose constructionist interpretation.
They further ruled that “free speech” enables rich candidates to spend as much as they want on their own campaigns, and rich individuals to expend unlimited sums in any election contest. Thus both rich and poor can freely compete, one in a roar, the other in a whisper.
Right-wing judicial activism reached a frenzy point in George W. Bush v. Al Gore. In a 5-to-4 decision, the conservatives overruled the Florida Supreme Court’s order for a recount in the 2000 presidential election. The justices argued with breathtaking contrivance that since different Florida counties might use different modes of tabulating ballots, a hand recount would violate the equal protection clause of the Fourteenth Amendment. By preventing a recount, the Supreme Court gave the presidency to Bush.
In recent years these same conservative justices have held that the Fourteenth Amendment’s equal protection clause could not be used to stop violence against women, or provide a more equitable mode of property taxes, or a more equitable distribution of funds between rich and poor school districts. But, in Bush v. Gore they ruled that the equal protection clause could be used to stop a perfectly legal ballot recount. Then they explicitly declared that the Bush case could not be considered a precedent for other equal protection issues. In other words, the Fourteenth Amendment applied only when the conservative judicial activists wanted it to, as when stealing an election.
Conservatives say that judges should not try to “legislate from the bench,” the way liberal activists supposedly do. But a recent Yale study reveals that conservative justices like Thomas and Scalia have a far more active rate of invalidating or reinterpreting laws than more liberal justices like Breyer and Ginsburg.12 A similar study by a professor at the University of Kentucky College of Law came to the exact same finding: conservative judges do not just interpret the law, they refashion it—and far more often than their liberal colleagues. They are more willing than the liberals to strike down federal laws, “clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress.”13 In addition, conservative justices were more activist when it came to overturning the Court’s own precedents.
Judicial activism (the reinterpretation of existing laws and court decisions) is not necessarily an undesirable thing. The Supreme Court is supposed to strike down laws or portions of laws deemed unconstitutional or otherwise grossly detrimental to our rights and well-being. Justices across the political spectrum make such judgments at times. What is reprehensible is for one side to pretend that its justices are not activist, that they show a superior regard for the Constitution, that they do not usurp power and are more objective, that they are more respectfully self-restrained than their irresponsible opponents. Thus they turn judicial activism into a partisan attack while in fact the numbers show—as does the history of the court itself—that they are guilty of doing the very thing they charge their liberal colleagues with doing.14
Down through the years the Court’s right-wing jurists have been not only activist but downright adventuristic, showing no hesitation to invent politically partisan concepts and constructs out of thin air, eviscerate perfectly legitim
ate laws, shift arguments and premises as their ideology dictates, bolster an autocratic executive power, roll back substantive political and economic gains won by the populace, and weaken civil liberties, civil rights, and the democratic process itself (such as it is). The same holds true for the jurists who preside over the lower courts, which is why conservatives on the high court are quite content to let stand without review so many lower court decisions.
Perhaps one way to trim judicial adventurism is to end life tenure for federal judges, including the justices who sit on the Supreme Court. It would take a constitutional amendment, but it might be worth it. According to one poll, 91 percent of the citizenry want the terms of all federal judges to be limited.15 Today only three states provide life tenure for state judges; the other forty-seven set fixed terms ranging from four to twelve years (usually allowing for reelection). A fixed term would still give a jurist significant independence, but would not allow him or her to remain unaccountable for an entire lifetime.
Meanwhile we should keep in mind that the right-wing aggrandizers in black robes are neither strict constructionists nor balanced adjudicators. They are unrestrained ideologues masquerading as sober defenders of lawful procedure and constitutional intent. If this is democracy, who needs oligarchy?
9 WHY THE CORPORATE RICH OPPOSE ENVIRONMENTALISM
In 1876,Marx’s collaborator, Friedrich Engels, offered a prophetic caveat: “Let us not . . . flatter ourselves overmuch on account of our human conquest over nature. For each such conquest takes its revenge on us. . . . At every step we are reminded that we by no means rule over nature like a conqueror over a foreign people, like someone standing outside of nature—but that we, with flesh, blood, and brain, belong to nature, and exist in its midst. . . .”
With its never-ending emphasis on production and profit, and its indifference to environment, transnational corporate capitalism appears determined to stand outside nature. The driving goal of the giant investment firms is to convert living nature into commodities and commodities into vast accumulations of dead capital.
This capital accumulation process treats the planet’s life-sustaining resources (arable land, groundwater, wetlands, forests, fisheries, ocean beds, rivers, air quality) as dispensable ingredients of limitless supply, to be consumed or toxified at will. Consequently, the support systems of the entire ecosphere—the Earth’s thin skin of fresh air, water, and topsoil—are at risk, threatened by global warming, massive erosion, and ozone depletion. An ever-expanding capitalism and a fragile finite ecology are involved in a calamitous collision.
It is not true that the ruling politico-economic interests are in a state of denial about this. Far worse than denial, they have shown utter antagonism toward those who think the planet is more important than corporate profits. So they defame environmentalists as “eco-terrorists,” “EPA gestapo,” “Earth Day alarmists,” “tree huggers,” and purveyors of “Green hysteria” and “liberal claptrap.” Their position was summed up by that dangerous fool, erstwhile senator Steve Symms (R-Idaho), who said that if he had to choose between capitalism and ecology, he would choose capitalism. Symms seemed not to grasp that, absent a viable ecology, there will be no capitalism or any other ism.
In July 2005, President Bush Jr. finally muttered a grudging acknowledgment: “I recognize that the surface of the Earth is warmer and that an increase in greenhouse gases caused by humans is contributing to the problem.” But this belated admission of a “problem” hardly makes up for Bush’s many attacks upon the environment. In recent years, Bush’s people within the White House and Congress, fueled by corporate lobbyists, have supported measures to
allow unregulated toxic fill into lakes and harbors,
eliminate most of the wetland acreage that was to be set aside as reserves,
deregulate the production of chlorofluorocarbons (CFCs) that deplete the ozone layer,
eviscerate clean water and clean air standards,
open the unspoiled Arctic National Wildlife Refuge in Alaska to oil and gas drilling,
defund efforts to keep raw sewage out of rivers and away from beaches,
privatize and open national parks to commercial development,
give the remaining ancient forests over to unrestrained logging,
repeal the Endangered Species Act,
and allow mountaintop removal in mining that has transformed thousands of miles of streams and vast amounts of natural acreage into toxic wastelands.
Why do rich and powerful interests take this seemingly suicidal anti-environmental route? We can understand why they might want to destroy public housing, public education, Social Security, Medicare, and Medicaid. They and their children will not thereby be deprived of a thing, having more than sufficient private means to procure whatever services they need for themselves. But the environment is a different story. Do not wealthy reactionaries and their corporate lobbyists inhabit the same polluted planet as everyone else, eat the same chemicalized food, and breathe the same toxified air?
In fact, they do not live exactly as everyone else. They experience a different class reality, often residing in places where the air is somewhat better than in low- and middle-income areas. They have access to food that is organically raised and specially prepared. The nation’s toxic dumps and freeways usually are not situated in or near their swanky neighborhoods. In fact, the superrich do not live in neighborhoods as such. They reside on landed estates with plenty of wooded areas, streams, meadows, with only a few well-monitored access roads. The pesticide sprays are not poured over their trees and gardens. Clearcutting does not desolate their ranches, estates, family forests, and prime vacation spots.
The geographer Gray Brechin was telling me about a talk he gave a few years ago to a well-heeled group at St. Francis Yacht Club. His appearance was at the invitation of a scion of two great California-South African mining fortunes. After Brechin discussed the ecological damage done in California by developers and industrialists, one of the socialites blurted out: “If things are so bad, why haven’t we noticed?”
They haven’t noticed because they are so comfortably insulated from the ecological devastation caused by their very own enterprises. Brechin was taken aback. He realized that like most other people, the questioner did not have “the memory to make a comparison with what once was here. All I could do was to point out the window at the empty sky and ask where the birds went, and to say that if we could see under the water, we would note a similar absence of what was once a teeming aquatic ecosystem.”
Even when the corporate rich or their children succumb to a dread disease like cancer, they do not link the tragedy to environmental factors—though scientists now believe that present-day cancer epidemics stem largely from human-made causes. The plutocrats deny there is a serious problem because they themselves have created that problem and owe so much of their wealth to it.
But how can they deny the threat of an ecological apocalypse brought on by global warming, ozone depletion, disappearing top-soil, and dying oceans? Do the corporate plutocrats want to see life on Earth—including their own lives—destroyed? In the long run they indeed will be sealing their own doom, along with everyone else’s. However, like us all, they live not in the long run but in the here and now. What is at stake for them is something more proximate and more urgent than global ecology. It is global capital accumulation. The fate of the biosphere seems like a far-off abstraction compared to the fate of one’s immediate (and enormous) investments.
Furthermore, pollution pays, while ecology costs. Every dollar a company spends on environmental protections is one less dollar in earnings. It is more profitable to treat the environment like a septic tank, to externalize corporate diseconomies by dumping raw industrial effluent into the atmosphere, rivers, and bays, turning waterways into open sewers. Moving away from fossil fuels and toward solar, wind, and tidal energy could help avert ecological disaster, but six of the world’s ten top industrial corporations are involved primarily in the p
roduction of oil, gasoline, and motor vehicles. Fossil fuel pollution means billions in profits. Ecologically sustainable forms of production directly threaten such profits.
Immense and imminent gain for oneself is a far more compelling consideration than a diffuse loss shared by the general public. The social cost of turning a forest into a wasteland weighs little against the personal profit that comes from harvesting the timber.
Now we have the “peak oil” jeremiads, replete with images of a global collapse in fossil fuel supply in a matter of a few decades at most. Such dire warnings fall on deaf ears. There is still about a trillion barrels of oil in the ground and offshore. At $100 a barrel, which is what oil will cost as it gets scarcer, we are looking at $100 trillion in sales. And new reserves are being discovered in Africa and elsewhere just about every year. In any case, whether there is going to be lots of oil or little oil is not the question. The oil industry is not in the business of providing homes and communities with a guaranteed lifetime supply of needed fuel; it is not in the business of keeping the world’s fuel supply affordable and sufficient in decades to come. It is in the business of making the largest possible profits for itself, as much and as quickly as it can, here and now. When you get down to it, all corporations are involved in fast-buck investments.
The conflict between immediate personal gain on the one hand and seemingly remote public benefit on the other operates even at the individual consumer level. Thus, it is in one’s long-term interest not to operate an automobile that contributes more to environmental devastation than any other single consumer item (even if it’s a hybrid). But again, we don’t live in the long run, we live in the here and now, and we have an immediate everyday need for transportation, so most of us have no choice except to own and use automobiles, especially given the past undoing and present absence of viable mass transit systems and rail systems. The oil and automotive industries put “America on wheels,” and then said to hell with the environment.