There’s a law of the jungle and
There’s a law of the land
You get caught in the middle
You just try and make it the best you can
It’s a fool’s game
It’s a damned fool’s game
– Bonnie Raitt, Fool’s Game (written by Jon Cleary)
Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.
– Justice Sonia Sotomayor, Dobbs v Jackson Women’s Health Organization
The Bork Fight
Even the Senate said no to so-called ‘originalism’; in 1987, when they rejected Robert Bork, an apostle of the dogma who was nominated to the supreme court by then- president Teflon Ron Reagan. Politically, Bork was defeated largely by Jesse Jackson’s great popularity among Blacks in southern states; Democratic senators needed their votes more than they needed the rising proto-MAGA right wing political backlash Reagan initiated. That was before the impending demographic changes to the forthcoming People of color majority US electorate. Therefore that was the last open public discussion of constitutional law. Substantive statements have been forbidden thru out all subsequent justices’ confirmation hearings. Instead we got “white replacement”, and scapegoating critical race theory for every bloodstained right wing cultural fetish.
Most important now are the lessons of the Bork fight in the face of the rogue, all-originalist Roberts/Thomas Supreme Court, staffed by multiple justices laboring under heavy partisan political stenches. Their new-and-improved doctrine seems to be something like ‘ignore all the racist skeletons in the national closet, lie about the neofascist monsters under its bed, gaslight the voters and do whatever else will help whites steal elections and institutionalize minority rule’. Nice work if you can get it.
I respectfully suggest that the inability or failure of the great progressive campaign, which blocked the Bork nomination 35 years ago, but then failed to intentionally move beyond that victory, and to fight effectively for a human rights-based vision of constitutional justice less oppressive than the corrupt ‘originalism’ now dominating our jurisprudence, is a 1980s-era mistake that we should learn from, and can now rectify.
The Movement for Reproductive Liberation Today
Right after the May 3, 2022 leak of Justice Alito’s cruel, patriarchal-to-the-point-of-swinish opinion in Dobbs v Jackson Women’s Health, Michigan’s reproductive liberation movement led the nation by gathering hundreds of thousands of petition signatures to amend the state constitution protecting the right to abortion. After Kansas’ voters overwhelmingly refused on August 2 to remove the right to choice from their state constitution, even the pestilential corporate tribes of Dem strategists could see something was up! Let’s not blindly follow their blindness this time.
These are long-prepared fruits of decades-old Federalist Society conspiracies: hijack the federal courts and commit the illegitimate acts that Justice Sotomayor accurately called “political”, ostensibly because slave-owning founding fathers supposedly thought only they had rights. This historic crossroads of the law of the jungle and the law of the land should offer us opportunities to fight successfully for justice like we did when we defeated Bork. And once again we have the opportunity to develop and implement better visions, theories and decisions about our constitutional rights. It’s not about the upcoming midterms, or about any particular tactics out of the array of constitutional remedies for the abuses of Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas and Roberts. It’s about waking up to the very spirit and reality of democracy in our daily lives as drivers of political action and developing political consciousness in an all-hands-on-deck social emergency.
Sources of Law for Liberation
Our truly desperate public health, climate, political and security challenges call for alternative legal principles that collectively point toward the new, transformational view of justice and policy reforms we desperately need. A few initial contributions to the work and struggle of generations:
+ Acts of structural economic violence, like water shutoffs against People who are too poor to pay the full rates, violate the social contract and the very basis for having water infrastructure. They are wrong.
+ Democracy, freedom, liberation and human rights are all, like water, a public trust and a public good. The necessities of life are not commodities subject to privatization; they’re a public commons and their infrastructure is held in trust for the People.
+ Water policy and all legal policy must be based on justice, equity, and fact-based analysis and legal rules that can serve as an engine of justice , rather than as a force of oppression confusing economic power with legal rights. This is an explicit rejection of so-called ‘originalism’, and of the Federalist Society’s corrupt project of staffing the judiciary by ideological tests.
+ Human-rights visions, principles and structures of justice and strategy must be an even longer game than Supreme Court litigation, international human rights struggle, and reparations for centuries of structural and systemic racism. Build world-transforming grassroots social movements around those intentions and the real game of constitutional law and class struggle will be on, culminating in “the real movement which abolishes the present state of things”.
There were 2 basic rules that governed the pre-civil rights US states’ legal order: 1) The welfare of the People is the supreme law (Salus populi); and 2) Use your own so as not to injure others (Sic utere). (William J. Novak, The Peoples Welfare) Modified and applied as the intended elements of a true public interest “golden rule” militantly opposed to the rule of gold, and crucially, as modified by the post-civil war amendments and the 20th century civil rights revolution’s and international human rights movements’ deepest convictions and highest aspirations, so they don’t discriminate within or between class or identity categories based on power for purposes of exploitation. Kill enslavement. All enslavement, domination and exploitation. Dead. Study it. Speak up. Take action to save the commons and our democracy. If there are rules for that, I support them. The welfare of the People is the supreme law. And we can’t afford to fight wars any more. Period. Use your own so as not to injure others.
On top of those 19th century bedrock legal and moral values, we have constitutional and human rights derived from diverse international, cultural, written and unwritten legal, spiritual, and natural law and indigenous cultural traditions that we insist on respecting. Equal protection. Due process. Necessity of dignity as well as relief for subordinate classes, with Due Process for everybody not only billionaires. The Rights of Mother Earth and buen vivir, rebelliously sprouting like magnificent weeds in the territories formerly enclosed by the Monroe Doctrine. We are everywhere. We must never give up. And we can win!
In Detroit (Flint, Jackson, Cochabamba, Bolivia, etc.) we’ve had a special freedom school conscientization around the human right to water and sanitation. Policy and legal rules transforming our relationship to our water along these lines, and moving on to face our other existential challenges, will be critical to whatever future we can seize from today’s crises. See you at the barricades, and at the after jubilee!