Is the U.S. Supreme Court the Biggest Threat to Our Democracy?

 By JIM SMITH

Conventional wisdom and conventional teaching of history tells us that the U.S. Supreme Court is the supreme law of the land, that the only branch of government which isn’t elected can tell the other two branches of government what is and is not constitutional.

But Thom Hartmann took his readers to school on this topic in his Oct. 20th column, The Hartmann Report.

According to Hartmann, “There is literally nothing in the Constitution that gives the Supreme Court the exclusive right to decide what the Constitution says or means and impose it on the other two branches of government, or on the rest of America. That is a power the Supreme Court took onto itself in that 1803 decision of its own, Marbury v Madison.”

Hartmann continues:

“Instead of putting the Supreme Court in charge of American laws, the Framers of the Constitution did the opposite: they put Congress in charge of the Supreme Court.

“As they wrote in Article 3, Section 2 of the Constitution:

“[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.

“Republicans know this well…. Most recently, in the wake of the Obergefell gay marriage decision, Republicans in Congress offered a law stripping from the Court its power to rule that gay people could get married. The Marriage Protection Act, which passed the House of Representatives on July 22, 2004 but failed in the Senate, explicitly says:

“No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.”

[End of Hartmann excerpts]

We have heard that Congress has the power to increase the number of justices on the Supreme Court, but it turns out, according to the Constitution, that it has complete power over the Supreme Court and how it functions.

Now the Court has been overtaken by rightwing extremists poised, among other things, to make gay marriage illegal, to validate the power of the 30 Republican-controlled state legislatures to ignore presidential balloting and send electors of their choice to the Electoral College, to abolish all forms of local gun control, to end affirmative action by private colleges, and to further gut the 1967 Voting Rights Act.

If that sounds extreme, just consider what the Court has already done:

>   It overturned Roe v. Wade.

> In Citizens United, it allowed unlimited political donations by corporations and their billionaire owners.

> It gutted the power of the EPA to regulate carbon and water pollution.

> It gutted the Civil Rights Act and Voting Rights Act.

> It approved extreme gerrymandering in Wisconsin, Louisiana and Alabama that demonstrably disenfranchised voters of color.

> It eliminated the right of citizens to sue police officers who don’t read them their Miranda rights.

> It eliminated protection against unreasonable search and seizure by the Border Patrol or other federal officers within 100 miles of any border, including the ocean. No warrant necessary!

All those decisions and the ones to come in the Supreme Court’s current term are based on that 1803 decision in Marbury v. Madison in which the court empowered itself to overrule both Congress and the Presidency.

The backlash against Marbury was so great that the Court didn’t rule on the constitutionality of laws again for over 70 years. But today, it’s routine.

Congress has the power to rein in the Supreme Court, revoke its right to overrule its laws and even change the number of justices. Hartmann maintains in his Oct. 20th column that the time is now, because “if we fail, 2024 may be this nation’s last [popular] election for president.”

You can read the full Hartmann column at https://hartmannreport.com/p/are-scotus-republicans-in-on-a-plot.

 

‘Critical Race Theory’ May Not Be Taught in K-12, But Perhaps It Should Be

 By JIM SMITH

I have received quite an education from reading The 1619 Project: A New Origin Story about the history of slavery and racism in America. As a “history major” in college, I’m embarrassed at how little I knew about this aspect of American history.

Republicans, at least the Trumpers, would like to burn this book, and have succeeded in getting it banned from schools and libraries, because, for them, ignorance is bliss. They don’t want Americans to know their history.

I think this is an essential book that every student (and grown-up) should read and study.

Did you know that the capture and return of escaped slaves was primary to the creation of many police departments, especially in the South?

Did you know that 10 of our first 12 presidents were slave owners? That of the 84 clauses in the U.S. Constitution, six deal directly with the enslaved and their enslavement, and five more hold implications for slavery? That the Constitution prohibited the federal government from intervening to end the importation of slaves from Africa for a term of 20 years and allowed Congress to mobilize the militia to put down slave revolts and forced states that outlawed slavery to turn over escaped slaves to their enslavers in other states? That slavery existed in all 13 colonies, not just the South?

I was fascinated by the story of Virginia’s royal governor, the Earl of Dunmore, a slave owner himself, who warned colonists taking up arms that he would “declare Freedom to the Slaves,” prompting hundreds of slaves to join the British. Indeed more slaves joined the British than joined the colonists during the Revolutionary War.

It’s generally understood that the U.S. Constitution went against the noble statements in the Declaration of Independence regarding “all men being created equal,” but check out this excerpt from Chapter One:

“Thomas Jefferson spoke for other white Americans when he stated in the largest and angriest complaint in the Declaration of Independence, that Dunmore’s emancipation proclamation was a major cause of the American Revolution,” [Woody] Holton writes. Or, as historian Michael Groth put it, “In one sense, slaveholding Patriots went to war in 1775 and declared independence in 1776 to defend their rights to own slaves.”

Holton was referring to the last grievance in the Declaration of Independence that “He [the King] has excited domestic insurrections amongst us,” a specific reference to insurrections by slaves against their enslavers.

Another quote I highlighted:

As Frederick Douglass would explain in 1849, the Constitution bound the nation “to do the bidding of the slave holder, to bring out the whole naval and military power of the country, to crush the refractory slaves into obedience to their cruel masters.”

Northerners (like myself) were led to believe that racism, racial segregation and discrimination of all sorts was a Southern phenomenon, one which children born after the 1970s or 1980s might totally accept. But this book reminds readers that white politicians in the North implemented policies that segregated Blacks into slum neighborhoods and all-Black schools, and “Whites Only” signs were common in Northern businesses. California was among the non-Southern states which barred interracial marriages. It was the FHA which introduced (and mandated) racially tinged redlining to the mortgage industry.

This is history which all Americans need to know. And we need to know that right-wing opposition to teaching American history is anti-American. (Or perhaps we should label it “highly American,” given our history.)

The 1619 Project provides insight regarding the members of the Supreme Court who call themselves “originalists.” To be an originalist in that context means to support not just denying women the vote but supporting slavery and systemic racism.