Get Rewrite

A consitutional scholar rethinks the Constitution


In March I followed a Village Voice theater listing to an off-Broadway production of Robert O’Hara’s An American Maul. The Voice’s one-line description of the play was a tease too tantalizing to pass up. Something like: “A dimwitted American president confronted by a lagging economy and huge budget deficits decides to abolish the Thirteenth Amendment and re-enslave African-Americans.” Leaving the tiny basement theater on Bleecker Street I only regretted that the director didn’t cast to type and give us a more Bushian president. I also took some small comfort in knowing that President Bush and Co-President Rove are busy with the war and the election and are not big theatergoers.

You wouldn’t want to start those two thinking.

After all, Republicans have little invested in African-Americans who cast more than 92 percent of their votes to Democratic candidates. Assuming Bush were to decide to re-enslave American blacks, you could count the party’s political casualties on one hand. Certainly, Condi Rice and Colin Powell would resign; both have far too much integrity to stand idly by. Education Secretary Rod Paige would go, too. But he’s no big loss. He carried Sandy Kress’ briefcase to House and Senate education committee hearings, wasn’t allowed to speak during negotiations that moved Bush’s No Child Left Behind Law through Congress, and is rumored to be on the way out as soon as the Bushies find someone in Texas who will hire him. Supreme Court Justice Clarence Thomas probably could get it up for one last legal opinion rationalizing the disempowerment of American blacks. Providing the legal justification for overturning the Emancipation Proclamation would be a stunning conclusion to a career that began with an affirmative action admission to Yale Law School and was later distinguished by an impassioned opinion attacking affirmative action. And who in the Republican Party gives a shit about J.C. Watts?

This is a president who governs as if he has a mandate after losing the popular vote and going to court to stop the recount that would have established a correct electoral vote. He took three-quarters of a million dollars from Enron CEO Ken Lay, then went to Wall Street and declared war on corporate corruption. He lied to the public to justify going to war in Iraq. He ran up a $455-billion deficit after promising to pay down the national debt. George W. Bush is all about boldness and unpredictability: the kind of guy who might consider amending the Constitution to reinstate slavery.

In Overruling Democracy Jamin Raskin advances a more modest proposal regarding the Constitution. And it’s one progressives will find more palatable. Raskin warns that activist conservative judges are dismantling quasi-constitutional rights long established by previous courts. The judicial activism of the Rehnquist Court must be confronted and stopped. Restoring participatory democracy might require as many as a half-dozen amendments. Beyond defining certain rights protected in most modern democracies, the amendments Raskin proposes will serve the purpose of restraining activist right-wing judges who dominate the federal bench even after eight years of Bill Clinton appointments. (Such amendments obviously will be even more necessary after four or eight years of George W. Bush’s appointments.)

Raskin is a professor at American University’s law school and a prolific writer. His articles have appeared in The Nation, The Washington Monthly, and The American Prospect. It was Raskin who devised the wonderfully subversive concept of Internet vote-trading in presidential elections. In an October 2000 article published in Slate, he urged Gore supporters in states that would be carried by Bush to go on-line and trade their votes with Nader supporters in swing states. He described a plan by which everyone wins. By picking up throwaway Gore votes in states Gore couldn’t win, Nader gets the five percent he needs to secure federal funding for his party. In swing states where Nader could be the spoiler, Gore gets the Nader vote. It was a let-a-thousand websites-bloom scheme that might have made George W. Bush baseball commissioner. If only Nader had embraced it. Raskin knows the territory. He represented Ross 33 in court in 1996, when the Committee on Presidential Debates barred him from the Dole-Clinton debates. And he served as General Counsel for Jesse Jackson’s Rainbow Coalition. His commitment to third party candidates for the American presidency extends beyond the occasional op-ed submission.

Nader disappointed Raskin. It’s not just that Nader refused to sign on with the vote-trading plan Raskin laid out in Slate. Nader failed to seize his historic moment. Ordered out of the overflow auditorium where the 2000 Bush-Gore presidential debates were broadcast on closed-circuit TV in Boston, Nader folded. Raskin describes the hijacking of the presidential debates by Democratic and Republican Party functionaries who objected to the forum the League of Women Voters debates provided third-party candidates. The two-party fix was the Commission on Presidential Debates–a house organ funded by corporate interests to preserve the major parties’ electoral hegemony. Raskin reports on the commission’s maneuvering–first to keep 33 and then Nader out of the debates. Not only did CPD commissioners exclude Nader from the debates. They couldn’t tolerate him showing up with a ticket to watch the debate on the University of Massachusetts campus: “[E]ven the symbolism of having Nader seated with the overflow audience in a separate facility was too much for the CPD,” Raskin writes. Raskin quotes the explanation Nader offered up in his account of the 2000 election, Crashing the Gate:

The trooper became more impatient to get me back on the shuttle bus, and the sergeant said, “Mr. Nader, is it your intention to be arrested here?” My immediate thought was: What the hell? In the United States of America, I have a ticket to a public function at a public university, and without any cause or disruption, the authorities are throwing me out of the place. A private corporate power is using the state’s police for its partisan political ends. Sounds like a corporate state. See you in court, man.

Yet Nader got back on the bus.

I always prefer to be a plaintiff rather than a defendant… [M]y associate and I instead repaired to the shuttle and returned to a Metro train stop several miles away.

Maybe Nader’s identification with plaintiffs can be explained by his long association with plaintiffs’ lawyers. But in a political fight, there is both honor and advantage in being named the defendant. Henry David Thoreau, Eugene V. Debs and Martin Luther King, Jr. understood this. And as Raskin observes, so did Nelson Mandela and Mahatma Gandhi.

Yet there was no letter from a Boston jail. Raskin is bewildered that Nader lacked the agility to realize that a night in jail would have provided “photographic images of democracy under arrest.” A night in jail would have galvanized public sentiment and unleashed civil disobedience that would have obscured any publicity “the banality-backed debate would have received.” Had he submitted to arrest, Nader probably would have been joined by his entourage: Randall Robinson, Michael Moore, Cornel West, Phil Donahue, and Patti Smith –all capable of eloquent arguments about the cramped democracy permitted by the two major parties. But he got back on the bus. “Nader,” Raskin observes, “never recovered politically from the phenomenal setback of being excluded from the debates and left standing out in the cold, his candidacy tagged ‘not viable’ for all America to see.”

Raskin believes Nader was wrong to walk away from arrest in Boston. His frustration with Nader’s missed opportunity is rooted in Nader’s failure to illustrate for all of America one of the central arguments Raskin advances in his book. But in no way does he consider Ralph Nader an obstacle to democracy. Nader is part of the solution. For Raskin, the fault lies with the two dominant parties, which use the courts to define third-party candidates as “not viable.” A greater responsibility lies with the courts–which should represent the public’s interest and open the electoral process to all candidates.

Yet the federal bench, and the Supreme Court in particular, has been eager to accommodate the two-party monopoly on electoral politics. Raskin picks apart Supreme Court rulings on candidate debates and ballot access. The title of a suit filed by an Arkansas congressional candidate shut out of a debate on public television says a great deal about the parties’ position on access to public fora: Forbes v. the Arrogant Orwellian Bureaucrats of the AETN; The Crooked Lying Politicians; and the Special Interests. That independent candidate Ralph Forbes lost at the Supreme Court and was declared not “viable”–after wining 46.8 percent in an earlier Republican primary race for lieutenant governor of Arkansas–says a great deal about the Court’s commitment to the current two-party monopoly. The Supreme Court has allowed the major parties to determine who is electable and therefore worthy of an invitation to debate–and even more importantly, a place on the ballot. Forbes is a right-wing crank. But what became of the notion, Raskin asks, of citizens determining which candidates are electable by electing them?

To make his case against the Supreme Court, Raskin begins with the case that made George W. Bush president. In Supreme Injustice, Alan Dershowitz went straight at the dishonesty and judicial bad faith underlying the Court’s Bush v. Gore decision. Raskin is more circumspect. He gives the justices credit for consistency and describes the majority decision as consistent with the Rehnquist Court’s history of anti-democratic jurisprudence. Previous courts, Chief Justice Earl Warren’s court in particular, gradually created a constitutional imperative of universal suffrage. The Rehnquist court has steadfastly worked to undermine that imperative. Raskin allows that you might be offended by the Bush v. Gore decision. But no one who has been paying close attention should be surprised by the 5-4 vote to stop the counting of votes in Florida in 2000. What might be surprising, however, is one line in the majority opinion: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States…” That statement might be inconsistent with the long history of high court case law that extended constitutional protection of voter’s rights. But the majority on the current court doesn’t let previous case law stand in their way. Raskin proposes a constitutional amendment that would establish a right that most Americans assume we already have: the constitutional right to vote.

While we wait for a voting-rights amendment, there remains the issue of a right-wing federal bench averse to the workings of a participatory democracy. Raskin supports Senate Democrats standing in opposition to the extremists George Bush has named to lifetime appointments on the federal bench. And he dismisses the dishonest claims that liberal groups are “Borking” Mississippi federal District Judge Charles Pickering. Bush has now resubmitted Pickering’s appointment to the Fifth Circuit Court of Appeals – along with that of Texas Supreme Court Associate Justice Priscilla Owen. The two nominations are a prelude to Bush’s anticipated appointment to the Supreme Court, and they are not being Borked.

Judge Robert Bork was an unreconstructed right-wing ideologue who pretended to a certain kind of confirmation conversion before being rejected by the biggest bipartisan vote in the history of the Senate’s consideration of Supreme Court nominees. Unlike Lani Guinier, for example, or the 35 percent of President Clinton’s judicial nominees between 1995 and 2000 who never received a vote on the floor of the Senate, Judge Bork had a full and fair hearing in the Judiciary Committee, where he discussed his belligerent views for hours on end, and then a full-blown debate and vote on the floor of the Senate. If Borking means thoroughly exploring the records and views of right-wing judicial appointees, then the Democrats should bring it on.

We can only hope.

Raskin also casts a cold eye on the Rehnquist Court’s turning back the clock on the desegregation of the nation’s public schools. The Supreme Court, he observes, is running as far as possible from the desegregation mandates spelled out in Brown v. Board of Education–a decision won over the course of several decades “by the methodical litigation strategies of Charles Hamilton Houston, Thurgood Marshall, and the NAACP.” De facto segregation caused by white flight has been ruled acceptable. And school districts that demonstrate good-faith efforts to integrate are freed from court mandates, regardless of whether schools are actually integrated. “As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of a de jure system,” Justice Kennedy wrote in 1992. “The causal link between current conditions and the proof of violation is even more attenuated if the school district has demonstrated its good faith.”

While Kennedy opposes integration, one of his colleagues on the bench makes the case for segregation. Justice Clarence Thomas, the second African-American to sit on the High Court, is almost always over the top when it comes to issues related to race. After the Supreme Court overturned a comprehensive program that used capital improvements, course enrichment, and extracurricular enhancements to meet a federal district court mandate ordering Kansas City schools to improve education for African-American children, Thomas couldn’t resist piling on. He attacked the district court for “taking it upon itself to experiment with the education of … black youth.” Thomas even dismissed the theory “that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development”–the very underpinnings for the Brown decision and all desegregation rulings that followed. Thomas isn’t quite challenging the logic that underlies the 13th Amendment. But he’s perfectly willing to turn the historical clock at least as far back as Plessy v. Ferguson–when separate schools for African-American children were not an affront to the Equal Protection clause of the Constitution.

You’re just not going to win with these guys, Raskin argues. As a response to the Rehnquist Court’s assault on guarantees to education established by previous courts, Raskin proposes an amendment that would establish education as a constitutional right.

Raskin covers a lot of ground and examines enough case law to make the case that the conservative justices who have dominated the court for the past quarter of a century are using their judicial robes to cover their asses as they trash precedents and legislate from the bench. Professor Raskin lectures on more than education and voting. He takes on the court’s anti-democratic rulings regarding free speech, corporate usurpation of individual rights, campaign finance, and the rights of workers to organize. He is at times pedantic and his book would appeal to more readers if he had a little Elvis in him. But if Raskin can be pedantic, he can also be poetic, and it’s hard not to be moved by the Whitmanesque speech he slips into in a final chapter entitled “Democracy Rising.”

It is time for America’s much-celebrated and much-trampled civil society once again to pick up the agenda of progressive constitutional politics. The League of Women Voters, which is the great institutional legacy of the movement for woman suffrage and the humming engine behind so many modern progressive voting changes, must reclaim its visionary role… Common Cause has been not only a leading cham
ion of a political
process liberated from special-interest money but the key mover behind the Twenty-Sixth Amendment, which in 1971 extended the vote to eighteen-year-old-citizens…. Common Cause can once again be a crucial catalyst for democratic revitalization. The NAACP has been the indispensable institution fighting for interracial democracy and justice. With the great Julian Bond at the helm, it has the grass roots strength, historic legitimacy and institutional energy to put fundamental constitutional change on the agenda. The ACLU also has been a leading defender of the political rights of the people and its voice is critical to marrying the politics of democracy with the politics of civil liberty… Surely it can help us to reconstitute our politics on a more democratic footing.

Labor unions, a stalwart source of democratic agitation in our history, can teach the public about the need for participatory sovereignty in all of our social institutions.

Progressives are accustomed to calls to action and here is yet another campaign in which I’m ready to enlist. The odds of prevailing in the current political climate may seem less likely than rescinding the 13th Amendment. But beyond falling to our knees on the other side of Pat Robertson’s oblique intercessional prayer for the death of three justices, we really don’t have a lot of options left.

Former Observer editor Lou Dubose is currently working on a book tentatively entitled From the Times to Your Table: A Minor Regional Journalist Tackles the Wednesday Recipes of Our National Newspaper of Record.