http://www.tompaine.com/feature.cfm/ID/7632
The Supreme Court vs. The American People An Interview With Constitutional Scholar Jamin Raskin Steven Rosenfeld is a commentary editor and audio producer for TomPaine.com. Jamin Raskin is a professor of constitutional law at American University. As a public-interest lawyer defending "the right to democracy," he has represented the Rev. Jesse Jackson, Ross Perot, Greenpeace, United Students Against Sweatshops and many others. His latest book, Overruling Democracy: The Supreme Court vs. The American People, contends the current court is one of the most activist courts in U.S. history and should not be exempt from criticism by either candidates for federal office or the public. TomPaine.com's Steven Rosenfeld spoke with Raskin. TomPaine.com: You write that the Supreme Court has a very different view of democracy, democratic institutions, civil rights and corporate power than that held by most Americans. What do most Americans believe about their country that is out of sync with the Supreme Court? Jamin Raskin: People believe there is a constitutional right to vote. People believe there is a constitutional right to an education. Most people assume that states have to guarantee equal funding for public schools. All of those beliefs are rejected by the Supreme Court. TP.c: And when you say rejected, what you're talking about here is a pattern. So when you write that the current Supreme Court is "a historic disappointment, or in some respects a nightmare," you are talking about a pattern of decisions, right? Raskin: It is important to see that the Supreme Court has been a conservative or reactionary institution for most of our history. In the 18th century it did nothing to enlarge or deepen democracy. In the 19th century, it found in the Dred Scott decision that African-Americans could not be citizens within the meaning of our Constitution. In 1896, even after equal protection was added to the Constitution, the Court upheld governmental segregation of public accomodations. In the 20th century, the court adhered to "separate but equal" all the way up until 1954. In the first several decades of the 20th century, it struck down dozens of progressive federal and state laws regulating the work place and the economy. So, we had a brief period of progressive constitutionalism during the Warren Court. The Warren Court spelled out the principle of "one person, one vote," which should be the organizing principle of political democracy. The Rehnquist Court has abandoned that vision. TP.c: When you say that they have abandoned that vision, you are talking about what kind of decisions? Raskin: The Supreme Court has repeatedly intervened to deform and distort the political process. The most spectacular example is Bush v. Gore. The most interesting part of that decision to me was the sentence in which the court says there is no federally protected constitutional right to vote. The Court essentially denied the right that most people assume is at the heart of democracy. The Court said that the right to vote in presidential elections really belongs to the states who can appoint electors, and the Court made it clear that if Florida or any other state wanted to get rid of the popular vote or disregard it, they could do so. TP.c: Just to refresh people's memory, the Court stopped the recount in Florida, and then it said that counting all the votes would somehow harm the credibility of the president. Raskin: Yeah. What happened was the Florida Supreme Court ordered that 175,000 ballots that were not counted by the machines be counted by hand, which is the way that every state in the Union performs a recount. The Supreme Court intervened for the first time in American history to halt the counting of ballots. The Court said that there was a hypothetical possibility that certain ballots might be treated differently in one county than in another. Amazingly, the remedy for the potential loss of a few votes was the guaranteed disenfranchisement of tens of thousands of people, and of course this makes no sense. The court essentially admits that it makes no sense by declaring that the case has no precedential value for any other case in the future. TP.c: You say that behind Bush v. Gore lies "a thick and unprincipled jurisprudence hostile to popular democracy, and protective of race privilege and corporate power." Is the Court as classist and racist as you are describing? Raskin: Well, it's not back to Plessy v. Ferguson, but it has returned much closer to the old baseline of Supreme Court politics. I have a chapter describing the Supreme Court's racial double standard in redistricting decisions, and this is a line of cases that leads right up to Bush v. Gore. It started in 1993 with Shaw v. Reno, where the Supreme Court upheld an equal protection attack by a group of white voters in North Carolina -- led by a professor of constitutional law at Duke [University] -- who felt aggrieved by virtue of being put into a majority black district. They asserted that equal protection was violated because their district had what they called "a bizarre appearance" on the map. Most constitutional lawyers in the country thought this was ridiculous. After all, the Supreme Court had always said that there is no constitutional requirement that districts be a perfect circle or square or triangle, or any recognizable geometric figure. These white voters in North Carolina had all of the same rights that black voters had in majority white districts: They have a right to vote, run for office, to campaign and to contribute money. It was hard to see even what the injury was, which is something the Court insists on fanatically whenever minority plaintiffs come before the court. And yet, amazingly in one of the by now famous 5 to 4 decisions, the conservative block in the court decided that this equal protection challenge by white voters set forth a valid claim. The Court has proceeded to dismantle dozens of majority African-American and Hispanic congressional and state legislative districts. This has been a major blow to the process of deepening and strengthening American democracy. Amazingly, the conservative justices have described the most integrated districts in the history of many states, such as the districts in North Carolina, as apartheid or segregated districts. So there's a kind of moral dyslexia going on in the Court. TP.c: If you say the Court has been more conservative than the popular mainstream for most of American history, is this particular court among the most activist and regressive, or is it somewhat consistent with [Supreme] Courts in the past? Raskin: This court is easily as reactionary and activist as the Lochner Court was, and the Lochner Court is held up as the most activist Court in our history. But look at the progessive laws that were stripped down or gutted by the Rehnquist Court: the Violence Against Women Act, the Age Discrimination and Employment Act, the Religious Freedom and Restoration Act, the Gun Free School Zones Act, federal affirmative action policies and so on. The appalling thing is that, in the name of fighting judicial activism, the Republican party has engineered the most extreme judicial activism that we have seen in almost a century. TP.c: Why hasn't there been more public outcry or criticism of these rulings? Raskin: Part of it is the cult of the robe. People think that somehow the Supreme Court is outside of democratic politics. It is not. Bush v. Gore showed that it can slide from a fairly high level of ideological politics down into the mud of partisan politics. We need to demystify the court, and what I hope my book does is to show people that constitutional reasoning is not a different kind of thinking, but that it is just regular logical analysis carried over to law. Anybody can understand it, anybody can read it and everybody really needs to pay attention. We are really undergoing a full-blown assault on the institutions of political democracy. TP.c: Well that's what you write, and ultimately, it is a constitutional crisis of the sort where the principles that people think are foundational are not those being upheld by the highest court. Raskin: Totally. The country began as a slave republic of Christian white-male property owners over the age of 21. We have expanded and deepened democracy only through political struggle and constitutional amendment. The Reconstruction amendments abolished slavery and gave us equal protection and black suffrage. The 19th Amendment gave us women's suffrage. The 17th Amendment gave us direct election of senators. The 23rd Amendment gave [Washington], D.C. residents the right to participate in presidential elections. The 24th Amendment abolished poll taxes. The 26th Amendment lowered the voting age to 18. The Supreme Court, rather than contributing to democratization, has usually resisted it at every turn. The great victory of the Warren Court, as Chief Justice Warren himself said, was the definition of the "one person, one vote" principle, and the Rehnquist court has left that principle in tatters. So, with one party control of the House, the Senate, the White House and the Supreme Court itself, we need to get back to constitutional basics. This is why I say, we need to examine the constitutional anatomy of our political maladies today. We need to get back to constitutional politics. I think the liberals have turned into the worst constitutional conservatives, because liberals are afraid about the Flag Desecration Amendment, the School Prayer Amendment, and the Ten Commandments Amendment. They want to treat the Constitution like an antique in the attic that can't be touched by anyone. But that is an undemocratic way of thinking about the Constitution. Most of our amendments since the Bill of Rights have been progressive, democracy-enlarging amendments, and we need to pick up the thread again. TP.c: Where does that begin, beyond saying that there certainly needs to be a balance of power in Washington? Raskin: This may be the occupational hazard of being an academic, but I do think what we have to start with is ideas. We have to teach people about the Constitution, and we have to debate it. You know, I am involved in a constitutional literacy project, where we send law students into public high schools in Washington, D.C. and Maryland. We have taught thousands of high school students about constitutional history, and about the precariousness of democracy. I had a debate on Monday April 21 with Judge Richard Posner, and again on April 28 with Judge Posner at the University of Chicago. He has a new book out on democracy and the Constitution, in which he argues that democracy is not really about popular empowerment, but that it is just a mode for selecting different groups of elites to govern. I applaud his intellectual honesty, because he is articulating really the vision of democracy that has emerged in the American establishment today. He does not view democracy as an historic project of bringing the people to self-government. He views it simply as a way to give an occasional popular stamp of approval to technocratic rule. I am trying to reawaken the populist democratic instincts that we have in America. Published: Apr 24 2003 ------------------------ Yahoo! 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