The remaking of the
United States Supreme Court has been framed by the most extreme
ideologues in modern political history as a battle between strict
constructionists in white hats and their counterparts in moral darkness:
the judicial activists.
In keeping with the
Orwellian nature of the neoconservative culture, whose programmed
indifference is delivered in the name of compassion, whose evisceration
of individual rights is coaxed in the name of justice, and whose wars
are prosecuted in the name of peace, the real judicial activists are the
very same champions of neoconservative federalism.
It is ludicrous to suggest that either John Roberts or Samuel Alito do
not have an agenda. For all of their professional lives, they have been
devoted to a rightwing cause of judicial activism. That their cause is
regressive hardly negates its blatant activism. Far from ruling
passively on the merits of the law in a given case, both men have
pressed the cause of federalism to the detriment of individual rights.
Federalism, with its roots extending backwards to the anti-democratic,
pro-aristocracy sector of our founders, is yet another Orwellian term
for it is dedicated to undermining, limiting and ultimately reducing
federal authority to a military function. The federalists elevate
states rights to the detriment of federal authority because it is only
the federal authority that can protect civil rights, women’s rights,
voting rights, worker rights, the right to privacy and the right to
In the federalist stratosphere of elites, corporate rights reign supreme
and the states form a barrier to federal interference. Far from
ideological intransigence, when states step out of line (as Florida did
in the 2000 election), the federalists close ranks and conspire to
restrict them. The true goal of the Federalist Society is the creation
of a permanent ruling class with an unfettered corporate elite to
sponsor it in perpetuity.
At its very core, the federalists equate democracy with mob rule and
anarchy. They will go to the ends of the earth and beyond to prevent the
manifestation of a free and democratic society.
It is encouraging that a significant number of Democrats are rising
to their obligation as a party of opposition, finally questioning the
war and raising serious objections to the nomination of Judge Alito. On
the matter of the Supreme Court, however, as they are well aware, the
battle is lost. Whether it is Alito or some subsequent nomination that
prevails, the federalists will rule the court of John Roberts and,
unless time works its wonders of transformation (as it has before in
judicial history), Lady Liberty will rue the day for years and
generations to come.
That we have lost the court, however, does not mean that we must
surrender the war. Rather, we must find new battlegrounds on which to
press our own cause: the cause of individual freedom and democracy.
First, we must exploit the battleground our enemies have exploited so
well: statewide referendum. Since we can no longer rely on federal
authority to secure our rights and liberties, we must do so on a
state-by-state basis. Given a lengthy history of deference to state
authority, the Roberts court will be reluctant to abandon precedent.
When we attack the excesses of corporate power, however, they will
quickly shed their reluctance and stand exposed as the judicial
activists they are and have always been.
Second, we must begin the long and difficult process of amending a
constitution that falls short of its greater purpose: the establishment
of an enlightened democracy.
1. The Right to Vote. The inherent right of all citizens to vote in free
and fair elections shall not be infringed by any act of government or
its authorized agents.
In the aftermath of the last two presidential elections, it came as a
shock to many of us that the citizens of this nation do not possess a
constitutional right to vote. It is past time that deficiency was
2. The Right to Privacy. The right to privacy in one’s person, thoughts
and possessions shall not be infringed without compelling interests
established in due process of law.
It has become something of a judicial conundrum that the right of
privacy is only implied in the constitution. Let us make it explicit.
3. Military Conscription.
No citizen shall be compelled to military service against his or her
There is general if not bipartisan consensus that military conscription
is a crime against humanity. Let us lead all nations in banning forever
this barbaric remnant of despotic rule. If there are not sufficient
soldiers to fight a war of their own free will, that war should not be
4. Equal Rights Amendment. Men and women shall have equal rights
throughout the United States and every place subject to its
This common sense amendment, authored by Alice Paul in 1923, in
its revised version of 1972, was ratified by thirty-five of the required
thirty-eight states. It is time it had a second run.
These four amendments are only a beginning to the process of achieving
enlightened democracy. Others include securing an independent
media, distinguishing individual rights from the presumed rights of
corporations, and the right of labor to organize on the principle of
All is predicated on a favorable outcome in congressional elections.
As Tom Paine said in the first American Crisis, “Tyranny, like hell, is
not easily conquered; yet we have this consolation with us, that the
harder the conflict, the more glorious the triumph.”
It will not be easy.
The battle lines have been drawn. We have witnessed an American
insurgency, a revolution, a takeover of all three branches of government
by the most repressive elements in our society. We have seen what they
have wrought and we have glimpsed the darkness they have promised. We
have never had greater reason to fight.
The counter-revolution begins next November.
is the author of Ghost Dance Insurrection (Dry Bones Press) the
Jazzman Chronicles, Volumes I and II (City
Lights Books). The Chronicles have been published by
CounterPunch, the Albion Monitor, Buzzle, Dissident
Voice and others. Visit his website: