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Vol. 76/No. 15      April 16, 2012

Supreme Court justice:
U.S. Constitution passé
Workers should defend protections won in struggle
The U.S. Constitution and Bill of Rights is passé, so says U.S. Supreme Court Justice Ruth Bader Ginsburg, considered the most senior member of the court’s liberal wing. According to this view, a constitution that gives the capitalists’ government more power and “flexibility” to bestow numerous promises of rights and entitlements is better than the current Constitution and Bill of Rights, which are built around protections against the capitalist state.

“I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012,” Ginsburg told a local television station when she was in Egypt at the end of January. “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights.”

The liberal justice, also pointed to Canada’s Charter of Rights and Freedom and the European Convention on Human Rights as better models than the U.S. Bill of Rights.

Amendments won in struggle

The Bill of Rights of 1791 along with the 13th, 14th, and 15th amendments to the U.S. Constitution—which abolished slavery, recognized “equal protection of the laws,” and voting rights—were won as a result of massive, bloody struggles by and in the interests of workers and farmers, including the revolutionary war for independence, Shay’s rebellion in 1786, the 1861-65 Civil War and related struggles that followed it.

South Africa’s Bill of Rights, which is four times longer than the U.S. Bill of Rights, begins by saying it “affirms the democratic values of human dignity, equality and freedom” and guarantees the “full and equal enjoyment of all rights and freedoms.”

Among the more than 35 categories containing scores of highly detailed rights, so highly lauded by Justice Ginsburg, are the rights to “life,” “freedom of artistic creativity,” “fair labour practices,” “sufficient food and water” and “access to adequate housing.”

These rights, the South African law says, may be limited “to the extent that the limitation is reasonable and justifiable in an open and democratic society” or if a state of emergency is declared.

The Canadian Charter of Rights and Freedoms guarantees rights subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Compare those descriptions to the preamble to the Bill of Rights, which notes that the amendments to the Constitution were made “in order to prevent misconstruction or abuse of its powers.”

Succinct, clear and to the point. No worthless promises from the capitalist rulers to ensure “human dignity,” much less caveats about “reasonable limits.”

The last thing working people need is to depend on the capitalist state to “give us rights.” We need it to leave us alone so we can organize independently and with as little interference as possible, until the working class and our allies are strong enough to wrest power and establish a new social order based on solidarity and the needs of the great majority of toiling humanity.

There are useful examples from the early history of the United States. The words “equal rights to life, liberty and property” were popular among bourgeois opponents of monarchial tyranny and feudal reaction in the late 18th century and were included in the constitution of the antislavery New York Manumission Society. In drafting the Declaration of Independence, however, these words were altered by slaveholder Thomas Jefferson to “life, liberty and the pursuit of happiness.” The exploitation of wage and slave labor is predicated on dispossession and denial of property for the toiling majority.

We don’t need any government involved in our “pursuit of happiness.” We have as much use for that as so-called rights to “artistic freedom” or “adequate food and water” championed in Ginsburg’s model constitution, while in the real world people go hungry. No, we’ll work to take care of those things ourselves despite their rule—and we find “happiness” in fighting to replace it.

The fact is, the U.S. capitalist rulers are constantly working to undermine the Bill of Rights. The right to a “speedy and public trial, by an impartial jury” has become the right to plea bargain and go to jail—unless you want to risk a 10-fold harsher sentence. The right “against unreasonable searches and seizures” has become “stop and frisk” anywhere, anytime. “Equal protection of the laws” is today further from reality than at any time in nearly half a century. And President Barack Obama now asserts the Constitution does not protect citizens accused of being “terrorists” from being assassinated on his orders.

New York Times Supreme Court correspondent Adam Liptak put forward views similar to Ginsburg in a Jan. 6 article that reports on a study soon to be published in the New York University Law Review.

Liptak says the U.S. Constitution is “out of step with the rest of the world” is “terse and old” and “guarantees relatively few rights.” He calls the “right to bear arms” an idiosyncrasy and favorably quotes University of Texas law professor Sanford Levinson bemoaning that “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.”

That difficulty, including the separation of powers and restrictive rules for approving amendments, was built into the Constitution as a result of the heterogeneous alliance of merchants and slave owners that made up the first U.S. governments, their suspicions of each other and their fears of the laboring classes.

“Our Founders designed a system that makes it more difficult to bring about change than I would like sometimes,” Obama complained in a Feb. 6 interview with NBC’s Today Show.

As long as we’re under capitalist rule, we’ll stick with the current Constitution—especially the Bill of Rights and 13th, 14th, and 15th amendments. Anything that helps to provide some protection from the state and slows down the ability of the rulers to impose their will is better than any dependency on the repressive state and false promises of the enemy class.
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