James Fitzjames Stephen, Virginia Woolf’s uncle, was nothing if not ferociously direct. Thus, in his book on the Criminal Law of England, he tells us why the subject is of interest:
“Its object is to give an account of the general scope, tendency, and design of an important part of our institutions, of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, and otherwise torment their fellow-creatures.”
This is a blunt disposition of the case, and in a satirist’s hands, or a Tolstoy’s, a condemnation of the system: but for Stephen, it is rightly how things are.
And, really, for most of us. We might not be down for the cold blooded executions, but we are all down for the enslaving and tormenting. When we blather on about the rule of law, it is on these foundations of meted out pain that we are arguing.
It is, of course, a grand phrase: the rule of law instead of the rule of men. The law, here, transcends the merely personal, the merely historical. It is the one thing to which we all bow. And in bowing, we are all equal.
But the reality is not so grand. Under cover of the rule of law, in the U.S., the courts and their minions, police, prosecutors, etc., have generally acted to protect the strongest and bring down the weakest. They are the ultimate line of defense for the plutocrats. From the slaveowners who penned the bill of rights to the present Supreme Court, which routinely deform them, there is a community of spirit.
For liberals, this is a painful story. That is because of our collective memory of the Court as an instrument for liberalizing our social relationships, for lifting the yoke from us: this was the effect of the Warren Court and even of Nixon’s court, the Burger Court, at least to an extent. But the very power that is given to the court to make these changes allows a variability of change – really, a tyranny by lifetime serving judges – that has rained down injustice upon us, from the Dred Scott decision to the arbitrary giving of the presidency to George W. Bush like it was a golfing trophy at a country club.
The rule of law is always and also the rule of men – and what men!
The last time the Supreme Court was fundamentally questioned in a presidential campaign was in 1924. Robert Lafollette’s campaign platform proposed, among other things, to initiate a Constitutional amendment giving the Legislative branch final say so on the constitutionality of law – not an appointed group of judges representative of the political coloring of the president who appointed them, for the most part. This platform drew attacks from the Republican candidate, Calvin Coolidge, and the Democratic candidate, John Davis. The New York Times thought it was just awful.
The Literary Digest of September, 1924, has an interesting passage concerning the whole thing:
[It] was another manifestation of the campaign policy, common to the Coolidge and La Follette camps, to try to put the
Democrats on the side lines and make the fight Coolidge versus La Follette, Republican versus Progressive, or, as President Coolidge hopes the issue will take form, Americanism versus radicalism. Communism and Socialism."
The La Follette attitude toward the courts appears in two official statements. The platform presented by the La Follette group at the Republican Convention contained this plank:
We favor submitting to the people, for their considerate judgment, a constitutional amendment providing that Congress may, by reenacting a statute, make it effective over judicial veto. We favor such amendment to the Constitution as may be necessary to provide for the election of all Federal judges, for fixed terms not exceeding ten years, by direct vote of the people."
Lafollette’s party explained itself when they broke away from the Republicans and ran as Progressives like this: "Abolition of the tyranny and usurpation of the courts, including the practise of nullifying legislation in conflict with the political, social or economic theories of the judges. Abolition of injunctions in labor disputes and of the power to punish for contempt without trial by jury. Election of all Federal judges without party designation for limited terms."
This anti-court strain in the progressive tradition waned along with the confidence in the power of the people, via elections, to decide on things. The New Dealers who took up much of Lafollette’s platform were much more confident in the power of technocrats – the brain trust – to make policy than were the earlier generation of progressives. Although Roosevelt famously took a whack at the court by trying to expand it, he never considered any radical undermining of its Marshallian foundations.
We’ve been living in that vacuum with regard to the court for some time. It hasn’t been a happy time for liberty, or for the working people of the United States. The myth that the Court is protecting the “Constitution” – which is a lousy document that is discarded whenever it gets in the way of an establishment program (for instance, the program of perpetual war at the prerogative of the president) – is getting less and less believable.
This should be brought up again. Or to put it Simon and Garfunkle style: Where’s you go, Bob Lafollette, the nation turns its lonely eyes to you – oo oo oo.