injustices – a book review
Comforting the Comfortable and Afflicting the Afflicted
If you’ve ever wondered how the Supreme Court, in its great wisdom, came to the proposition that corporations are persons with all the rights thereof, I suggest you read Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted by Ian Millhiser.
There is plenty of precedent for that body making law out of whole cloth. Basically two forces are at work in the court, as in our great land, sometimes in the same justice, one dissenting, one dominating. A pro-democracy strand of fairness based in the written constitution and the people’s right to govern themselves via the congress struggles against a commitment to business owners (or one could say the 1%) and a distrust of democracy. This latter faction parses the Constitution where it can but doesn’t hesitate to invent, where needed, to advance those interests. Today’s court obviously has stood mostly in this camp, and given the current Congress and Executive, stands poised to wade still deeper into that unsavory swamp.
When the Union army took New Orleans during the Civil War, that city was the least healthy in the country. Every summer thousands perished from the heat-stirred effluence polluting the water system from slaughter houses upstream. When the Union Army force-moved them inland the death-rate plummeted.
After the war things went back to business-as-usual, including the toxicity. The reconstruction government decided to require reform of the nasty enterprise. Challenged by business, the Supreme Court eventually ruled in favor of the restrictions but a dissent by Justice Field gave hope to unbridled capitalism and in fact was cited, over the years, by many state supreme courts, as if the dissent were law, in knocking down other attempts to regulate business and protect workers and environment.
The Court played a part in a related story, the evisceration of that same post-war, reconstruction body, where freed slaves were voting and fully participating in the government itself.
As you can imagine, this was not acceptable to the former slave owners whose rationalizations justifying slavery needed little tweaking to condone the violent subjugation and demonization of their brothers from across the sea. Black citizens were slaughtered in an incident defending the reconstruction government from vigilantes.
The great court ruled that the plaintiffs had no federal remedy, they must rely on the state government (the vigilantes), the very body oppressing them. This ruling gave the south clear sailing. It may not have re-instituted slavery, but it came close. To put the final nail in the coffin, in a disputed election Hayes was given the presidency in exchange for ending reconstruction. Thus the march of injustice staggered on.
These cases demonstrate court polarity but they hardly begin to exhaust the record, both prior to these judgements and since. A few examples:
The Fugitive Slave Act of 1850 required that free states return escaped slaves to their “masters.” The Wisconsin Supreme Court ruled this act unconstitutional, but the Supreme Court over-ruled the decision in 1859.
In Plessy vs. Ferguson (1896) the Court unanimously ruled that segregated railroad cars did not abridge the privileges nor immunities of the colored race, nor deprive him(!) of property without due process of law, nor deny him the equal protection of the law.
In another case Field stated that if blacks could not be excluded from juries then the next outrage would be to grant women the same right. Justice John Archibald Campbell looked to ambiguous language in the 14th amendment to creatively protect white supremacy. The Court has shamefully ruled that slaves are not persons but corporations are.
A Pullman Porter strike against wage cuts was suppressed by the company in collusion with the president, the Attorney General and the courts. Troops were sent to attack peaceful strikers. There is an interesting section of the book describing the famous Pullman Town created by that patrician. Eugene Debs, the great labor organizer and socialist presidential candidate, defied the Pullman anti-union injunction and was jailed. Later, during World War I, he was jailed again for speaking against the war, wrecking his health and shortening his life. So much for the First Amendment.
The Court struck down child labor laws as interference with trade, and vigorously struck down state laws attempting to work around their judgements. Working conditions for children were horrendous, life stumping and threatening, from black lung to lost limbs, long hours, low pay and early death.
These judgements gave industry, particularly southern mills, a generation of cheap labor and decades of freedom from federal regulation. The “freedom” to enter into contracts was cited to deny workers the right to organize, as if to protect workers when actually those contracts were lop-sided in the extreme, unfair, burdensome and coercive. The right of owners however, to collude and organize against unions was not to be questioned.
Working conditions were terrible for adults as well, dangerous, poorly paid and brutal. In one month in 1907 all but five of the entire work force at one mine were killed in explosions. There of course were the company towns and stores that reduced workers to near feudal conditions. The court upheld a Colorado mining company’s right to pay in script, redeemable only at the company store. Companies had no incentive to spend on safety or training since the courts did not hold them liable for injury or death.
Respected (by the “right” people) theorist and scholar Professor Tiedman, in his prolific and widely read articles, urged jurists to rule whenever possible against the notion of majority rule – Democracy – even when the constitution or precedent did not support the ruling. Many state supreme courts enthusiastically complied.
Justice Field, in his notorious dissents, thought business should be immune to regulation, using the 14th Amendment in his twisted arguments. The “freedom” of business to be unregulated was put above the freedom of citizens to have clean drinking water, decent wages, safe working conditions. Field wrote in dissent but represented the “libertarian” strand, often dominating the court, that reduces the bill of rights to protection of property. The current court is not far from this position.
The administration is obviously appointing cabinet members, and soon the court no doubt, who embrace this sinister point of view with a vengeance. In a case closer to our time, a coal mine owner/CEO pumped $3 million into a Virginia supreme court race, defeating the incumbent. His replacement then voted to acquit the mine owner of negligence in the death of minors. The Supreme Court ruled that the justice should have recused himself but our own Chief Justice Roberts dissented.
For the Injustice camp, the books and reference information of the type offered in Millhiser’s book hardly matter. The numbers of people (voters) who encounter it are relatively few and so impact elections not at all.
The book does offer up horror stories in a highly readable, if dense style. Tales necessary for an informed citizenry but also confirmation of the ol’ Biblical saw, increase knowledge, increase sorrow.
It’s not always all doom and gloom, after all, the court ruled favorably on Brown vs Board of Education (just barely, with much rangling despite the final unanimity) ending segregation, and Nixon had to hand over the incriminating tapes… but this history ought to alert us that the anti-democratic faction in our culture is a powerful force that requires a serious, sustained and focused response, the proverbial cost of liberty, eternal vigilance.
- Images: the book cover is a promotional image (fair use); the illustration is by the author, Tom Ferguson.