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In a shamefully revealing article on the Supreme Court, Jeffrey Toobin writes in the May 24 issue of the New Yorker that "the civil rights revolution of the Warren and Burger Courts [..] was built on overruling the expressed will of the people", something that could only be true if black people are not people. This corresponds to the right wing theory that the post-civil war Constitutional amendments are not parts of the Constitution. What really happened is that the racist laws and customs of pre-civil rights south were established by widespread use of terrorism, torture, murder, and assault - not just on black citizens, but on any white citizens who refused to go along. Then the openly racist Supreme Court of the late 1800s nullified the post civil war Constitutional amendments. Toobin's  morally putrid attempts to equate the Warren Court's mild efforts at reversing this atrocity with the  rulings of the Roberts court are a particularly offensive version of the false objectivity popular in some parts of the media.

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If you read accounts of the Congressional debate on the 14th Amendment, you get flavor of what was intended: Congress discussed the open assault on black citizens, theft of their property, violent suppression of their rights to bear arms, and murder and terrorism by the unreconstructed Confederates. Here's how the "will of the people" was expressed in Alabama in 1874:

In August, two Republican leaders, a black and a carpetbagger, were assassinated, and others saw white mobs destroy their homes and crops. Meanwhile Barbour Coounty whites [..] instituted a "perfect reign of terror". Nonetheless, hundreds of blacks marched on election day to Eufaula, Barbour's chief marketing center, hoping to cast their ballots. To avoid pretext for violence, they came without weapons, a decision that proved disatrous when armed whites began firing into the crowd killing seven blacks and wounding ten times that number"
(from Foner, Reconstruction and see  also)
The 14th Amendment says
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
But the Supreme Court, in a series of decisions that reads like something out of Orwell, decided that the amendment didn't mean anything of the sort. They ruled that the Federal government could not enforce civil rights laws and that "citizenship" didn't convey any rights that states needed to observe (see for example http://en.wikipedia.org/... ). In fact, the grotesque Orwellian way in which the Supreme Court of the 1800s interpreted the 14th Amendment was not equaled until the 2000 decision that the Amendment assured George W. Bush's right to be President despite losing the election. And that's no coincidence.

Toobin is writing about the expected challenges to health care reform, financial reform, and even net neutrality on the part of the neo-Confederates who lost power by election.  President Obama and others have been attempting to set the stage for this confrontation by arguing against Supreme Court "activism" in which the Court attempts to write the laws. Sammy Alito's Ledbetter decision in which he invented an excuse for making it impractical to sue employers who violated equal pay laws is a classic example of judicial activism. What Toobin argues is that "both sides" value judicial restraint or "activism" when it supports them. But that's a bogus reading of the record. It took an activist right wing court to nullify the 14th Amendment in favor of the Klan and White Citizens Council, to declare that NY State had no right to limit working hours for bakers, to try to defeat the New Deal, to pretend that corporations are persons (although black people are not people).

What the Warren Court did was acknowledge that a Constitutional amendment that required "equal protection" of the law for all citizens actually meant what it said. There are two sides to every question, of course, but when one side is made up of lying, hypocritical apologists for slavery, murder, corporate excess, and election theft, and the other side wants to keep the internet uncensored, it's not moderate, sensible, or even honest to claim some sort of equality.

Extended (Optional)

Originally posted to citizen k on Fri May 21, 2010 at 06:15 PM PDT.

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