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Parry writes: "The reality is that these guys act as if they've never read the Constitution and have spent too much time watching Fox News."

Illustration, the signing of the US Constitution. (photo: GenealogyOfConsent.WordPress.com)
Illustration, the signing of the US Constitution. (photo: GenealogyOfConsent.WordPress.com)


Perverting the Constitution for Power

By Robert Parry, Consortium News

04 March 2013

 

The U.S. Supreme Court’s right-wingers are making bizarre arguments for gutting the Voting Rights Act, suggesting their real goal is to allow more suppression of minority voters and thus elect a Republican president who will keep the right-wingers as the Court’s majority, writes Robert Parry.

fficial Washington's boilerplate regarding the five right-wing justices on the U.S. Supreme Court is that they are "strict constructionists" who believe in a literal reading of the Constitution. But the reality is that these guys act as if they've never read the Constitution and have spent too much time watching Fox News.

For instance, Justice Anthony Kennedy, who is widely regarded as the "reasonable centrist" in this group, seems to believe that the Constitution made each state an "independent sovereign." He used that phrase last Wednesday in oral arguments on whether to strike down the Voting Rights Act and especially Section Five, which requires jurisdictions with histories of racially motivated voter suppression to get federal court permission before changing their voting laws.

Kennedy expressed concern that this requirement violated the constitutional provision declaring each state, in this case Alabama, to be an "independent sovereign." However, there is no such language in the U.S. Constitution. In fact, the Constitution intentionally expunged language about states being "independent" and "sovereign," which appeared in Article Two of the Articles of Confederation as it governed the United States from 1777 to 1787.

The problems caused by that language led to the convening of the Constitutional Convention in Philadelphia in 1787. The idea of 13 "independent" and "sovereign" states had proven unworkable, so George Washington, James Madison and other Framers jettisoned it in favor of national sovereignty invested in "We the People of the United States."

General Washington, who presided at the convention, was a particular foe of state "sovereignty" because he and his revolutionary soldiers had suffered under the chaos of 13 "independent" states failing to meet obligations to fund and equip the Continental Army. That chaos then continued through the first years of independence.

So, the Constitutional Convention ignored its instructions to simply propose amendments to the Articles of Confederation and instead threw them out altogether, including Article Two which read: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated."

In the Articles of Confederation, national sovereignty was specifically denied the central government, which was not deemed a nation or government but simply a "firm league of friendship." That power relationship was essentially flipped by the Constitution, which made federal law supreme and left the states responsible mostly for local matters.

Rewriting the History

The consolation prize that the states got was the Tenth Amendment which, in effect, replaced Article Two of the Articles of Confederation and must be read in comparison to that language of "sovereignty, freedom, and independence." The Tenth Amendment simply states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Though the modern American Right has sought to make the Tenth Amendment a central governing principle - claiming that it tightly constrains the federal government and gives broad authority to the states - the amendment was really a rhetorical sop to the Anti-Federalists. It had very little meaning since the Constitution granted sweeping powers to the Congress and to the President, which is why the Anti-Federalists fought so hard to block ratification.

But the Right's narrative of the nation's Founding often ignores why the Constitution was written, i.e. to obliterate the failings of the Articles of Confederation. By deleting that key part of the story, the Right can pretend that the Framers were seeking a weak central government and were enamored of states' rights, when nearly the opposite was true.

So, you'll hear in the ubiquitous right-wing media this "scholarship" about how the Framers wanted the states to be "sovereign" and "independent." But what was alarming about Kennedy's remark is that it appears this bogus narrative has now seeped into the U.S. Supreme Court, where the right-wing justices seem to believe the Articles of Confederation are still in force. [For more on this history, see Robert Parry's America's Stolen Narrative.]

Kennedy is seeing language that is not in the Constitution. One has to begin to wonder if he is simply in thrall to the right-wing faux history, or is he just another political activist masquerading as a justice, eager to do what he can to insure that a Republican succeeds President Barack Obama and then will appoint new right-wing justices when some of the current ones retire.

In this apparent pursuit of a permanent right-wing majority on the Supreme Court, Chief Justice John Roberts presented his own sloppy reasoning for striking down Section Five of the Voting Rights Act. He claimed - without providing a source - that the proportion of blacks voting in Mississippi is much higher than the number in Massachusetts. Roberts called Mississippi the best and Massachusetts the worst.

But Massachusetts officials, including aides to African-American Gov. Deval Patrick, denied Roberts's claim, and Supreme Court clerks declined to provide data to support the Chief Justice's claim, which apparently originated in a dubious reading of Census data.

But the central flaw in Roberts's argument - even if his numbers were right - is that no one is alleging that Massachusetts has a history of Jim Crow laws suppressing the black vote. Mississippi does. And it's fair to say that the Voting Rights Act is a principal reason the black vote is as high as it is.

Voting as 'Racial Entitlement'

Rounding out the right-wing justices' efforts to transform the high court into what sounds more and more like a Fox News' pundit panel, Justice Antonin Scalia threw in his cranky notion that the Voting Rights Act was a "perpetuation of racial entitlement," suggesting that the right of blacks to vote was some kind of federal government handout.

Scalia, who is widely acclaimed by the mainstream media as a great legal intellect, apparently has little knowledge of the Fifteenth Amendment, which states: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation."

That would seem to make clear that Congress has the authority to exercise its judgment in protecting the rights of blacks and other minorities to vote, which Congress did in passing the Voting Rights Act in 1964 and overwhelmingly reauthorizing it as recently as 2006.

But now the right-wing clique running the U.S. Supreme Court seems ready to ignore the wording of the U.S. Constitution, to rely on some dubious data, to utter some inflammatory words, and to apply language from the inoperative Articles of Confederation to gut the Voting Rights Act and permit the restoration of Jim Crow laws.

Based on this anything-goes interpretation of the U.S. Constitution, these right-wing justices are now expected to at least strike down Section Five, thus clearing the way for Republican-controlled states to enact new ways to devalue the votes of blacks, Hispanics, Asian-Americans and urban white youth who embrace the nation's multiculturalism.

One almost expected these right-wing justices to resurrect the "Three-Fifths of a Person" clause, which was repealed by the post-Civil War amendments ending slavery and asserting equal protection under the law. Why not? If they're reaching back to the state "sovereignty" and "independence" in the Articles of Confederation, which was repealed by the Constitution, why not embrace the concept that whites are more of a person than non-whites?

The Court's right-wing majority seems determined to do whatever it can to get another Republican president into the White House as soon as possible so their majority will be sustained, much as five Republican partisans installed George W. Bush after Election 2000, although he lost the popular vote and would have lost Florida if the Court had allowed all legally cast ballots to be counted.

However, as Bush's fate and the Court's Republican majority hung in the balance, five GOP partisans - including current Justices Scalia, Kennedy and Clarence Thomas - suddenly fell in love with the post-Civil War's Fourteenth Amendment and its "equal-protection-under-the-law" principle. With Kennedy writing the majority opinion, they somehow twisted it into an excuse for not counting the votes of blacks and poor people.

That way a Republican was put into the White House and could fill Court vacancies, which Bush did in selecting John Roberts and Samuel Alito to replace William Rehnquist and Sandra Day O'Connor.

Now, by overturning much if not all of the Voting Rights Act, the Supreme Court's Republican majority could clear the way for more suppression of non-white votes and thus increase the chances that a Republican president will be in place to ensure that the right-wing majority doesn't slide into the minority.

[For a limited time, you can purchase Robert Parry's trilogy on the Bush family for only $34. For details, click here.]
Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America's Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).


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+28 # Walter J Smith 2013-03-04 18:21
It seems the Roberts GOP SCOTUS majority wants to run all the non-whites out of the South. Do they realize that could easily undermine the already shrinking Southern GOP block of electoral votes?

Besides, Texas demographics suggest the GOP is on short notice of their loss of that state. So, what are they thinking. If they are thinking.

I don't suppose they think about the whole Constitution as much as they angle and fanigle and cajole to make the Constitution say whatever they want it to, no matter how bizarre.

They are only helping Rove and the rape-legitimati on wing of party pull the GOP further into the shadows.

And I couldn't imagine anyone doing that any faster than they are.
 
 
+12 # Madmedic 2013-03-05 11:27
Quoting Walter J Smith:
It seems the Roberts GOP SCOTUS majority wants to run all the non-whites out of the South ... They are only helping Rove and the rape-legitimation wing of party pull the GOP further into the shadows.


And just where are the "non-whites" supposed to go? With governor Rick Snyder of Michgan working diligently to force "those people" to abandon Benton Harbor, Flint, Pontiac and now Detroit by taking away their rights to self governance and then stripping those cities of their crown jewels (the lakeside park in Benton Harbor, the Pontiac Siverdome and who knows what in Detroit) by selling them to his corporate buddies.

Michigan is a textbook example of the real "ghettoization" of American cities that the republicans have planned for the rest of the U.S. when they they get, or make, the chance to do it in other places. Flint, Pontiac and Detroit are sad, hollow shells of what they once were, but they are still the places their residents choose to live. Facist corporate America is now in the process of turning them into the Warsaw ghettos of the U.S. How long will it be before the Michigan legislature and their Fuhrer, Rick Snyder, begin requiring travel passes for the residents to leave and reenter these cities? Maybe they will be allowed, or "helped," to leave permanently for resettlement areas with names like Happy Valley (the new Auschwitz and Buchenwald),etc.

Watch Michigan. Which rep. run state will be next?
 
 
-2 # Junius 2013-03-04 23:23
"Though the modern American Right has sought to make the Tenth Amendment a central governing principle - claiming that it tightly constrains the federal government and gives broad authority to the states - the amendment was really a rhetorical sop to the Anti-Federalist s. It had very little meaning since the Constitution granted sweeping powers to the Congress and to the President, which is why the Anti-Federalist s fought so hard to block ratification."

Be of good cheer. The Bill of Rights was indeed a sop to the losers. The 4th, 5th, 6th and 8th are dead letters.
 
 
+9 # wantrealdemocracy 2013-03-05 09:35
The whole of the Constitution and our Bill of Rights have been trashed. We no longer have any democracy in this nation. We are ruled by the corporate elite though the Congress they have purchased. It is time to convene a Constitutional Convention to rewrite our Constitution. Congress will not do this. We, the people, must demand this by thousands of us out protesting what our rotten corrupt government is doing now. There are endless wars and now austerity. The guv throws trillions at the bankaters and put the population into ever deepening poverty.
 
 
+5 # Depressionborn 2013-03-05 11:11
Quoting wantrealdemocracy:
The whole of the Constitution and our Bill of Rights have been trashed. We no longer have any democracy in this nation. We are ruled by the corporate elite though the Congress they have purchased. It is time to convene a Constitutional Convention to rewrite our Constitution. Congress will not do this. We, the people, must demand this by thousands of us out protesting what our rotten corrupt government is doing now. There are endless wars and now austerity. The guv throws trillions at the bankaters and put the population into ever deepening poverty.


so how would you rewrite if they aren't going to follow it? First things first.
 
 
0 # Depressionborn 2013-03-07 00:15
Quoting Junius:
"Though the modern American Right has sought to make the Tenth Amendment a central governing principle - claiming that it tightly constrains the federal government and gives broad authority to the states - the amendment was really a rhetorical sop to the Anti-Federalists. It had very little meaning since the Constitution granted sweeping powers to the Congress and to the President, which is why the Anti-Federalists fought so hard to block ratification."

Be of good cheer. The Bill of Rights was indeed a sop to the losers. The 4th, 5th, 6th and 8th are dead letters.


Likely so, but if we can keep the 2d we can make a fight of it.

"If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State."
–Joseph Goebbels, Minister of Nazi Propaganda
 
 
+17 # Depressionborn 2013-03-05 02:52
It seems to me that the Bill of Rights was written to protect all of us except for slaves, which took a civil war. We should follow it now as written, and the same way for all, no exceptions. The law must be equal or it will become favor politics.
 
 
+22 # mdhome 2013-03-05 06:36
The supreme court is looking like it is unconsitutional .
 
 
+2 # RLF 2013-03-05 07:11
The right is at war with the Constitution. The Democrats (I won't call them left, because they just aren't!) are also. Obama ignores the constitution because by studying it at Harvard, he knows it better than the rest of us, so he knows he can get rid of habeas corpus, etc. He's smart!
 
 
-23 # egbegb 2013-03-05 07:55
There are scattered facts in this mostly fictional story of the US Constitution. Taking to heart anything found here would be foolish and prove embarrassing among educated friends.
 
 
+8 # randi1randi1@yahoo.com 2013-03-05 10:01
How about some examples of how this is a fictional story? Thank you.

Randi
 
 
+19 # fredboy 2013-03-05 09:09
I taught constitutional law for 25 years and realized the document has been "perverted for power" since its inception. It is noticed more now because 1) people are more educated and aware of the document and its contents 2) the science of persuasion and influence has been exploited by all political players, and 3) the "news" media no longer challenges perversions but simply echos them. Add to this the legions of obedient souls cowered and suckered by organized religion and extreme politics. Quite a mess.
 
 
+8 # restore2america 2013-03-05 10:40
Quoting fredboy:
I taught constitutional law for 25 years and realized the document has been "perverted for power" since its inception...


Spot on. One need only look to John Adams and the Alien and Sedition Acts... Second president, and he believed in stripping anyone who opposed him of their constitutional protections from government abuse.
 
 
+2 # restore2america 2013-03-05 09:09
The Constitution does not specify rights for the People. It specifies areas that the government MUST not infringe upon. All other rights belong to the states and the people.

Both the "right" and the "left" are perverting the Constitution for power and to benefit their corporate sponsors. Ever wonder why the left and right argue over 4th amendment and 2nd amendment rights and who is entitled to what protections under the Constitution?

The reason the left and right are being juxtaposed into these shan disagreements is clever: it distracts the people from the basic problem: government that exceeds the limits placed upon its power by the Constitution.

As long as factions fight to take away the other guy's favored rights and to preserve their own favored rights, nobody is watching the government as it tramples EVERYONES' rights.
 
 
+9 # CenTexDem 2013-03-05 09:46
So the "centrist" Justice Kennedy is confusing the Articles of Confederation with the U.S. Constitution and apparently forgeting his grammar school history lessons? After his "judicially legislated amendment of the Constitution in Citizens United why am I not surprised!
 
 
+4 # MidwestTom 2013-03-05 09:59
It is one thing to support the voting rights of all Americans. It is another to sit back and realize what the dumbing down of education has left us with for voters. When a Pew research pole last year found that 9% of Americans eligible to vote could not name the sitting President, I am concerned. O fear that a significant percentage of voters would fail the Marshmellow test as reported by Stanford psychologist Walter Mischel. As their numbers grow it puts at risk the entire nations future.
 
 
+7 # wwway 2013-03-05 10:23
As a constitutional law student I've found it easy to argue for the constitution. However, if you listen to folks like Scalia, Tea Party and right wing Republicans and Christians you'll realize that they want to dismantle the Constitution and return us to living under the Articles of Confederation. The Articles of Confederation had no teeth. states did what they wanted and reneged on their agreements with the weak centeral power. They didn't want to pay for the Revolutionary War resulting in unpaid debt to France and one wealthy private citizen. It was necessary to reconvene a constitutional convention to which our current constitution resulted. Government without teeth is what they want.
However, if that is accomplished they will also insist on their seats in power. Government will be just as big as it is now but our reps will demand pay for doing nothing.
 
 
+2 # cmp 2013-03-05 11:03
Tony, the "Supremes" told you, back in 65:

From this old world
I try to hide my face
But from this loneliness
There's no hiding place
Inside this cold and empty house I dwell
In darkness with memories
I know so well

I need love now
More then before
I can hardly
Carry on anymore

My world is empty without you, babe
Without you, babe
(My world is empty) without you, babe

~Songwriters: (Brian Holland/Lamont Dozier/Edward Holland, Jr.)~
 
 
+3 # reiverpacific 2013-03-05 11:24
"Official Washington's BOILERPLATE regarding the five right-wing justices on the U.S. Supreme Court-!" [QV]
Now THERE'S a strangely obtuse opening statement. Then we get "The consolation prize that the states got was the Tenth Amendment-!" [QV]
As a resident of this country, it's my perceived obligation to familiarize myself with it's history & constitution, as I have with any country I've lived in, and it never ceases to amaze me that so much of the constitution, in it's original and amended forms, is obviously contradictory (the amendments (presumably to keep up with appropriate times), thereby very much open to interpretation and abuse, depending on which version of intent and intent-amendmen t is turned to for interpretation, especially by this particular SCOTUS, most especially by Scalia and his silent lapdog, Thomas.
This is exemplified quite neatly by the noted recent example of "reasonable" Kennedy who is often a swing vote on contentious issues but which in this case seems only to confuse and obscure the point at issue rather than to deliver a comprehensible judgement, which is what I thought these bods were there for, in declaiming from on high to us lesser beings who don't have law degrees.
The much recently-quoted (and abused) second amendment is my favorite example of this and seems like one example of sorely and quickly requiring an amendment to suit these looney gun-crazy times, and be linked to simply stated specifics.
 
 
+7 # Rcomm 2013-03-05 11:48
Since most of the GOP does not place much value on truth and facts, why is it surprising that the Supreme Court justices who support GOP ideas would have the same moral position?
 
 
+7 # fhunter 2013-03-05 11:54
Republican Party members and Republican Party unJustices are unable to live with FACTS.
 
 
+3 # geraldom 2013-03-05 15:38
Supreme Court justices Scalia, Thomas, Alito, and Roberts were not given their appointments by Republican presidents to uphold and protect the Constitution as the oath of office requires. They were nominated to uphold and protect Republican Party interests.

They know that the vast majority of their decisions, under normal circumstances in a neutral court setting, would have been found to be unconstitutiona l, but they don't give a damn.

Justice Kennedy is another matter. Appointed by a Republican president but not as extreme as the other four, why he has sided more often than not on the side of the wrong decisions made by the other four, I can only surmise that there was some backroom pressure put on him by his four Republican-appo inted colleagues and perhaps by other very powerful outside influences.
 
 
+3 # JSRaleigh 2013-03-06 13:20
I find the argument that the Voting Rights Act should be applied universally rather than in just parts of nine states to be cogent.

While those nine states have improved, if only marginally, since the enactment, the other forty-one states that were outside the scope of the original act have become much more discriminatory.
 
 
+1 # geraldom 2013-03-06 20:14
Quoting JSRaleigh:
I find the argument that the Voting Rights Act should be applied universally rather than in just parts of nine states to be cogent.

While those nine states have improved, if only marginally, since the enactment, the other forty-one states that were outside the scope of the original act have become much more discriminatory.


Perhaps not all 50 states, but certainly those large battleground states that the Republicans took over from top to bottom as a result of the 2010 midterm elections. It also surprised me to find out that two out of the five boroughs of New York City are on the current list for Section 5 of the Voting Rights Act.
 

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