Unholy Alliance: Revising the Alien Tort Statute

There is an unholy alliance between corporations and American courts. Corporations do not influence the courts through elections. Instead, they rely on propaganda to create a pro-corporate mindset. The judges internalize this propaganda and usually rule in favor of corporations. In general, they believe that what's good for business is good for the country.

A recent disaster at a clothing factory in Bangladesh has crystallized the issue. A fire broke out in a factory and killed 117 people. Numerous foreign companies, including Walmart and the Gap, used the factory and others like it to make their clothing. The fire safety certification, awarded by the fire authorities in Daka, had expired in June 2012 and was not renewed. The authorities noted that the building had a permit for five stories but the owner had built eight and was adding a ninth when the building collapsed.

The government of Bangladesh has arrested the owner of the building. They may have difficulty convicting him of a crime, however. The investigation following a 2006 fire in Chittagong, Bangladesh, did not lead to a trial, despite discovering numerous violations of safety regulations. The question remains whether Walmart and the other foreign corporations involved with the building will receive any punishment for their part in the crime.

Walmart has recently warned its suppliers not to buy merchandise from subcontractors who have not been authorized by the contractor. Walmart's actions reveal that the company would like to avoid liability in any future disasters. This new, somewhat belated, safety campaign does not exonerate Walmart, however. The Bangladesh government has proven incapable of regulating its garment industry. Walmart knew or should have known about government incompetence before the fire in question, since there have been many such fires, including the one in Chittagong where more than 50 people died.

There is an American law, the Alien Tort Statute (ATS), that might have been used by victims of the Bangladesh fire to sue Walmart in American courts. The Supreme Court has been whittling down ATS to make it less comprehensive. In the past, victims of torture in foreign countries have sued individual torturers and won in American court. When victims of corporate criminal conduct began using the law, the Supreme Court changed directions to protect the corporations.

Once they had decided to shield the corporations from civil suits, the Supreme Court discovered, what they had apparently missed in earlier cases, that the Alien Tort Statute did not support “extraterritoriality”, that it could not be applied to crimes committed in other countries. In Sosa v. Alvarez-Machain (2004), the court determined that the Law of Nations, which ATS was intended to enforce, does not include corporate liability.

This theory is nonsense. ATS was passed in 1789. The law of nations has since transformed itself into international law, which does indeed have laws that apply to corporations, including criminal statutes against homicide. What ATS did was to give the victim a chance to recover damages in civil court. By ruling that the law of nations, which is no longer a current legal term, does not include corporate liability, the Supreme Court achieves the purpose of shielding corporations from wrongdoing abroad.ⁱ

Since Sosa, the Supreme Court has gone further to discover that ATS does not apply anywhere outside the United States, effectively castrating it as a tool for individuals to recover damages against corporations.ⁱⁱ We the People can take steps to rectify this injustice by changing the law, but it will not be easy, considering that corporations contribute heavily to the campaigns of our lawmakers, some of whom appear to believe that what's good for the corporations is good for the U.S. Such a law would merely amend the Alien Tort Statute to replace the phrase “Law of Nations” with the phrase “established international law”. Furthermore, the new ATS could state that it applies equally to individuals and corporations. Finally, the new ATS could state specifically that the law applied in any nation where an injustice may have occurred.

i In this instance, corporations have more rights than individual persons, since international law in no way can be considered to exempt persons from its statutes, yet the Supreme Court has discovered that the law of nations does not apply to corporations. This inconsistent treatment of corporations is a proof that the unholy alliance exists and has consequences in the real world.

iiSee http://masrizone.blogspot.com/2013/04/kiobel-v-shell-supreme-court-gives.html.

Unholy Alliance: South Carolina Politicians Suppress Report on the Environment

South Carolina's coastline is rapidly eroding, due to the rising sea level and other effects of global warming. The government of South Carolina should be planning for the changes and budgeting state money to counteract them.

The South Carolina state government, firmly under control of Tea Party climate change deniers, is not preparing for those changes. Instead, it decided not to release a three-year scientific study on what changes have already occurred and what changes are likely in the future.

The study had been compiled by the South Carolina Department of Natural Resources (DNR) under the leadership of its Director, John Frampton. Tea Party darling, Governor Nikki Haley, appointed Caroline Rhodes to chair the board regulating the DNR. Rhodes, in turn, forced Frampton out of his job and replaced him with Alvin Taylor, who explained the suppression of the report on global warming with the ominous words, “priorities have changed”.

Rhodes, a small business owner with no government experience, has been forced to step down as Chairman of the DNR for lying to the SC legislature about her part in Frampton's departure. The DNR has now agreed to release the report.

The global warming crisis has hit hard along the Atlantic coast. Suppression of a report like this in South Carolina is only a minor problem. The real problem is that the government of South Carolina won't be paying attention to the report anyway. They have no plans to combat global warming, but will only react to each event as it happens.

The global warming report contains a list of consequences of global warming for South Carolina's coast. Rising sea levels, salt water intrusion into ground water, disappearing islands, appearance of new exotic species: These are only a few of the items listed in the report. South Carolina needs to decide whether to preserve the sea turtle hatcheries along the coast. If the people want to save the turtles and other endangered species, they need to act now.

It would help them to act if they had a report outlining in detail what they must prepare for.

Our Decrepit Constitution: Remedies (Part Two)

6. Give the President More Domestic Power

The Founders persuaded the colonists to support the revolution by blaming a long list of problems on the King of England. They included this list in the Declaration of Independence. The Declaration also served—pehaps primarily—as a notice to the countries of Europe that the colonies wanted a new country, not reconciliation with the King. The colonists fought against the King and were not likely to accept a new monarch in his place.

The Articles of Confederation lacked a strong executive authority, which was seen as a major weakness. So the new Constitution had to describe a middle road. The office of the Presidency was a compromise between the power of a monarch and the limited authority of an administrator appointed by the Congress.

The President at first glance appears impressive. But the President does not propose a budget; only the House of Representatives can introduce spending measures. The President can appoint his cabinet, but they must be approved by the Senate. The President can negotiate and sign treaties with foreign nations, but the Senate must approve them before they go into effect. Likewise, the President appoints judges, but the Senate approves them.

This situation has lasted for two hundred years. At the beginning, when there was mutual respect between Congress and President, the system worked fairly well. As time went by, it worked less and less well. Today, Congress sees its approval as conditional on concessions from the executive branch, or simply as a way to attack the President.

It is absolutely impossible to imagine a corporation operating successfully under similar restrictions. The CEO appoints subordinate executives without any interference from the Board of Directors. The CEO proposes plans for the Board to approve, but once the plan is agreed upon, the CEO may implement the plan in any manner he or she sees fit. The President should have similar powers.

In line with their limited powers under the new system, the Senate may have veto power over presidential appointments, but only for 60 days. After that waiting period, the appointment becomes official.

7. Impeachment should be abolished

When it came time to establish procedures for removing a President from office, the Framers adopted a complex set of rules for impeachment, modeled after the British Parliament's impeachment procedures. In recent years, other procedures have been substituted for impeachment. The House or Senate may expel a member without any complex, quasi-judicial process. There is no reason to continue using this creaky, 18th century artifact, except that it can be used to completely stymie the political program of a president, as happened in President Clinton's second term. That alone is a reason to abandon the process, not to preserve it.

The last impeachment proceedings held in the Congress, against William Clinton, were entirely political in nature. The Republican House indicted Clinton with only five democratic representatives voting to impeach. The Republican Senate voted to convict Clinton with none of the democratic senators joining the Republicans.

The impreachment of President Clinton was a direct result of a Supreme Court ruling that Paula Jones could bring a charge against him in a civil court because there was little likelihood that he would be hindered in his duties as president while answering the civil suit (Clinton v. Jones, 1997). The Supreme Court was unanimous in this decision and they were completely wrong. Clinton spent much of the rest of his term as president embroiled in the Paula Jones case and the impreachment that followed.

After the National Initiative Amendment is passed, the Constitution may substitute a much simpler procedure involving a recall election. The House may vote for a recall by a two-thirds majority to place the recall on a special election ballot. The election must be held within 30 days to avoid any undue delay. If the President loses the recall election, he is immediately removed from office and the Vice President assumes his duties.

8. Sign International Treaties and Remove Exceptions

American Exceptionalism is a theory that regards the U.S. as a special nation. The idea has become part of conservative dogma since the 1980s. Ronald Reagan introduced the concept, if not the name, in a speech delivered to the first Conservative Political Action Committee. Reagan claimed he had a mystical revelation that America was part of a divine plan that involved men who believed in freedom and had a special kind of courage. 

Reagan backed up his mystical belief in that speech with a number of examples drawn from history, particularly the history of the founding fathers. Most of his examples were entirely false, but Reagan connected with the conservative movement with his folksy charm and his Hollywood-inflected view of the world and world history. 

Since the 1980s, the U.S. has withdrawn more and more from the family of nations. It has failed to sign treaties that offered cooperation on war and peace, the climate crisis, and the law of the sea. While President George H. W. Bush conducted an attack on Iraq with a broad coalition of nations under the auspices of the United Nations, his son rejected the advice of the U.N., instead attacking Iraq with a small coalition of U.S. allies. This action violated the United Nations Charter by carrying out an aggressive war that did not respond to a threat against our nation. 

Bush appointed an ambassador to the U.N. who stated that there was no United Nations, that the U.S. was the only real power in the world and that sometimes the U.S. could persuade other countries to follow its lead. This is an expression of American exceptionalism that few countries in the world could accept.

As a result of this quasi-religious belief in American exceptionalism,

the U.S. Senate has repeatedly failed to ratify treaties intended to increase cooperation between the countries of the world. Instead of leading the rest of the world, the U.S. has pursued its own interests in despite of any other country's opinions.

The Supreme Court has fallen in line with this belief. Its conservative members refuse to consider any court rulings from outside the U.S. as persuasive. This position is insulting to jurists in other countries, especially those who have been working for world peace and cooperation. Rulings of the Supreme Court have also reduced the reach of the Alien Tort Statute, further eroding any possibility of legal remedies for victims of injustice overseas.

We the people must curtail the power of the Senate to block implementation of treaties which the executive branch has negotiated and agreed to. These treaties could be approved by initiative and referendum, but that process is time-consuming and unnecessary. The Senate should have the power to block treaties for one year only. After one year, if the Senate hasn't approved a treaty, it should go into effect automatically.

9. Incorporate the International Declaration of the Rights of Man into our Constitution

The U.S. helped form the United Nations after World War II. We were then the world leaders calling other nations to move toward a peaceful world. In recent years, due in part to the theory of American Exceptionalism, we have moved away from a vision of the world which was ours. We the People should reclaim this vision.

The Framers believed that the Bill of Rights guaranteed all the rights that government should be concerned with. Their vision of the world did not extend farther than that. At that moment in time, the Bill of Rights was a laudable achievement. But we no longer stand at that moment in time.

Americans believed in 1945 that they possessed all the virtues in the world, since their armies had just defeated the alliance that embodied all the evils in the world. Sixty years later, we know better. We have seen our own country commit unspeakable crimes, bomb defenseless civilian populations, torture captives, imprison captured enemy soldiers indefinitely without trial. We can have only two reactions to these crimes: We can embrace a theory that defines them as virtues, since the country that committed them is ordained by God to be the savior of the world; or we can atone for our errors by becoming the world leader for peace and prosperity that we once were and can be again.

Heavy Trousers: Tales from an Electrical Apprenticeship

Two weeks ago, I noticed a new pain and tightness running down the center of my lower back. The low back pain was freaking me out because I couldn't pinpoint what was causing it. Last year, when I was seriously contemplating this career move, physical agility was - and still is - the forefront of my concerns. My body is now my most valuable tool and I can't afford to injure it or mistreat it! I love working for an electrical shop who places a high priority on our morning stretch and flex routines. Yet I have let my personal maintenance slide. Our 10 hour work days have pulled me away from my typical gym and swimming routines: I'm simply too worn out by the end of the day to be as attentive as I was when working our standard eight hour days, and each day does not necessarily bring the exercise my body needs. I'm still getting about an hour's worth of cardio and stretching work out (outside of work) three times a week. This back pain is a warning sign I will not ignore.

A couple days ago, while placing my favorite tools into my pants pockets, I had an "aha!" muscle twinge. The culprit seemed to be heavy trousers! The weight of the tools plus the weight of my belt and heavy canvas pants don't amount to much: maybe six to nine pounds. But the way my pants land around my waist, compounded by the long days and long weeks, turns out to be a cumulative problem for my back. Both this electrical contractor and the one I worked with before are "no tool belt" kinds of shops. We each get our own cart and use these as our work stations. Most of the electricians (and even the other trades around us) are adamant about wearing suspenders with their tool belts - if they use tool belts at all. And now I'm understanding the consequences of having weight around the waist with no secondary support. I'm guessing seasoned/frequent scuba divers, who wear their weight belts around their waists, might have similar issues despite the buoyancy and support they get in the water.

I've invested in my first pair of overalls and until the back pain resolves itself, I'm carrying NO tools in my pockets. So far, this seems to be doing the trick. My crew thinks it's funny to make kangaroo and farm-girl jokes at me now: and it's all in the spirit of camaraderie. I love these new overalls so far and I'm especially grateful at how the wardrobe requirements of this new career are much more practical (and less expensive) than the typical office job.

I am carving out the time to get back to a physical workout routine, despite the long days. This Pocket Yoga App helps me work through my inner excuse dialogue. And on the days where I don't need to be somewhere directly after work, I pack my gym bag and hit my closest gym: this helps me avoid the gnarly traffic, too. I admit: I'm ashamed when I catch myself having harsh judgemental thoughts when I see my extremely out of shape brothers in the field. How on earth do these guys do it? They can't touch their toes and they pack around an extra 30%-50% body weight. Several times now, I have been "the only one to fit" in tight work spaces. My newly revived actions to stay in shape is both carrot AND stick - the stick portion being, "Please do not let me turn out to be like THEM!" I have the feeling I will be setting up a completely different routine (and moments of appreciation) when I can be assigned to an ONLY eight-hour work day!

Heavy Trousers was originally published on My Electric Avenue by Jeanne Slate.

Our Decrepit Constitution: Remedies (Part One)

The National Initiative Amendment (NIA) is the only way to resolve our Constitutions problems in the long run. There are a number of stop-gap measures we can take without amending the constitution, but these would be just as hard to pass as the NIA, so there would be little point in wasting our energy on them. Once we give the power to amend the Constitution back to We the People, there are a number of measures we can take to restore the balance between competing interests.

1. Increase the number of Senators

The Constitution provides for two senators to represent each state. This has led to many problems, chief among them the fact that California, with 35 million residents, has the same number of senators and the same relative power as Delaware, with under a million. This imbalance leads to defeats for issues of interest to large states, such as gun control.

The U.S. Senate was modeled on the House of Lords. Like the Senate, the Lords became a barrier to passing bills for the common good. The House of Commons partially resolved the problem by increasing the number of Lords. We, the People, could resolve the Senate problem by adding another 100 Senators to be elected at large. By definition, these Senators would represent a larger constituency than any of the current Senators. Small states would still have disproportionate representation, but nothing could stop one of the small-state senators from running at large. Such a candidate must appeal to a broader electorate than one running in a small, homogeneous state.

Other, more drastic measures may be taken. The Senate could be abolished altogether, or Senators could retain the ability to block bills (which is their primary function now) but only for three years.

2. Elect the Supreme Court

Life appointment for Supreme Court Justices was intended to free them from political pressures, giving them liberty to vote their conscience. This idea never worked very well, since the Justices are nearly always members of the elite classes. Recently, the idea of apolitical Justices must appear a cruel hoax. Observers can usually predict which justices will join a majority. Presidents appoint younger and younger justices to prevent the opposing party from gaining a majority on the court. Retiring justices choose the terms of like-minded presidents to give up their seats. The Court has actually become a third legislative body, one with even less variety of opinion than the Senate.

We, the People, should make the Court responsible to us by forcing the Justices to run for election every seven years. Renowned jurists who can't get seats on the current, highly politicized court, should be happy to run for such a prestigious post. Presidents could still fill vacancies with the consent of the Senate, but they would be forced to make better choices if they want their appointees to withstand an electoral challenge.

3. Normalize the Laws

Another measure would be to remove the appellate responsibilities from the court, or abolish the federal bench entirely. The Federal Bench exists side-by-side with the state courts, with many of the same responsibilities. All courts should be combined into a single, national system of district courts and appellate bodies. Instead of striking down laws they deem improper, the judges in this system could replace the offending laws with others that have been passed in other states. Many states have similar legal codes already. This blending of federal with state authority would discourage state legislatures from passing frivolous laws that pander to the electorate.

This system would also discourage well-heeled groups like ALEC from changing the laws, state by state, to favor corporations and the wealthy. Judges would be free to ignore changes made by ALEC and other groups in favor of more moderate laws.

Lawyers should be allowed to practice in any state, since the laws would, over time, tend to be similar. State Bar Associations would lose their monopoly control of the legal profession. Legal professionals could practice in any state without fearing law suits from the State Bar. The cost of legal assistance would decrease, enabling ordinary people to better afford lawyers.

4. Abolish the Electoral College

We, the People, should elect presidents by majority vote. If no candidate achieves a majority, we should hold a runoff election. Third parties would be able to participate in elections without fear that their participation would defeat candidates with whom they agree on most issues.

There is currently a National Popular Vote movement (NPV) to sidestep the electoral college by passing laws in each of the states. These laws commit the states to cast their electoral votes for the candidate who wins the majority of all votes cast in all states. NPV flips current presidential campaigning on its head. Candidates would spend most of their time and money in the largest states instead of in the key swing states.They would have to take positions on important issues instead of avoiding them.

NPV avoids the Amendment process but ends up with laws that can be repealed without using the Amendment process. It also fails to institute a runoff system, as described above. It does not encourage third party candidates, since it will rob them of any electoral votes they might have gotten using the current electoral system. This could lead to appeals through the courts, throwing elections into confusion for other reasons, such as when a third-party argues that the anti-electoral college law prevents third parties from getting the votes necessary to appear on ballots. Current election laws are a tangled thicket that may cause unforeseen problems.

The instability of the NPV, which could be undone by the votes of only a few states (assuming it ever passes) will lead to more electoral confusion, not less. The supporters of this plan have a good idea, but the execution would likely be chaotic and reversible within a few years. NPV will go into effect when the states that have adopted it have enough electoral votes.

NPV now has about 50 per cent of the states necessary to put its plan into action. From here on, however, it will run into the same problem of the electoral college, only in reverse. Each state that passes NPV will now be a state that benefits from the current situation.

Another movement, much less realistic, to reform the electoral college would divide the nation into 50 new states with equal populations. The logistics of this proposal make it impossible. State governments are huge, unwieldy bureaucracies that have taken root in one place for up to 200 years. Moving one of these bureaucracies to a new location would create a complex mess and cost a fortune. Moving 50 of them might take another 200 years.

5. Undo the Corporate Strangle Hold on Our Laws

In the late nineteenth century the Supreme Court discovered that the Due Process Clause of the Fourteenth Amendment applied to corporations, though they couldn't figure out how to use it to help African-Americans. In 1890, Congress passed the Sherman Anti-Trust Act to regulate corporations. The Courts permitted the Sherman Act to be used against Unions, which it declared illegal combinations as defined by the law. In United States v. E. C. Knight Company (1895), the Supreme Court upheld the appeal of the American Sugar Refining Company, which controlled 98 per cent of sugar refining in the U.S., because this control did not constitute a restraint of trade.

During the last years of the twentieth century, Congress responded to public concern about corporate lobbyists influence in politics by passing modest reforms. In Citizens United v. FEC (2004), the Supreme Court reversed much of what reformers had accomplished. In his dissent, Justice Stephens cited earlier Court decisions that recognized that corporate spending on elections should be viewed as a business transaction designed for no other purpose than profit-making. Corporations unfairly influence elections with vast sums of money that few individuals can match. Finally, Stephens pointed out that the mere appearance of impropriety fostered by Corporate campaign contributions would have a chilling affect on voter participation.

Stephens' arguments fell on deaf ears. The Court, as so often before, sided with corporations against the interests of ordinary citizens. One protection for We the People would be to limit the power of the Court by limiting its terms and making it easier to overrule their decisions with a national initiative. Critics of the Citizens United decision have proposed a Constitutional amendment to overturn it. A constitutional amendment would require majority votes of both houses of Congress and passage by three-fourths of the state legislatures. The amount of time, energy, and treasure necessary for the effort is enormous. This massive effort, involving millions of citizens, is required to counter the opinions of five Republican Justices. Nothing about our republic is less democratic than this proposition.

An amendment should be passed outlawing corporate spending in political elections. Laws should be instituted imposing heavy penalties for corporate officers who authorize anonymous spending from the corporate coffers.

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amentdments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.¹

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, upon which the military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perptrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.²

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be a sort of public servants, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

___________

1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), http://books.google.com/books?id=QEwTAAAAYAAJ&pg=PA16&lpg=PA16&dq=george+ashburn+murder&source=bl&ots=u4jYy1SKzI&sig=csGygOILiQ6j5e-RfFFGKQ-9Ha0&hl=en&sa=X&ei=_Hh9UcibCpTG4APiooDgCg&ved=0CHoQ6AEwCQ#v=onepage&q=george%20ashburn%20murder&f=false. Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.

2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877), http://openlibrary.org/books/OL22894692M.

To My "Staunch Republican" Friend: a Letter

[This is a letter I wrote to a friend, after she sent me a (gentle) reprimand for challenging a friend of hers on Facebook.  She informed me that she was a "Staunch Republican", and said that she didn't like politics, but that she didn't want me to insult her friends.  I care about her, and I put considerable effort into composing this response.]

Firstly, let me say what I would have said before, if your friend's comments had not intervened: I am very happy for you and your daughter, that she was able to witness such a historic event (I don't believe we've ever even had five presidents ALIVE at the same time before, let alone all collected in one place), and I also congratulate you on her brilliant blossoming! You must be so very proud... as I am of my son.

Regarding the rest, I am not sure you DO entirely appreciate my heart and sentiments. I am sure that you can understand what it is to be passionately committed-- and I am certainly aware that you have a heart and brain! I too, was raised Republican-- though I didn't learn what that meant, till I was an adult. It was quite a shock for me to discover that the party of my parents (or rather, my father's party; my mom became quite liberal after she got away from him) was diametrically opposed to practically everything I believed in! Since then, I have voted with my heart and mind-- and increasingly, as the years have passed, I have found it necessary to investigate the sources of statements that are presented to me as truth.

Increasingly, the wealthy and powerful in this country, particularly the corporations, have been able to manipulate the media, to purchase our lawmakers, deceive the people, and to literally mold the country to suit themselves. Their intentions have nothing to do with honor, and everything to do with profit, and control-- whatever they may say. Surely you must be aware that Fox News, for example, does not have a sterling reputation for truthfulness? That's money and power talking!

I understand that you have worked for many years in a highly conservative, largely male environment-- and since you were also raised Republican, there has probably never been much incentive for you to question your core beliefs. Such things do deeply influence us.

I am also sure that there is much to admire in your law-enforcement friends. There used to be much to admire in the Republican party, as well. It is NOT what it was. The Republican party that your father, and my father, were raised with, was much more aligned with the beliefs of mainstream Americans; at one time, to be Conservative really did mean, to be conservative. Cautious. Thrifty. Traditional.

But it doesn't mean that anymore. When you tell me that you are a "Staunch Republican", you are telling me that you ally yourself with the party of Big Oil, of global warming denial, the party that is STILL fighting tooth and nail to deny women the right to control their health, and their bodies, and their right to not be raped. You have allied yourself with the party that thinks gay and lesbian couples aren't as human and worthy as the rest of us... the party that STILL hopes to deny me my first chance ever to have health-care... the party that just deep-sixed the President's gun regulation agenda. The party that wants to teach creationism, take away the last safety-nets for the poor, the unemployed, the elderly, and the disabled, to persecute undocumented immigrants... and make sure my vote doesn't count. (oh, and if you question the accuracy of any of the above, let me know-- I'll be happy to look up the sources and send them to you).

Can you see why I might find your allegiance difficult to accept? I don't know what your personal beliefs are... but when you support the Republican party, you support all these things. From my point of view, you might as well have said, "I'm rooting for Darth Vader and the Evil Empire-- but it's just politics. Let's get beyond that, shall we?

I don't want to fight with you, or with anyone. The other night, when I sent that message to you, a surge of adrenaline went through me that kept me awake all night. It's SCARY for me, to tell people where I stand, and what I believe... possibly because it wasn't safe for me to do that, growing up. But more and more, I am finding that I MUST speak. I CANNOT stand by, and watch what is happening, and say nothing. I also hate talking about politics. But if I keep my mouth shut, when someone makes a racist or sexist or hate-filled remark, how will anything ever change?  

Your friend's remark was so incredibly unfair, too. He reminded me of the bully in elementary school (I don't know if you experienced this, but I certainly did) who repeatedly punches you with your own arm, all the while chanting, "Stop hitting yourself! Why are you hitting yourself?". Obama isn't ineffectual. He's been very effectively blocked in almost every action he's attempted-- by the most consistent, concerted Republican effort this country has ever seen. Surely you and your friend are aware of that?

So where are we now? I'm not sure. Certainly I will always love and care about you, always wish you well. But your politics are so repellent to me that I must admit, it makes me very uncomfortable. I know you to be a kind and honorable and loving person, a devoted parent... so how can you support such appalling causes? I have a couple other friends and relatives who fall into this category... and I find, frankly, that it makes me want to avoid them.

I don't want to avoid you. But I do have one request: when you hear things on the news, or from your friends, could you PLEASE question the source?! Since you've been an investigator, you already know how to do that. It's not hard to find out the truth about things... if you look for information from sources that are actually reputable. Fox News is not; neither is CNN, nor the Heritage Foundation, or a slew of other propaganda machines... most of them right-wing, and funded by right-wing oil money. (I'm not saying there aren't foul, lying, mercenary Democrats; there most certainly are... and I LOATHE them. But they're working for the same people as the Republican ones.) For myself, when I really question something, I frequently look it up on Snopes.com. They have no axe to grind... I highly recommend them.

I know you didn't want to hear all this from me... and frankly, I didn't want to have to say it. But if the alternative is for me to be silent, or to lie... well, I just can't do that. Not anymore.

Love,

Holly