Pages 55-81, in The American Political System, David S. Greenberg, Little, Brown & Company, Third Edition, 1983
Law and the Constitution
THE MYSTIQUE AND BIAS OF THE LAW
This chapter enters upon terrain so obscured by mythology, wishful thinking, and patent distortion of the facts that you may well resist efforts to shed some light on a little- understood aspect of American life: the nature of the Constitution and the basic law of the land. Most Americans seem to share the view that no matter what else might be amiss in our country, no matter how unequal the distribution of benefits and burdens in other areas of social, economic, and political life, we remain a society subject to a body of law and a set of legal procedures that are just, fair, and impartial in the long run. In that perpetual process by which Americans judge themselves either superior to or more fortunate than other political societies past or present, the themes most often encountered stress the wide availability of civil liberties (the freedoms of speech, association, religion, and so on), the equality of all persons before the law irrespective of rank or material situation, and the availability of judicial remedies to abuses in the administration of justice. These qualities, particularly as they are embodied in the actions of the nation's courts, set the United States apart as a unique and superior system in most people's minds, worthy of defense against competing systems, no matter what its catalogue of faults and abuses in other areas. There seems to exist an uncritical, even reverential regard for the legal order among the population, serving as one of the strongest props of the American system in an era when respect for other political institutions is apparently on the wane. The mystery and symbolism that surround the law make it appear above faction or interest, the embodiment of the will and ideals of the community. Indeed, the law and those institutions attached to it are granted dignity and respect attached to no other governmental institution.
Courtrooms are built to resemble temples; they tend to be dark, richly paneled, and high ceilinged - violating most precepts of the functional design that pervades so many other public structures. The courtroom is built so that attention is focused on the judge who sits on a pedestal above the other participants. No visitor's gallery rises above him; those who work in the courtroom are not allowed to sit or stand at his level; everyone else operates below him. He is the only official in the courtroom who wears a special costume - a robe. Everyone must rise when he enters or leaves the courtroom. He is addressed as "Your Honor" even though individual attorneys may despise him as a person. Attorneys are considered officers of the court and subject to his discipline; ordinary citizens who come to court for redress of grievances are labeled "petitioners," or if they stand accused of a crime or civil offense, "defendants." Thus architecture, dress, behavior, and language reinforce respect for the law and for the courts.1
The Law and Social Classes
Most people look at the structure and practice of the law as somehow mystical, holy, and transcendent, as the glue distilled from generations of human history, holding civilized society together and freeing it from the terrors of both arbitrary tyranny and fearful anarchy. All too often forgotten is that the law is a human construct-fashioned out of the perceive needs, interests, and actions of particular groups of individuals. Almost invariably, these groups are the very same ones that dominate society in most of its other aspects. The body of law reflects such domination of the social order, and becomes nothing more or less than the codification of the characteristics power relationships that prevail in any particular society. The law is an instrument for placing the power of government behind the set of rules and practices that govern everyday social relations.
In all historic societies, the social relations to which law and government give substance are unequal class relations. In feudal society, for instance, lord and serf faced each other as unequal persons, and over time worked out habitual and customary ways of relating to each other economically, socially, politically, and religiously. In time, these relationships came to be codified in laws specifying the relationships, and spelling out the rights, duties, and obligations of each of the parties. In capitalist society, the law comes to embody within its neutral terminology the domination of the most powerful economic classes.
There should be no mystery about all of this. Law in the modern era is primarily the product of the actions of government institutions (legislatures, executives, courts), all of which are largely under the control of the dominant capitalist2 class and solicitous of its interests. Nor is this view a particularly radical one, for it has long been recognized by theorists friendly to market society. Adam Smith once pointed out that "till there be property there can be no government, the very end of which is to secure wealth, and to defend the rich from the poor." Or as Jeremy Bentham expressed it many years later, "Property and law are born together and must die together. Before the laws there was no property; take away the laws, all property ceases."
Law is thus one of the means by which those groups who predominate in society, the economy, and government come to legitimate and solidify their position, and make it seem right and proper to the remainder of the population. One can see this manifested in many places within the Anglo-Saxon legal tradition. In that tradition, property holds an almost sacred place, with many legal protections surrounding its accumulation and use.3 Roadblocks are provided against both private and public threats to its autonomy. Closely connected to the privileged position of property in the Anglo-Saxon legal tradition is the sanctity and inviolateness of contract, and of the natural liberty to pursue economic self-interest. The invocation of "the general welfare" against this array of legal protections for customary market institutions has rarely been successful in the United States, and has been so only under unusual sets of circumstances.
THE CONSTITUTION AND PROPERTY
"In the beginning was the Constitution; and the Constitution was with the Founding Fathers; and the Constitution was the Founding Fathers." This, without much exaggeration . . . describes the relationship between the American attitudes toward history and toward the Constitution.4
Probably no single institution of American life is as venerated as the Constitution, the founding document of the American republic. Indeed, we have been virtual "Constitution-worshipers" throughout our entire history as a nation, seeing in the Constitution not only the firm design for our political life and our universally admired government institutions, but also for the legal structure that guarantees a life of equality and liberty for all Americans. The Supreme Court once affirmed this belief in the following grandiloquent terms:
The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times and under all circumstances (Ex Parte Milligan, 1866).
It has never been fashionable to criticize the document in either professional or lay circles. Tampering with it has been almost unheard of during the entire course of our history.5 Spokespersons for every conceivable political position invoke its name. To denounce one's opponents as acting contrary to the letter or the spirit of the Constitution, or to interpret their proposals as unconstitutional, has been a tempting tactic for adversaries of every persuasion.
Nevertheless, the Constitution must be seen in another light if we are to make sense of it as an institution, and to understand it as a central element in the context of capitalism's emergence into its modern corporate form. It is, in fact, a key element in the protection and nurturance of property and the social class system of capitalism. Despite its occasional use for the protection of racial minorities, political dissidents, the weak, and the poor, the Constitution is ultimately an instrument of class inequality. This interpretation is borne out by the language of the Constitution, the substance of its provisions, and its historical usage as defined by the courts and other government bodies. Much of the remainder of this chapter takes up the details of this story.
The Movement for a Constitutional Convention
People of wealth and property, fearful of the democratizing tendencies unleashed during the American Revolution, initiated the movement to revise the Articles of Confederation and to substitute a document that emphasized a strong, property-respecting, centralized government. To be sure, the Articles of Confederation were deeply flawed as the basis for the formal organization of a new nation-state. Under their terms, the central government was devoid of the power to levy taxes, to regulate economic relations among the states, or to raise an army. They made no provision for any executive authority to carry out the few mandates passed by Congress, depending instead on the voluntary cooperation of the states. Furthermore, people of wealth and property believed, to their consternation, that state governments directly responsive to the popular will might eventually turn against economic privilege and demand greater equalization.
Their worst fears were confirmed by the activities of the government of Rhode Island, which, being favorable to the interests of debtors, began to print cheap paper money for the payment of debts. Creditors were not happy with this turn of events. The ratification of the constitution of Pennsylvania, one with leveling tendencies so strong that it has been characterized by historian Samuel Eliot Morison as "the nearest thing to a dictatorship of the proletariat that we have had in North America,"6 also provoked great alarm among property holders. The triumph of this extremely democratic constitution represented the annihilation of the political power of the old established families, merchants, and landholders of the Philadelphia area, and the rise to political power of the debt-ridden western agrarians. The future Federalist Benjamin Rush felt that the new constitution was "too much upon the democratic order."7 The spread of some of the democratic devices of this constitution to other state constitutions further worried the privileged.
Even more dramatic was the fear that struck the wealthy upon the outbreak of populist-style rebellions, particularly Shays's Rebellion. This outbreak was a response by small farmers of western Massachusetts who acted after years of peaceful protest and petition against the heavy taxes imposed by eastern merchants and financial interests. These were designed to pay off the state debt (the notes for which were held by the wealthy). The rebellion struck fear into the hearts of people of property throughout the colonies.
It was Shays's Rebellion, that militant outbreak of populism that set all Western Massachusetts in uproar, and spread to the very outskirts of Boston, which crystallized the antidemocratic sentiment, and aroused the commercial group to decisive action. With its armed attack upon lawyers and courts, its intimidation of legislators, its appeal for the repudiation of debts, it provided the object lesson in democratic anarchy which the friends of law and order greatly needed. The revolt was put down, but the fear of democracy remained and called aloud for stronger government.8
Shays's Rebellion and others like it greatly worried the upper reaches of society. Reflecting on these events, John Jay, another man of property and of considerable political influence, wrote of his uneasiness to George Washington: "Our affairs seem to lead to some crisis, some revolution - something I cannot foresee or conjecture. I am uneasy and apprehensive; more so than during the war." Jay spoke for considerable numbers of his class, because the spread of the news of Shays's Rebellion had the effect of solidifying men of property in all of the colonies in their fear of democratization. Out of this fear arose a desire for a strong national government, complete with a standing army capable of controlling the excesses of the states and random mobs. It is within this context, within this framework of discontent and fear among the well-to-do, that the movement for revision of the Articles swept forward.
The Constitutional Convention
It is clear that the move toward revision and then replacement of the Articles of Confederation was on behalf of those men of property who opposed the further democratization of American society. Let us look at the Constitutional Convention itself - in particular, the composition and views of its membership - and demonstrate that it represented an attempt by the well-to-do to dam the tides of participation unleashed by the widespread dissemination of democratic ideas. A great deal has been written about the Constitutional Convention, especially in response to Charles Beard's Economic Interpretation of the Constitution,9 which first and most emphatically proposed the class nature of the proceedings. Despite numerous counterattacks by established historians, the weight of evidence still lies with the essence of Beard's arguments (though not necessarily the particulars). The most telling bit of evidence concerning the class nature of the convention is that the participants themselves saw it in this light.
While the substance of the convention debate revolved around the relative powers of state and national governments, the essence of the debate actually lay elsewhere for the participants. The antifederalists (those opposed to the new Constitution) favored only minor changes in the Articles of Confederation, for they saw the states as increasingly democratized and amenable to debtor and small farmer interests. They correctly perceived, and the proponents of the Constitution admitted, that the move to enhance national power was designed to protect the interests of the property owning class. Thus the state-national, and the Articles-Constitution debates reflected class factors. One of the landed participants put the case clearly: "The more we abridge the states of their sovereignty, . . . the more safety, liberty and prosperity will be enjoyed by each of the states." Such a national government "could then be freed from popular control, for were all power held by the people, disorder and tyranny must ensue."
While contemporary historians continue to debate the ideological and class factors dominant among the designers of the Constitution, to the participants themselves there was no question why they had gathered.10 They had done so to halt what they considered to be the excesses of democracy, and to reestablish a stable climate for business activity and elite governance. One of the participants, a clergyman named Jeremy Belknap, put the issue for his fellows: "Let it stand as a principle that government originates from the people; but let the people be taught . . . that they are not able to govern themselves." The business of the Constitution became that of working out the machinery embodying Belknap's observation.
There is no doubt that most of the participants at the Convention shared Belknap's sentiments. The eminent historian Richard Hofstadter observes that the main theme of the convention was the profound distrust of the common person, and logically, of democratic rule.11 Historian Vernon Parrington observes that of all the philosophers discussed during the debates, only a handful were democrats. The majority were either aristocratic republicans (who favored a republic ruled by aristocratic elements) or constitutional monarchists.
Historians also agree on the other major themes of the debates, in particular the need for a national government with sufficient strength to regulate commerce, halt currency inflation, and check the excesses of rebellion and anarchy. All of these desires put them in conflict with small property-owning farmers (who, it ought to be stressed, comprised the majority of the free population), who enjoyed their greatest influence at the state level. As Parrington suggests, the need for a strong national state was the basic underlying assumption, along with antidemocratic sentiments, of the Constitutional Convention.
From Philosophy to Constitutional Provisions
The logical consequence of these antidemocratic sentiments and of the desire for a strong national state was a search for methods to check majorities and protect the interests of minority property holders. As John Jay so bluntly put it, "The people who own the country ought to govern it. " While it is the fashion today to interpret minority protection in the Constitution as a means to aid helpless minorities, to the Founders the minorities to be protected were clearly the propertied and the wealthy. James Madison, rightly called the father of the Constitution, saw the issues in these terms in The Federalist:
In all civilized countries the people fall into different classes having a real or supposed difference of interests. There will be creditors and debtors, farmers, merchants and manufacturers. There will be particularly the distinction of rich and poor.
Given this division, he suggested that the role of government was to check the majority
and to protect against "leveling" tendencies that might lead to an
"agrarian law." "Wherever the real power in a government lies, there is the
danger of oppression. In our government the real power lies in the majority of the
community." As Richard Hofstadter has argued, the goal of the Founders was not to
extend liberty to slaves and indentured servants, or to protect the civil liberties of the
common person. To the framers of the Constitution, liberty was linked to property,
not to democracv.12
The Convention was a fraternity of types of absentee ownership. All property should be permitted to have its proportionate voice in government. Individual property interests might have to be sacrificed at times, but only for the community of propertied interests. Freedom for property would result in liberty for men - perhaps not for all men, but at least for all worthy men. . . . To protect property is only to protect men in the exercise of their natural faculties. Among the many liberties, therefore, freedom to hold and dispose property is paramount. Democracy, unchecked rule by the masses, is sure to bring arbitrary redistribution of property, destroying the very essence of democracy.13
THE STRUCTURE OF THE CONSTITUTION
Given a state of affairs where common people were despised, democracy was feared, and property felt itself under attack in the various states, the convention formulated a constitutional structure which, while providing some safeguards for dissenters and various minority groups, formed a stable legal and governmental base for the development of American capitalism. Let us review some of the major features of that document.
The Creation of a Strong Central Government. The convention was charged by Congress
with the task of amending the Articles of Confederation to solve some of their recurrent
problems; but it reached the momentous decision, instead, to substitute an entirely new
document establishing a more powerful national government. Given its legal charge from
Congress, the national power articulated in the document is truly impressive, even
audacious in the scope of its claims.14
We the People of the United States in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, Promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
FROM ARTICLE VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Safeguards for a Capitalist Market Economy. Above all else the purpose of the convention was to provide a framework for the acquisition, use, and transfer of property, free from the fears of both populist-style intrusions and an unreliable financial and economic environment. A number of provisions speak directly to these needs, some of which provide for domestic order, some of which provide for a stable currency and business context.
ARTICLE 1, SECTION 8:
The Congress shall have power . . . to regulate Commerce with foreign nations, and among the several states and with the Indian tribes; To establish . . . uniform laws on the subject of bankruptcies throughout the United States; To raise and support armies . . . To coin money . . . To provide for organizing, arming, and disciplining the militia.
ARTICLE IV, SECTION 1:
Full faith and credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other State...
The latter provision represents not only a powerful statement of the unification of the states into a single nation, but also a defense of the notion of the inviolability of contract, one of the basic building blocks of a national market economy. The Constitution also provides numerous defenses of property against tampering by any level of government. Note, in particular (though it is hidden in rather elaborate language), the protection of property in slaves.
ARTICLE IV, SECTION 2:
No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.15
Safeguards Against Majority Rule. It has often been pointed out that the genius of the American Constitution rests in its elaborate provisions for the separation of powers and for checks and balances among government institutions. Any judgment as to its genius depends, of course, on an evaluation of the uses to which government has been put. Nevertheless, recall that the overriding concern at the convention was to ensure that the passions of the population not be permitted to overwhelm the government and move it in possibly dangerous directions. Believing that tyranny results when a majority imposes its will on a minority (property holders), the Founders formulated a series of provisions to ensure that no such majority could easily capture the policy-making machinery of the various branches of government. Such provisions pervade the Constitution and are too numerous to be listed here. Most important, perhaps, the national government is split into three distinct branches - the judiciary, the executive, and the legislative - each with a distinctly different method for filling its offices, and each with some check on the activity of the others.16 The president may veto congressional legislation, for instance; while Congress must appropriate funds for presidential activities, approve many executive appointments, and formally approve treaties (in the Senate). Congress depends on the president to carry out its legislative mandates. The judiciary may judge the legality of executive and of its formal legislative activities, yet is itself dependent upon the particulars organization, upon funding from Congress, and upon the president to enforce its decisions. With such an elaborate intermixing yet separation of the branches, no single branch, it was believed, could act tyrannically. Separated as they were, no popular majority could capture them simultaneously. And since the branches were interdependent, no branch could unilaterally impose its will on the nation.
The Constitution is filled-with additional provisions designed to check the unbridled intrusions of a government moved by passionate majority sentiment. The most popular branch, Congress, is itself divided into two houses in order to check hasty and ill-considered legislation, or, to put another face on the issue, to considerably slow down the legislative process. The Senate elects but one-third of its membership at each congressional election, further protecting Congress from tides of popular sentiment.17 Note also the very difficult process by which the Constitution itself is amended;18 strong democrats such as Thomas Paine, Thomas Jefferson, and Samuel Adams believed that the fundamental law ought to be easily amended at any time by a majority of citizens. The document, moreover, arranged for the election of the president not through a direct popular vote but through Intermediaries (electors), whom the Founders hoped would be the "social betters" in the community.19
Other Constitutional Features. The Philadelphia conferees formulated a constitutional document whose aim was to create a framework for a strong national government; for a stable, nonthreatening environment protective of property in which a market economy might operate; and finally, for a national government insulated against popular majorities. To a great extent, the Founders succeeded in their efforts, although several of their designs did not work out as intended. Despite the electoral system, for instance, the presidency has emerged as a genuinely popular institution. Through the amendment process, the provision for the indirect election of senators was altered, as was the protection of property in slaves. What is most impressive about the Constitution, in fact, as many scholars and commentators have pointed out, is its historic flexibility its ability to serve as the foundation of American governmental and political life during radically different times. In the main, its very simplicity and brevity have made it amenable to reinterpretation as the times have demanded it.
The creation of a strong national government, protective of property and insulated against minorities, is the heart of the constitutional framework, but does not exhaust all of its features. Two others are particularly worthy of attention: federalism and the Bill of Rights. The Constitution represented a compromise solution at the Convention between those who advocated a centralized government (some even proposed a constitutional monarchy), and those who feared any diminution of power in the state governments. The Constitution effected this compromise by reserving some powers exclusively to the states (such as the specification of electoral qualifications, the conduct of elections, the ratification of the Constitution and its amendment); by reserving certain powers exclusively to the national government (such as the provision of a currency, the regulation of commerce, and the conduct of foreign relations); and by lodging all residual powers in the states (Amendment X: "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"). While the relative weight of power has shifted to the national government during our history, particularly during the twentieth century, the United States remains a system in which the powers and responsibilities of government are divided and shared between government levels.
It is also important to mention the Bill of Rights, that section of the Constitution considered its very heart by most Americans, the foundation stone of American liberties. Strangely enough, the Bill of Rights was not a part of the original document as written in Philadelphia at the Convention and transmitted to the states for ratification. Indeed, it was not until the ratification of the Constitution came to be in doubt that its supporters promised to introduce a set of amendments specifying the rights and liberties of Americans at the first Congress, a promise that was kept with the passage of Amendments I through X (ratified December 15, 1791). Much more will be said about the practice and protection of these rights and liberties in a later section.
Ratifying the Constitution
An important question remains: "If the Founders were engaged in an antidemocratic counter-revolution, how did it happen that the Constitution was approved by eleven states within the following year?"20 In the most extensive analysis yet made of the fight over the ratification, it has been convincingly demonstrated that sentiment in the majority of states was against ratification of the Constitution.21 Jackson Turner Main shows that seven states were certainly against ratification, three were strongly for it, and three were uncertain. The obvious question is how the Constitution came to be ratified. Main shows that ratification was primarily the product of the superior economic position of the Federalists. The control of wealth allowed them to control most newspapers and thus to play down anti-Federalist arguments, feature pro-Constitution writers, and direct the news. False reports were constantly given, for instance, on Federalist strength, the inevitability of Federalist victory, and the support for the Constitution by prominent people (such as Patrick Henry, who was, in fact, a passionate opponent). Wealth also enabled the Federalists to create superior organization, to locate and mobilize their supporters, and to discourage opponents. In almost every state, the anti-Federalists gathered too little, too late. Superior wealth also allowed proponents of the Constitution in many cases to resort to economic pressure and intimidation against their opponents. Main documents innumerable cases of advertiser pressure against anti-Federalist newspapers, the bribing of prominent opponents in the states, and the calling in of notes of anti-Federalist debtors. Finally, in an interesting preview of contemporary politics, voting turnout was extremely low, enabling economically powerful and well-organized groups to wield influence far beyond their numbers.
It is important to note that these observations are not merely the charges of disappointed losers in the struggle, but were affirmed by many Federalists who found the proceedings a bit distasteful, though necessary. A prominent Massachusetts supporter of the Constitution, George Richards Minot, observed that the Federalists were obliged "to pack a Convention whose sense would be different from that of the people." Indeed Minot titled a long list of Federalist trickery and unethical tactics "bad measures in a good cause."
THE SUPREME COURT
AND THE CONSTITUTION
There is no denying that the Constitution has played an important role in the provision of liberties for the American people. Nevertheless, the heart of the Constitution provided a protective environment for the development of capitalism, which, as we shall see in chapters 15 and 16, has serious adverse consequences for the health, safety, and freedom of the American people. The Supreme Court, as the primary interpreter of the Constitution, has further solidified it over the years as an instrument for the use and protection of the most powerful economic forces in the nation. Some of the most important and lasting contributions to this tradition were made by the Marshall Court in the first three decades of the nineteenth century, which, through a series of landmark decisions, advanced the intentions of the writers of the Constitution and served to shape all later constitutional history.
The Marshall Court. Chief Justice John Marshall was a follower of the doctrines of Alexander Hamilton, who had proposed that the future greatness of the United States must be built on an alliance of a powerful central government and big business. Marshall's aim was to free business from the restraints of state and local governments and to enhance the federal role in interstate commerce, to help construct an open, vital, national economy. In McCulloch v. Maryland (1819) the Court affirmed the supremacy of the federal government over state governments by forbidding the state of Maryland to tax a federally chartered United States bank, claiming that "the power to tax is the power to destroy." Of even more interest in that case, the Court decided that Congress had acted properly in creating an institution not mentioned in the body of the Constitution, citing Congress's power "to make all laws necessary and proper for carrying into execution" its other duties and powers (Article 1, Section 8). In Gibbons v. Ogden (1824), the Court further enhanced the powers of the federal government by affirming and clarifying its domination in the regulation of commerce between the states. In Trustees of Dartmouth College v. Woodward (1819), the Marshall Court held that a corporation was equivalent to a person in the eyes of the law, and was a holder of rights against society and thus protected by the Constitution. For any government to impose social obligations upon the operations of a corporation, to regulate it in the public interest, necessarily intrudes upon its rights as a person who had entered into a valid contract. While Dartmouth College was not a business enterprise, this decision opened the gates to untrammeled and unrestricted free enterprise under corporate auspices later in the nineteenth century. Perhaps the most famous case of the Marshall Court was Marbury v. Madison (1803), in which the principle was first articulated that the Supreme Court may declare a law passed by Congress or by the states unconstitutional and thus void. In the process, the Court established in law the federalist principle of judicial review, a principle seen at the time as a bastion against the passions of popularly elected legislators. Through this series of landmark cases, the Marshall Court built the legal structure for the supremacy of the national government, the protection of property rights, and the free operation of a capitalist economy.
The Supreme Court and Emerging Capitalism. In the second half of the nineteenth century, the Supreme Court became the virtual handmaiden of the newly emerging corporations. It rendered a series of decisions that reaffirmed their status as persons and holders of rights to be left free from interference in their operations. Moreover, the Court interpreted the due process clause ("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 per son of life, liberty, or property, without due process of law. . . .") of the Fourteenth Amendment, which was originally placed in the Constitution to protect newly enfranchised black citizens in the wake of the Civil War, as a prohibition against state regulation of business corporations and efforts by working people to form unions. The Court also interpreted the Sherman AntiTrust Act, originally directed toward the problem of monopoly, as a law prohibiting the unionization of workers, for unionization would interfere with the freedom of contract between two persons--the corporation and the worker. Finally, in Pollock v. Farmer's Loan and Trust Co. (1895), the Court invalidated a law in which Congress imposed a tax upon individual incomes. The identification of the Court with national economic interests was so close, in fact, that one New York bank president was moved to toast the court to an audience of businessmen in 1895 in the following euphoric terms: "I give you, gentlemen, the Supreme Court of the United States - guardian of the dollar, defender of private property, enemy of spoliation, sheer anchor of the Republic!"22
The Court and the Depression Watershed. For most of its history, from the era of John Marshall through the 1920s, the Court substantially agreed with the interests and needs of the leading national economic institutions. In the last decades of this era, the Court was particularly active in protecting the corporation from the dual threats of regulation by state governments and a unionized work force. This happy relationship was torn asunder by the events that surrounded the collapse of American capitalism in 1929. The crisis of capitalism was reflected in a crisis for the Supreme Court itself. In response to the Great Depression, the most advanced sectors of the business community and national political leadership moved in directions sharply at odds with prevailing notions on the Court. While members of the Court remained tied to fairly strict free-enterprise notions, corporate and political leaders were becoming sensitive to the necessity of constructing a form of cooperative, corporate capitalism in which the national government would be actively involved in the protection, coordination, and stabilization of the entire economy. When the Roosevelt administration moved actively to translate its interpretation into legislation, the Court responded by rejecting many of the landmark programs of the New Deal, the most important ones being minimum wage legislation, the National Industrial Recovery Act, and the Agricultural Adjustment Act. Despite the loud public debate about the "nine old men" of the Supreme Court, the constitutional crisis was short-lived. The Court has never for long been out of step with other national elites. It is impossible to determine the exact causes, but it is striking that without any change in personnel, the Court began to find New Deal legislation perfectly constitutional after 1937, including its new conceptions of governmental activism. Whether this transformation was influenced most centrally by the power of public opinion as reflected in FDR's smashing 1936 electoral victory, by the fear elicited among the justices by Roosevelt's ill-fated plan to "pack" the Court with friendly jurists (he was fond of saying that he "lost the battle but won the war"), or by pressures from corporate and financial leaders, is largely immaterial. It remains an inescapable fact that after 1937, the Court returned to the elite fold. From that date through the present day, the Court has allowed the government a virtual free hand in regulating and coordinating corporate capitalism.
The Court and Antiproperty Dissidents. The Court has made another important contribution in allying the Constitution with capitalist domination. Despite what seems a clear and unambiguous prohibition in the Constitution against any limitation of the exercise of free speech ("Congress shall make no law . . . abridging the freedom of speech . . . "), the Court has been generally willing to allow government a wide latitude in suppressing the free expression of anticapitalist ideas. During the antiradical hysteria of the 1920s, for instance, the Court upheld the prosecution of an individual for the distribution of communist literature (Gitlow v. New York, 1925), and the expulsion of elected socialists from the New York state assembly. During a similar hysteria in the 1950s, the Court upheld the constitutionality of the Smith Act, which limited the free speech rights of the Communist Party (Dennis v. United States, 195 1). It is important to realize that these cases are not unique; they merely highlight the long history of the Court. In fact, from the passage of the Alien and Sedition Acts during the administration of John Adams, up to the present, the Supreme Court has never declared unconstitutional any act Of Congress designed to limit the speech of dissidents.23
It is true that over the course of the past two decades, now that the constitutional framework for modern corporate capitalism is firmly in place, the Supreme Court has acted to expand the rights of criminal defendants and increase the constitutional protections for racial and cultural minorities and women. Nevertheless, these important and significant advances have been confined to expanding procedural rights, guaranteeing equality before the law, and opening the opportunities for the practice of formal citizenship, but have not been directed toward establishing substantive and material equality. While dramatic advances have been made in a great many areas of American life through the actions of the Court, the institutions-of corporate capitalism the system of class inequality remained untouched and intact with the basic framework of the law acting as one of its most fundamental props.
LIBERTY AND DISSENT
The discussion of the Constitution and the role of the Supreme Court in the regulation of dissent and the expression of unpopular views leads us to consider the larger question of civil liberties and their exercise in the United States. To most Americans, what distinguishes the United States from all other societies is that it is a "free society," one in which every individual has the right and the opportunity to criticize the government, to publish and to read all manner of opinion on public issues, to associate with others of like mind for the purpose of petitioning the government (or to turn it out in an election), to practice the religion of one's choice, and so on. Our "free society" is constantly and favorably compared to what we call repressive and totalitarian societies, the Soviet Union being the customary example. Every time a political dissident is jailed or expelled from that country - the case of author Alexander Solzhenitsyn being the most prominent - editorialists around the country, from big city to rural village, write in almost rhapsodic terms about American freedom. The average American, continually exercising the right to complain, to vote, to move, to worship, and so on, sees the theory of the free society reflected in the reality of his or her life, thus strongly reaffirming the belief in America's special place in the world and in history.
This discussion will not claim that the above assertions are simple myths. Civil liberties have been practiced and defended, often quite vigorously, at many times and places in American history. Nor will it belittle the importance of civil liberties, for any decent society must be concerned with the rights and liberties of the individual. Rather, we shall see that the history of the exercise and the protection of civil liberties in the United States is a spotty one, fluctuating with changes in the political, social, and economic climate.
This is a most important point, for many political commentators acknowledge the many examples of government interference with and suspension of civil liberties to be discussed here. Many will even acknowledge the existence of periods of repression in American history. Nevertheless, most historians and political scientists tend to see such periods as random events, recurrent, yet aberrant and atypical. The "Red Raids" of 1919, for instance, are seen as the product of an attorney general who was an antiradical zealot. McCarthyism is seen as a lamentable but unpredictable accident, the product of a particularly venal and opportunistic senator from Wisconsin. I shall take a diametrically opposed position, one that argues that the history of civil liberties is patterned: that government allows their exercise when no threat to dominant power relations is involved, but severely limits their exercise when groups or persons seriously threaten the capitalist status quo. Repression--public-and private efforts to limit or deny the free exercise of constitutional liberties - while brought to bear only intermittently, stands ready at all times for use during periods of disorder and discontent, against persons or groups offering a fundamental challenge to the capitalist order.
The Many Forms of Repression
Efforts to prevent dissident elements from freely exercising their liberties have taken a wide variety of forms in American history, from the crudest sorts of vigilante violence to orderly processes in a court of law. The subject of repression in the United States is especially difficult to discuss because it is located in no single, identifiable place. There is no KGB or its equivalent. Repression in the United States is marked by its complex instruments and the decentralized control of these instruments, scattered as they are among various branches of federal, state, and local governments, as well as among private individuals and groups. Let us examine some of the many complex forms that repression takes in American life.
Violent Repression. Threats to the status quo have almost always, at some point, been answered by violence from its self-proclaimed or official protectors. When the labor movement was in its infant stages in the late nineteenth century, efforts to organize were almost invariably met by vigilante violence customarily organized by local businessmen. Given their radical political stance, the Industrial Workers of the World (IWW) were particularly subject to such privately organized violence, especially where they generated large followings. In Bisbee, Arizona, for instance, vigilante mobs forcibly deported striking miners and refused to allow them to return. In Butte, Montana, labor organizer Frank Little was lynched by a businessmen's group in 1918. Working people who try to unionize have also been forced to deal with the private police forces of employers (Henry Ford had a particularly tough, brutal, and justly infamous police force for his auto plants), antiunion detective and security agencies such as the Pinkertons, and occasional hired thugs. In their study of violence in American life, Hugh Graham and Ted Gurr point out:
Most labor violence in American history was not a deliberate tactic of working class organization but a result of forceful employer resistance to worker organization and demands. Companies repeatedly resorted to coercive and sometimes terroristic activities against union organizers and to violent strikebreaking tactics. The violence of employers often provided both model and impetus to counterviolence by workers, leading in many situations to an escalating spiral of violent conflict to the point of military intervention.24
Private violence, while often successful in the short run, tends to be distasteful to most Americans, and its overuse very often leads to a growth in sympathy for the victims. Much more acceptable, because it wears the mantle and the trappings of the law, is violent repression practiced by government. Military force has often been used to resolve domestic conflicts in the United States, particularly those conflicts involving labor and business. Almost with-out exception, such force has been exercised in the interests of property and of corporate management. From the massacre of striking miners and their families at Ludlow, Colorado, in 1914 by state militia, to the violent repression of the American Railroad Union by federal troops in the relatively peaceful Pullman strike of 1894, to the numerous National Guard interventions against the CIO in the 1930s, the biases in the use of military force have been unambiguous. This pattern found later expression in the use of the National Guard against urban black populations and antiwar demonstrators during the turmoil of the 1960s.25 Much more important than, the federal troops in the violent repression of, dissident and discontented groups in the United States are the police forces of the various state and local communities. The Texas Rangers, for instance, have traditionally been used as an antiunion, antistrike force in that state.
Local and state police forces were used extensively against civil rights organizers in the south. On several occasions they were directly implicated in the murder of civil rights workers. The police were also among the major weapons in the violent suppression of the Black Panther Party. Not only were members of the party subjected to continual harassment (subject to arrest for minor infractions: loitering, curfew violations, profanity, jay-walking, malicious behavior, defacing a monument, and so on), but they often faced violent police assault on their homes and meeting places. Between 1967 and 1969, police departments around the country were involved in 21 raids and gunfights with members of the party.26 The most notorious case involved Chicago Black Panther leader Fred Hampton, who was killed in his bed during a police raid in December 1969, a raid purportedly designed to search for illegal weapons. To this date, there is no evidence showing that any shots were fired at the police by Hampton or any of his people.27 Finally, there were at least 200 police "Red Squads" in American cities, tied together by the federally funded Law Enforcement Intelligence Unit, whose function seems to have been the disruption of dissident organizations through surveillance, harassment, intimidation, and even violence. The San Diego Red Squad, for instance, financed the violent antiradical activities of various right-wing groups in that city.28
Repression Through Government Harassment. The ways in which government can harass and disrupt the activities of dissident groups and organizations while remaining within the letter of the law are seemingly limited only by the ingenuity and imagination of officials. During the period of antiradical hysteria immediately following World War 1, guided and justified by a Supreme Court decision defining deportation proceedings as administrative in nature and not punitive, the government used the Immigration and Naturalization Service as an instrument for the mass purge of the leadership of the Socialist Party and of the IWW. During the early 1950s, the period of so called "McCarthyism," congressional committees ran roughshod over the liberties of many Americans, denying them their rights to free expression, privacy, and due process. Indeed, in only one case during this period (Watkins v. United States, 1957) did the Supreme Court find these "witch hunts" constitutionally intolerable.29
During the civil rights demonstrations of the 1960s, officials regularly, arbitrarily, and without due process terminated the benefits of welfare recipients exercising their First Amendment rights in peaceful demonstrations. Occupants of public housing who were similarly involved often found themselves without shelter.30 Antiwar activists, even those who had broken no law, were occasionally denied government-funded student loans. Police, as already pointed out in the case of the Panthers, exercise wide discretion out on the street, and have a variety of weapons with which to harass dissidents. Their most effective weapon was the overenforcement of minor laws as a way to prevent gatherings (freedom of association) or the dissemination of leaflets (freedom of speech), usually citing obstructions to traffic, loitering, creating a public nuisance, and so on, to support their action. In the interests of public order, police officials regularly deny parade permits to dissident groups, though "patriotic," and civic groups do not seem to have similar problems. Agencies ranging from the local police to the Central Intelligence Agency regularly and as a matter of policy infiltrate, disrupt, and undertake wide-scale surveillance of dissident organizations, practices that most certainly destabilize legal political organizations, and undermine public support for them because of their "chilling effects."
The list could be extended, and probably most of you have seen evidence of such official harassment in your own communities in the face of dissent. It is all too painfully obvious that the liberties spelled out in the First Amendment have a difficult time away from the rarefied chambers of the Supreme Court, even in those few instances when the Court has acted to support the right of dissent.
Private Sector Harassment. Violent repression, whether by public officials or by private individuals, is a blunt instrument, very often creating sympathy for the victims, and providing those same victims with a concrete and readily identifiable target. Official harassment also tends, in the long run, to smack of injustice. Far more effective are those tools of repression in American life that are decentralized and obscure, tools that are seemingly accidental, random, and impersonal, leaving no group or institution accountable or responsible. One of the most effective instruments relates to the precarious employment possibilities of social critics. During the early struggles of working people to organize into unions, labor leaders were regularly blacklisted named on lists compiled by and for employers so that they might better guard against accidentally hiring "troublemakers." During the McCarthy era, many actors, directors, and writers were blacklisted from employment in the film industry. During periods as disparate as the Red Scare of 1919, the McCarthy period of the 1950s, and the antiwar movement of the 1960s, many people who expressed unpopular opinions were discharged from their teaching positions in elementary schools, high schools, colleges, and universities. Bar associations during the 1950s routinely disbarred attorneys daring to defend politically unpopular people and organizations.
While similar cases of grassroots denial of liberties are literally too numerous to discuss, a particularly dramatic case involves Paul Robeson. Though most Americans know him only as the slave who sang "Ole Man River" in the film musical Showboat, Robeson was truly one of the most remarkable Americans of the twentieth century. The son of a runaway slave, Robeson was only the third black man to attend Rutgers University; while there, he earned a Phi Beta Kappa key and played varsity football, baseball, basketball, and track. In football he not only gained All-American honors, but was described by the legendary football coach Walter Camp as "the greatest defensive end that ever trod the gridiron." After receiving a law degree from Columbia University, he turned his prodigious talents toward the theater, where his rise to prominence was almost unprecedented. He became world-renowned and honored as both an actor and a concert singer.
As a sensitive black man, however, Robeson spoke out forcefully in the 1930s and 1940s for the rights of black people, as well as in support of worker efforts to organize themselves into unions. While never a participant in any political protest, disruption, or act of violence, he often spoke out against capitalism and once expressed -[his] belief in the principles of scientific Socialism, his deep conviction that for all mankind a Socialist society represents an advance to a higher stage of life."31
While such sentiments were allowable during World War 11 when the Soviet Union was a military ally, Robeson's continued commitment to such ideas in the late 1940s and early 1950s at the he height of the Cold War got him in deep trouble. Particularly damaging to him was a statement he made in Paris in 1949: "It is unthinkable that American Negroes will go to war on behalf of those who have oppressed us for generations against a country [the Soviet Union) which in one generation has raised our people to the full dignity of mankind." After that statement, his concerts were physically disrupted by veterans and right-wing groups; he was denied the use of concert halls in which to perform; and he was hardly ever again asked to appear on the concert stage, in the theater, or In films. It is reported that his income fell from $100,000 in 1947 to only $6,000 in 1952. Though world-renowned and honored, and neither charged with nor convicted of any crime, Robeson was never again able to practice his craft in the United States, a punishment visited upon him merely for exercising his rights of free speech. This punishment, it must be added, was a product not of a government bent on retribution, but of scores of private decisions made by private citizens. The effects on Robeson, however, were very much the same. This man, whom cultural historian Clayton Riley has characterized as "one of the nation's greatest men, an individual whose time on earth has been spent in the pursuit of justice for all human beings and toward the enlightenment of men and women the world over," died a broken, bitter recluse in his seventy-seventh year.
Repression Through the Legal System. Given the traditional reverence for the law in American society, the most effective device for quiet repression of dissident organizations is to define their activities as criminal and to transfer their conflict with the dominant powers from the street and the ballot box into the courtroom. Such a transformation is a powerful tool of official repression, for to define certain activities as criminal, rather than political, accomplishes several things favorable to the status quo.32 First, "criminalizing:" dissent makes it possible to ignore the issues raised by that dissent, to redefine the problem as one that involves the determination of guilt or innocence. In such a setting, the issues are not likely to receive a hearing. Second, "criminalizing" dissent makes it more difficult for dissenters to gain allies for their cause in the larger community. Once persons or groups are officially stigmatized as "criminal," they tend to lose sympathizers. Finally, unless one is armed with a strong character and a powerful supporting ideology, "criminalization" discourages and demoralizes dissident individuals themselves once they find that they are treated as criminals by the police, the courts, and prison personnel. The criminal process isolates people and treats them as individual wrongdoers, cutting them off from the support of their compatriots. As Isaac Balbus puts it:
Because formal rationality [the law) tends to depoliticize the consciousness of the participants, delegitimate their claims and grievances, and militate against alliances between participants and other nonelites or elite moderates, it is likely effectively to minimize revolutionary potential and maximize long-run legitimacy. . . . As such . . . that form of repression . . . most consistent with the long-run legitimacy of the state is repression by formal rationality.33
Examples of repression through formal legal processes abound. As a method for combating the influence of the IWW, many states and communities in the early part of the century passed criminal syndicalist laws specifically defining IWW activities as criminal and thus transferring their persecution to the courts. At the federal level, the IWW was brought before the courts and its leaders jailed for "conspiracy" against industrial production and the draft because of their militantly outspoken stance against participation in World War 1. Socialist leader Eugene Debs was imprisoned under the same conspiracy laws. During the black uprisings of the mid- to late 1960s, "rioters" were treated as common criminals, as persons rioting mainly for "fun and profit,"34 and a political protest was thereby transformed into a legal question to be dealt with formally and dispassionately. The Cold War era saw a number of statutes passed by Congress, principally the Smith Act, designed to deny political and civil rights to supporters of the Communist Party by making it a crime to advocate or teach the overthrow of the government by force. The Supreme Court upheld the conviction of eleven leaders of the Communist Party in Dennis v. United States (195 1) when the petitioners failed to comply with the stringent technical terms of the Smith Act. The Supreme Court has always been a participant, in fact, in the criminalization of radical dissent. In Pierce v. United States (1920) it upheld the conviction of a man for publishing a Socialist antiwar pamphlet. In Gitlow v. New York (1925) it upheld the conviction of Gitlow for distributing Communist literature. While the Court has usually reversed these opinions in later cases, what is most significant is their willingness to cooperate with other officials in the repression of dissent during "troublesome" times.
We might also take note of political trials, trials which, while ostensibly concerned with the transgression of some statute, are in fact concerned with the control of political dissent. Political trials became especially prominent during the anti-Vietnam War protests and the rise of black militancy. The list is long and familiar - the "Chicago Seven," the "Panther 21," the trial of Dr. Benjamin Spock, the trial of the Berrigans, the Gainesv' lie trial of the leaders of the Vietnam Veterans Against the War, the various trials of Huey P. Newton and Bobby Seale of the Black Panther Party, and so on. It is largely immaterial that in most of these cases, juries found the defendants innocent of all charges, for the court process, given its length and complexity, dissipated the energies and treasuries of the affected dissident organizations, and transferred the attention of their members and their sympathizers from political organizing to the criminal courts. The speed with which juries have acquitted suggests the flimsiness of the prosecution cases, and raises the possibility that the political trial is designed by officials less for conviction than for harassment and disruption.
Civil Liberties and Capitalism
The picture painted above does not conform to our self-image as a free society, one in which people hold liberties that are inviolate, free from interference either by government or by other persons. How is it that such a state of affairs can exist in a society that professes other ideals, and in a culture dominated by liberalism, with its emphasis on individual freedom?35
The answer to the first part of the question causes no insurmountable problem, for it might be argued that no political system, whatever its expressed ideals, will freely allow the organization and political activity of those groups whose stated aim is a change in the regime itself and the underlying system of class relations. The western "democracies" do not differ in this regard from other systems, though repression of dissent is hidden behind the rhetoric of freedom and complexities of the legal code.
As to the second part of the question, you must recall the discussion of liberalism in chapter 3. It is an inaccurate reading of the liberal tradition to see it as principally committed to absolute individual freedom. From the very beginning, the focus of the liberal tradition has been upon the rights of property--the freedom of individuals to buy, sell, and accumulate property with out interference. To Locke, the protection of property is the very reason people come together in the first place to form commonwealths, and protecting property becomes the primary function of government. The right to rebel which is surely the ultimate expression of individual freedom, is limited solely to cases in which property owners are oppressed, in which some government interferes with the inviolable rights of property. In Locke's view, there is no right of rebellion against property! Indeed, facing such a threat, governments are justified in suspending all rights and vigorously suppressing it. In Locke's words, faced with such a threat to property, ". . . all former ties are cancelled, and all other rights cease, and every one has a right to defend himself and to resist the Aggressor."
At the very core of the liberal tradition is a basic contradiction: a commitment to freedom and liberty combined with a powerful justification of the forcible suppression of threats to property, of threats to capitalist society itself. Once we are aware of this contradiction, it should no longer surprise us that liberties are available to American citizens only as long as and to the extent that their practice represents no fundamental challenge to the overall system of power and privilege.
The Continuing Importance of Civil Liberties. This discussion must include an important qualification. While spokespersons for property were the intellectual fountainhead for the ideas of individual freedom, and while they intended to confine liberty mainly to the propertied class, the ideas proved too powerful and appealing to remain there for very long. The freedoms of expression, movement, and assembly so necessary to the practitioners of early market capitalism were eventually seized upon by those groups in society for whom the freedoms were never intended, and the freedoms thereby took on a more democratic cast.36 As a result, there exists an important state of tension over civil liberties in the United States. That tension is the result of the contradiction between the property and class commitments of the liberal tradition, and the general belief among the population that liberties extend beyond large property holders to all citizens. Such a contradiction heightens the problem of repression for the government, because it must repel threats or potential threats to the social order without unduly transgressing what the population considers the legitimate exercise of liberties. To do so openly and persistently would very likely undermine the legitimacy of the government itself. Civil liberties thus have the unique and peculiar quality of being at one and the same time a prop of the capitalist order and a potential tool for expanding the freedom of all citizens. Liberal freedoms are at one and the same time a tool of social control and a potential tool of liberation. How they are used in practice depends heavily on the degree of popular support for the libertarian interpretation of the tradition and on public hostility to government transgressions of agreed-upon limits. Civil liberties thus become ideals well worth fighting for both because of their intrinsic qualities and because they are potential barriers to the full exercise of repression by government.37
We have found that both the letter and the practice of the law in the United States are strongly biased in favor of the interests of powerful economic institutions and individuals. Behind the Fourth of July mystique, the Law Day pronouncements, and the general veneration of the American legal system stands the inescapable reality of unequal power. While none of this implies that the legal order never offers protection and sustenance to the weak, or that it may not be better than most other legal orders in the world today, the foregoing discussion may introduce a dose of realism into an area of national life all too often obscured by myopic and wishful thinking.
1. From Herbert Jacob, justice in America, 2nd ed. (Boston: Little, Brown, 1972), p. 14, based on the observations of Thurmond W. Arnold, The Symbols of Government (New York: Harcourt, Brace, 1935).
2. The terms capitalist class and social class will be explored in depth in chapters 5 and 6.
3. While the general commitment to property has not wavered, what has changed is the type of property afforded the greatest protection. See Morton Horwitz, The Transformation of American Law, (Cambridge: Harvard University Press, 1977) for a brilliant exposition of the triumph of large scale over small-scale property in the law as American capitalism was transformed from laissez-faire to concentrated corporate form. Note, furthermore, that property refers to a social relation, e.g., the ability to purchase the labor power of others and to control the process of production (see chapter 5). It does not refer to articles of personal use and consumption.
4. Charles A. Miller, The Supreme Court and the Uses of History (Cambridge: Harvard University Press, 1969), p. 181.
5. Since the Bill of Rights (Amendments I through X), was adopted by the first Congress over 200 years ago, only 16 amendments have been made in the Constitution.
6. Samuel Eliot Morison, The Oxford History of the American People (New York: Oxford University Press, 1965), p. 274.
7. Unless otherwise noted, all direct quotes in this section on the Constitution are from Jackson Turner Main, The Anti-Federalists (Chapel Hill: University of North Carolina Press, 1961).
8. Vernon T. Parrington, Main Currents in American Thought, Vol. I (New York: Harcourt, Brace, 1927), p. 277.
9. Charles Beard, An Economic Interpretation of the Constitution (New York: Macmillan, 1913).
10. Significantly, many prominent proponents of democracy like Thomas Jefferson and Patrick Henry did not attend the proceedings. The latter is reported to have said in explanation, "I smelt a rat."
11. Richard Hofstadter, The American Political Tradition (New York: Knopf, 1948), p. 4.
12. Hofstadter, The American Political Tradition, p. 11.
13. Ibid., p. 11.
14. See for example Article 1, Section 10 (restrictions upon the powers of states).
15. Repealed by the 13th Amendment.
16. Consult the Constitution, a copy of which may be found in the back of this book. For the separation of powers see, in particular, Articles 1, 11, and III.
17. See Article I for the specification of congressional structure and responsibility.
18. See Article V.
19. See Article 11, Section 1.
20. Robert Dahl, Pluralist Democracy in the United States (Chicago: Rand McNally, 1967), p.32.
21. See Main, The Anti-Federalists.
22. Quoted in Ira Katznelson and Mark Kesselman, The Politics of Power (New York: Harcourt Brace jovanovich, 1975), p. 326.
23. Theodore L. Becker, American Government: Past, Present, Future (Boston: Allyn & Bacon, 1976), p. 81.
24. Hugh D. Graham and Ted R. Gurr, Violence in America (New York: Signet, 1971), p.750.
25. The single best discussion of repression in the United States in all of its forms is Alan Wolfe, The Seamy Side of Democracy (New York: David McKay, 1978). Much of the material in this section is based upon this work.
26. Ibid., p. 50.
27. The FBI was intimately involved in Hampton's murder. The Black Panther chief of security, in fact, was an FBI informer and the source of all information supplied to the Chicago police. As The New York Times reported (May 7, 1976), "Within days of the raid . . . the Chicago FBI office asked Washington headquarters for a $300 bonus for O'Neal [the informerant and [he] subsequently received the money."
28. Pacific News Service, March 10, 1976.
29. For the most complete compilation of the horrors of the McCarthy period, see David Caute, The Great Fear.- The Anti-Communist Purge Under Truman and Eisenhower (New York: Simon & Schuster, 1978).
30. Frances Fox Piven and Richard Cloward, Regulating the Poor (New York: Pantheon, 197 1).
31. All quotes in this section are from The New York Times obituary, January 24, 1976.
32. Based on Balbus, The Dialectics of Legal Repression, p. 12.
33. Ibid. p. 14.
34. The quote is a chapter title from the notorious book by Edward Banfield, The Unheavenly City (Boston: Little, Brown, 1968).
35. Wolfe, The Seamy Side of Democracy, p. 6. Much of the remaining discussion is based on Wolfe.
36. See C. B. MacPherson, The Real World of Democracy (Oxford: Clarendon Press, 1965) for this history.
37. This chapter has focused on issues related to the fundamental law: the Constitution, the interpretation of the Constitution by the Supreme Court, and the status of civil liberties in the United States. The discussion has continually emphasized that the law is not neutral, but is, rather, an instrument of and a creation of the institutions of private economic power. It is important to point out that the more mundane, everyday practice of civil and criminal law is also deeply biased in favor of large scale property and against the poor and the politically powerless. For an introduction to a vast literature on the subject see Jerold S. Auerbach, Unequal Justice (New York: Oxford University Press, 1976); Herbert Jacob, justice in America (Boston: Little, Brown, 1978); Leonard Downie, Jr.,Justice Denied (New York: Praeger, 1971); Richard Quinney, ed., Criminal Justice in America (Boston: Little, Brown, 1974); and Edwin H. Sutherland's classic White Collar Crime (New York: Dryden Press, 1949).
SUGGESTIONS FOR FURTHER READING
Ted Becker, ed. POLITICAL TRIALS. Indianapolis: Bobbs-Merrill, 1971. A collection of readings that dramatically illustrate the extent of political trials in American life.
David Caute. THE GREAT FEAR: THE ANTI-COMMUNIST PURGE UNDER TRUMAN AND EISENHOWER. New York., Simon & Schuster, 1978. The most complete (and chilling) catalogue of government suppression of civil liberties in the United States during the McCarthy period.
Edward S. Corwin. THE CONSTITUTION AND WHAT IT MEANS TODAY, 13th ed. Princeton, NJ.: Princeton University Press, 1974. A classic work that reviews the history of Supreme Court interpretation of the Constitution.
Alexander Hamilton, James Madison, and John Jay. THE FEDERALIST PAPERS, ed. by Clinton Rossiter. New York: McLean, 1788; New American Library, 1961. A brilliant and detailed defense of each of the provisions of the Constitution executed by three people actively involved in its writing.
Morton Horwitz. THE TRANSFORMATION OF AMERICAN LAw. Cambridge: Harvard University Press, 1977. A brilliant and justly honored book, which examines how changes in the early American economy led to transformations in the case law and in the legal profession.
Herbert Jacob. JUSTICE IN AMERICA, 3rd ed. Boston: Little, Brown, 1978. A highly respected review of the court system, which has rightly become a standard work in the field.
Victor Navasky. NAMING NAMES. New York: Viking Press, 1980. A penetrating analysis of the McCarthy era and the creation of a culture of informers.
Richard Quinney, ed. CRIMINAL JUSTICE IN AMERICA. Boston: Little, Brown, 1974. A collection of scholarly work that looks at the system primarily from the Marxist viewpoint.
David Wise. THE AMERICAN POLICE STATE. New York: Random House, 1976. A review of the domestic spying activities of a wide range of government agencies.
Alan Wolfe. THE SEAMY SIDE OF DEMOCRACY, 2nd ed. New York: David McKay, 1978. The most complete treatment of the subject of repression in the scholarly literature.