When Self Loathing Becomes Law: The Clarence Thomas Story

Whenever America commemorates past wars, or wages new ones, one persistent theme is how a particular war was essential to “the defense of freedom.”

Although the United States has fought some wars where its liberty interests were at risk, in recent times this “defense of freedom” mantra has become little more than a subterfuge to conceal the fact that America’s military is increasingly being deployed so that multi-national corporations can plunder the human and natural resources of weaker nations, and/or to divert the electorate’s attention away from the economic or political corruption engaged in by the plutocrats who truly control the country and its government.

In fact, despite all the pontificating about “freedom” that American politicians spew in their speeches, the sad reality is the document that many view as the cornerstone of American freedom, The Bill of Rights, is one of the most reviled documents in the nation.

There are two reasons for this. The first is because The Bill of Rights was designed to protect the fundamental rights of America’s minorities. This includes not only racial or ethnic minorities, but also those who espouse opinions, practice religions or make lifestyle choices that substantially differ from those of “mainstream” America. Since many Americans have been indoctrinated with the idea that “the majority rules,” they naturally look askance at anything that contradicts this ideology.

The second reason The Bill of Rights is reviled is because it was designed to serve as a check on the corrupting influence of political power. During the Constitutional Convention, the delegates who wanted the United States to have a strong federal government—the Federalists—sought to assuage the fears of delegates who desired a weak federal government—the Anti-Federalists—by creating three branches of government: legislative, executive and judicial. In theory each branch was supposed to serve as a “check-and-balance” on the other.

The Anti-Federalists, however, were not convinced that this “check-and-balance” system would adequately protect the governed from abuses by the government. So they demanded that The Bill of Rights—a list of freedoms considered so sacrosanct to the individual that neither the majority nor the government could take them away—be added to the new Constitution.

Throughout American history, however, the provisions of The Bill of Rights have been selectively enforced, protecting those who serve the power structure, while often being non-existent to those who criticize it.

A salient example of this can be discerned in the diametrical responses to two academics who chose to exercise their right to “freedom of speech”: Ward Churchill, a former professor at the University of Colorado, Boulder, and John Yoo, currently a law professor in California.

Shortly after the September 11th, 2001 terrorist attacks, Churchill wrote a controversial essay calling many who perished in these attacks “little Eichmanns,” a reference to Adolf Eichmann, a member of Hitler’s notorious SS. The right-wing, corporate-controlled media suddenly forgot how often their pundits compared “liberals” to Nazi figures, and rapidly made Churchill’s essay front-page news.

Seizing the opportunity to politically exploit the outrage over Churchill’s essay, Colorado’s governor at the time, Bill Owens, appeared on national television to demand that Churchill be fired, and allegedly threatened to reduce funding for the university if this wasn’t done.

Although the university claimed that Churchill could not be fired for exercising his free speech rights, a conveniently timed “investigation” into his background allegedly disclosed that he had engaged in plagiarism and other forms of academic misconduct. This, in turn, was used as the basis for his dismissal.

Contrast this with the lack of outrage directed against John Yoo. Prior to obtaining his current position, Yoo was a loyal devotee of the Bush dictatorship, working in the Justice Department’s Office of Legal Counsel. During his tenure there, he authored a controversial memorandum proclaiming that the fraudulently elected George W. Bush had the authority to suspend The Bill of Rights—in particular the rights to freedom of speech and press—and to arrest American citizens without legal due process or access to the court system.

Yet this is the same George W. Bush who, shortly after the September 11th attacks, claimed that terrorists hated America because of its freedoms. Who then is more repugnant: the man who used an offensive metaphor to analyze the actions of terrorists, or the man who wanted to capitulate to them by calling for the destruction of the very freedoms the terrorists themselves allegedly sought to destroy?

There are several reasons why The Bill of Rights is becoming irrelevant to the majority of Americans. One is because it does not apply to the private sector, and the happiness and well-being of most Americans is contingent upon this sector; thus there is a greater fear of offending one’s boss than offending the government. The doctrine of “at-will” employment permits an employer to fire an employee for any reason or for no reason at all; consequently if there is a choice between expressing an opinion and getting fired or remaining silent and staying employed, most people will be inclined to select the latter.

Another reason is the concerted effort to keep Americans ignorant of their freedoms under The Bill of Rights. This is being accomplished through policies like “random” drug testing in the public schools.

On the surface, it is difficult to argue with the promoted purpose of “random” drug testing, since most people will agree that deterring children from abusing drugs is a noble idea. But the real reasons for such testing are far more insidious.

First, “random” drug testing is a recipe for corruption, because private testing laboratories may be inclined to provide financial kickbacks to school officials in return for their business. Those who doubt that the rights of children can be abused for profit need only look to Pennsylvania, where two juvenile court judges have been accused of accepting millions of dollars in kickbacks in exchange for sending youthful offenders to privately owned detention centers.

Second, the term “random” is nothing more than a disingenuous way to circumvent the law. Schools already have the right to search students on the basis of “reasonable suspicion,” a lower standard than the traditionally used “probable cause.” Proponents of random drug testing, however, have deceptively argued that the use of the “reasonable suspicion” standard could raise allegations that students of certain races and genders were being discriminatorily singled out for testing. So, by hiding behind the word “random,” school officials can manipulate their computers to choose which students to test while pretending to have no control over the selection process.

But the primary reason for “random” drug testing in the public schools is to brainwash students into accepting governmental intrusions as a way of life. Testing of students often begins in the sixth grade and continues until they graduate from high school. Repeatedly being removed from the classroom and forced to urinate into a cup while a stranger stands outside and listens can easily transform impressionable children into subservient adults.

As a former professor, I’ve already observed this subservience in college-age students. Whenever I asked them their opinion about “random” drug testing in the public schools, most would reply, “If you’re not doing anything wrong, then you have nothing to worry about.”

While this explanation may sound reasonable to them, what it is really doing is decimating two fundamental rights: the right to privacy and the right to be presumed innocent until proven guilty.

In reality the right to privacy is almost dead in the United States. Anytime people leave their homes they are subject to being photographed or videotaped—on the highways, where they shop, even from outer space. Computers can track the habits of their users, expose what websites they visit, and even zoom in on their homes. Cell phones and other such devices can photograph or videotape people without their knowledge or consent, and GPS systems can track a person’s whereabouts twenty-four hours a day. In essence, unless you are a hermit living off the land in a densely wooded forest, your privacy is compromised on a daily basis.

Only one prong of the right to privacy has survived—“the right to be left alone.” But, thanks to “random” drug testing, even that right is moribund.

The Bill of Rights decrees that unless you are suspected of some criminal wrongdoing, the government is supposed to leave you alone. It also decrees that people are not required to prove their innocence. Yet it is not difficult to see how “random” drug testing policies and procedures abolish these rights, forcing children suspected of no wrongdoing to prove their innocence through compulsory urination, while being required to sacrifice their “right to be left alone” to do so.

The reason America has reached the stage where fascism is rapidly replacing freedom is largely due to the fact that the judicial branch of government (especially the United States Supreme Court) has abdicated its responsibility to protect The Bill of Rights.

To occupy a position in the legislative or executive branches of government one has to be elected by the people. Since these branches are dependent upon the concept of “majority rules,” they have an automatic disincentive to protect the rights of unpopular minorities.

America’s founders realized this and determined that federal judges would be given lifetime appointments, instead of elected to limited terms in office. They believed that if judges were unburdened by the need to appease the masses, or the fear of being replaced once their limited terms expired, they would be more willing to make decisions that were constitutionally sound instead of politically popular. This also meant that, unlike the other two branches of government, the judiciary had a greater motivation to make farsighted decisions that would ensure the long-term survival of The Bill of Rights.

Unfortunately this has not been the case. More often than not, the United States Supreme Court has sycophantically endorsed the repressive laws and policies created by the other two branches. It made racial segregation the law of the land in Plessy v. Ferguson; upheld the Alien and Espionage Acts, which sent people to prison simply for exercising their right to freedom of speech; enforced the Smith Act, which made it a federal crime to engage in speech that advocated the overthrow of the government; and permitted the internment of American citizens of Japanese ancestry in Korematsu v. United States.

If this wasn’t egregious enough, the United States Supreme Court has often been even more disdainful of The Bill of Rights than the other two branches of government. Prior to the Civil War most Americans hoped to keep slavery confined to the southern states. The Supreme Court, however, in its now infamous Dred Scott decision, actually encouraged the spread of slavery throughout the nation; when the State of New York, for health and safety reasons, passed a law limiting the number of hours that those employed in the bakery industry could be forced to work, the Supreme Court, in its Lochner opinion, ruled that this law unconstitutionally interfered with the bakers’ right to contract with their employers—a particularly asinine decision since, to minimize duress or coercion, contract law normally requires that the parties be relatively equal to one another.

The court’s proclivity to favor property rights over individual rights continued into the Great Depression, when President Franklin D. Roosevelt, tired of seeing his New Deal policies declared unconstitutional, threatened to “pack” the court in his favor by increasing the number of “justices.”

After Roosevelt’s threat diminished, the court resumed its old antics. In Employment Division v. Smith it decimated the right to freedom of religion. Although the United States Congress attempted to reverse the Smith decision through the Religious Freedom Restoration Act (RFRA), the court decreed that RFRA was unconstitutional because Congress did not have the authority to enact it.

In addition, the Supreme Court was so hostile to the Americans with Disabilities Act (ADA) that it became almost impossible for disabled persons to prove they were entitled to the ADA’s protection. This prompted Congress to pass the ADA Amendments Act of 2008. These amendments, however, are not improvements on the law, but instead an effort to restore the ADA to what it was originally intended to do before the court skewed and eviscerated it.

Given this legacy, it was not surprising that the first piece of legislation President Barack Obama signed into law overturned another idiotic decision the Supreme Court handed down in the case of Ledbetter v. Goodyear. This case dealt with the procedures required to file a claim under the “Equal Pay Act.”

Normally a person facing discrimination in employment has 180 days from the date of the discriminatory act to file a complaint with the Equal Employment Opportunity Commission (EEOC). However, since many employers demand that their employees keep their rate of compensation secret from co-workers, and since, under the “at-will” doctrine, employees risk being fired if they do not comply, many courts ruled that each new paycheck constituted a new act of discrimination under the Equal Pay Act, thus restarting the 180 day time period. If employees subsequently discovered that they were being unequally compensated because of their race or gender they then had 180 days to contact the EEOC.

In Ledbetter, however, the Supreme Court essentially declared that if an employer succeeded in concealing its discriminatory compensation policies for the 180 day period immediately following an employee’s receipt of his/her first paycheck, then that employee had no legal recourse under the Equal Pay Act.

Nothing is more symbolic of the disconnect between the United States Supreme Court and the rest of America than the election of Barack Obama. While the nation celebrated the racial progress that resulted in Obama winning the Presidency, the court was busy issuing some of its most reactionary and racist rulings since Plessy was decided over one hundred years ago.

In two separate cases, Parents Involved in Community Schools v. Seattle and Meredith v. Jefferson County, the Supreme Court resurrected Plessy’s doctrine of “separate but equal” by encouraging the resegregation of public schools. In their specious attempts to rationalize these rulings, some of the racists on the court even had the audacity to cite Brown v. Topeka, the landmark decision that, until these two cases, was thought to have ended the doctrine of “separate but equal” by ordering the desegregation of public schools.

And just a few weeks ago, this court continued on its racist path by narrowing the protections of the Voting Rights Act, a law created to give racial minorities a more effective voice in government.

When I think of the number of people of all races who struggled, suffered and died during the lynchings, the freedom rides, the sit-ins and the marches so that laws like the Voting Rights Act could be passed, it is disgusting to witness their courageous sacrifices being undone by four robed racists—John G. Roberts Jr., Samuel A. Alito, Antonin Scalia and Anthony M. Kennedy—who make their decisions from the safety of one of the most fortified buildings in the world.

But the vileness of these four men pales when compared to Clarence Thomas, the Supreme Court’s sole African-American member, whose self-loathing and perverse desire to appease his racist colleagues has launched him on a vindictive crusade to destroy all the gains of the civil rights movement.

Thomas himself, albeit indirectly, confessed to the origins of his self-loathing and need to appease racists during a speech where he discussed his experiences at Yale Law School.

Thomas stated that during these years he learned to disdain affirmative-action policies, because many of his white classmates believed he had been given preferential treatment because of his race. To prove these students wrong, Thomas claims he intentionally enrolled in some of the law school’s most difficult courses.

This, of course, gives rise to the question: Why should Thomas have cared what the white students thought of him? Undoubtedly many of those students were also at Yale because of preferential treatment, garnered through their parents’ wealth and influence. Yet it is doubtful that these students felt any commensurate need to “prove” themselves to Thomas.

Although it’s hard to believe that four white racists and one self-loathing African-American possess the power to destroy the rights of millions of Americans, the grim reality is that the branch of government specifically created to preserve the freedoms enshrined in The Bill of Rights will instead be the branch that destroys them.

David R. Hoffman, Legal Editor of Pravda.Ru

This originally appeared as a two-part article in Pravda.Ru