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John West

The Supreme Court, the New Deal
and the Class Struggle

Supreme Court Integral Part of the CapitalistState

(18 January 1936)

From The New Militant, Vol. II No. 3, 18 January 1936, p. 3.
Transcribed & marked up by Einde O’ Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL).

The recent decision of the Supreme Court, invalidating the AAA, when taken against the background of the Schechter Case decision last Spring and the probability of further decisions against the New Deal in the near future, brings into sharp focus many basic problems concerning the meaning and nature of the complex institutional structure of the American state. It is wholly impossible to understand these problems except in the illusion-dispelling light of Marxian theory. Any other approach condemns us to wander in the fog and mists of legal “fictions” – as the English political philosopher, Jeremy Bentham, so accurately called them – and to spend our time, like Don Quixote, arguing about dreams and fighting against windmills.

The need for the light of uncompromising Marxian theory could not be more urgently shown than by a study of the press of the Communist party and the Socialist party during the week following the AAA decision. The first editorial of the Daily Worker demanded to know whether Americans were going to continue to allow nine old men to overthrow “the decisions of the people’s representatives.” During succeeding issues, the Daily Worker has carried to ever-increasing heights its campaign against the “autocratic oligarchy” of the Supreme Court. “The King of England,” the editor says in bold-faced type, “cannot nullify acts of Parliament, but the Supreme Court can invalidate acts of Congress. It is not only a monarch, but an UNLIMITED monarch to boot.” And “the astonishing part of it” – and the indignation of the Daily Worker is here exceeded only by its surprise – “is that this power ... is absolutely UNCONSTITUTIONAL!” The Daily Worker should really retain the American Liberty League to bring suit against this outrage: it too is a stalwart defender of the Constitution.

Daily Worker Finds the Issue

The big issue before the American people, then, according to the Daily Worker, is given in a front page box:

“Unite for action to demand that Congress and the President: 1. Repudiate the right of the Supreme Court to declare laws unconstitutional. 2. Impeach judges who usurp the democratic rights of the people. 3. Amend the Constitution to prohibit the Supreme Court from declaring laws unconstitutional.”

We are reminded that, in France, the Communist party not dissimilarly demands that Laval and the Chamber of Deputies disarm the Fascist Leagues and oust the Fascist officers from the army. And the C.P. of France is similarly “astonished” that the “representatives of the people” continue to allow such subversive activities against the Republic.

The Socialist Call, if in less gross form, takes what is essentially the same point of view. Norman Thomas writes:

“Now six old men on the Supreme Court of the U.S. against 3 of their colleagues hand down a decision which practically destroys the constructive program which has been set up ... You have a complete picture of judicial oligarchy ... I join with my comrades in demanding immediate and drastic action to end this judicial oligarchy ... Real change depends upon an end of this judicial oligarchy, this government by the dead hand of a Constitution, which is given living power by the particular political and economic doctrines of the old men on the Supreme Court bench ... It becomes the most important single immediate task of the Party and the entire labor movement to push the Workers’ Rights Amendment.”

Better in N.Y. Post

Such analyses and such proposals have, of course, nothing in common with Marxism. They are reformist, not Marxist, in character. This is sufficiently indicated by the fact that the liberal New York Evening Post, the shrill New Deal defender, has taken exactly this same approach to the Supreme Court in its editorials following the AAA decision, except that its words have been more challenging and more vigorously written; and it has proposed the same reform measures.

What, then, is wrong with this approach? Where does it differ from Marxism?

What is wrong, with it is that, instead of clarifying, it obscures and glosses over the fundamental class issues which are the source and root of historical development, and, instead of exposing, it veils and softens the role of the state.

Marxism and the State

Marxism is primarily distinguished by analyzing every social and political problem from a class point of view. In contemporary imperialist society, this means that Marxism always explains and interprets events only in the light of the fundamental conflict whose course determines the direction of historical development: the conflict between the bourgeoisie and the proletariat. In terms of this conflict, Marxism interprets the role of the state as the political executive of the bourgeoisie, whose historical function is to maintain the social power of the bourgeoisie and to uphold the system of property relations upon which that social power is based.

The state, however, is not an “abstraction.” It is actualized in a whole involved maze of concrete historical forms. In the United States these include the Federal executive (the President and his subordinates and administrative departments), the Federal legislature (Congress and the departments and commissions it creates), the Federal judiciary (from the Supreme Court down), the Federal army, navy, prisons; together with all the branches (executive, legislative, judicial, military, police) of the state, county, and municipal governments. These are all in a great variety of ways, part of the state apparatus. Their central and primary historical function is to assure the maintenance of capitalist property relations: that is, to uphold the class rule of the bourgeoisie.

It is only from an understanding of this basic function that a correct analysis can be made of the various actions and activities of the different subdivisions of the state apparatus.

The Reformist Approach

The approach of the Daily Worker and the Socialist Call, however, instead of proceeding from the basic analysis of the class struggle and the class role of the state, and thence going on to a detailed analysis of the particular acts in question (here the AAA decision), does just the opposite. They take the conflict between two subdivisions of the state apparatus (the Supreme Court on the one side, Roosevelt and Congress on the other) as primary; and consequently they totally obscure the basic class role which these two subdivisions share in common, and thus also obscure the fundamental class conflict of modern society.

In terms of their approach, the Supreme Court is the representative of “Wall Street,” of the “financial oligarchy,” the “Tories.” Congress, in conflict with the Supreme Court, is “the people’s representative” (this is the Daily Worker’s own phrase). We are, then, called on to support Congress against the Supreme Court, in order to make our will felt and to secure our “rights.”

Denial of the Class Struggle

What follows? What follows is the denial of the revolutionary class struggle for workers’ power,which is and must be the struggle not to win “control” over the existing state machinery, but a struggle against the existing state, a struggle to smash the present state – which is the instrument of bourgeois rule – and to erect in its place the revolutionary workers’ state. What follows is social-democratic parliamentarism, gradualism, Kautskyism, all over again. In this manner does history take its revenge on the corruption of theory. The approach of the Communist party and the Socialist party to this problem – which is naturally not an isolated example – is part of the propagation of an anti-revolutionary ideology. In the case of the Communist party it must be understood as one item in the preparation for the possibility of supporting Roosevelt in November – a possibility which will be realized if the Far Eastern crisis sufficiently deepens. Indeed, the current analyses and phrases of the C.P. Can hardly be distinguished from those of the President.

Now Marxists do not believe that Congress is “the people’s representative.” They believe that Congress, like the Supreme Court, is part of the apparatus of bourgeois state rule. They do not deny that genuine and bitter conflict can arise between Congress and the Supreme Court, or between any other subdivisions of the state apparatus, nor do they deny the necessity for interpreting and analyzing these conflicts, and attempting to use them where possible to [the advantage of] the workers. But such conflicts, they point out, are never struggles between representatives of the working class or of “the people” on the one side, and representatives of the bourgeoisie on the other. There are always conflicts between different sections or groups within the bourgeoisie, sections which on the given issue have opposing needs and opposing ideas of how best to advance the basic bourgeois interests. In all cases, therefore, such conflicts are subordinate to the underlying class conflict, which cannot express itself directly within the bourgeois state apparatus.

How the “Founders” Reasoned

It was in this way that the “founders of our country,” who reasoned more clearly about these matters than our present Stalinists, reformists and centrists, understood the complicated governmental forms which they established under the Constitution – that magically powerful document which they designed to legalize the power of property. The intricate “checks and balances” between the three branches of the Federal government and between the Federal government and the States, with the probability of frequent conflict which these contained, were meant by them not at all to “guarantee” democracy, but to make sure that what democracy there was would not get out of bounds.

“Every institution,” wrote Hamilton, “calculated to restrain the excess of law-making and to keep things in the same state in which they happen to be at any given period was more likely to do good than harm.”

Nor have the masters of American destiny ever been too much disturbed over legal fictions. They have understood that the central question is the question of class power, not institutional form, and they have consistently approached the Constitution, the Supreme Court, and the other branches of government in the light of that understanding. During the administrations of Washington and John Adams, for example, the Supreme Court played a minor role. The question of its “right” to invalidate acts of Congress or of States as unconstitutional, left ambiguous in the Constitution itself, was not openly raised. The Federalist party, representing the commercial, banking and industrial interests – that is, the progressive class at that historical stage – held control over the executive and legislative branches, and could keep the courts in the background.

The Jeffersonian Reaction

But the Jeffersonian reaction, swept on by the agrarian and planting interests, ousted the Federalists from the Presidency and Congress. The Federalists, consequently, defeated on one front, kept their grip on the Judiciary, and used the Supreme Court to continue the advance of their basic program. Through their Chief Justice, Marshall, they immediately proclaimed the power of the Supreme Court to pass on the constitutionality of laws (the case of Marbury vs. Madison). In a long series of brilliant decisions, Marshall maintained their position. But, it should be noticed, the Federalists used the Supreme Court not to restrict the power of the Federal government, but to extend it, to enlarge its sphere of operation, and to establish its clear sovereignty over the States. The aims of the bourgeoisie could not be served without a strong national government.

But deaths on the Supreme Court bench and the Jacksonian movement altered the relationship of forces. By 1857 the Democrats, now openly and almost exclusively the party of the slaveholders, were in control of the Supreme Court, with Taney at its head. So, in the Dred Scott decision, the Supreme Court reversed the tradition of Marshall, and declared for “states’ rights” against the Federal government. In actuality, of course, the decision was not for the legal fiction, “states’ rights,” but for the slaveholders: by its terms, the Court declared that Congress had no power to legislate concerning slavery. The Philistines of those days thought that then the battle was over, and that the Northern industrialists had lost. Or, at most, they inveighed against the autocratic usurpation by the Supreme Court.

Judiciary and Class War

But the bourgeois was not going to let legal fictions block its historic road. Organized, in temporary alliance with the free Western farmers, into the new Republican party, it accepted the challenge: and fought out the issue of control of the state not in the judicial chambers, but on the field of battle. Neither the acts of Congress nor the decisions of the Court, but the Northern armies decided the basic class question – the question of which class, the bourgeoisie or the plantation owners, was to hold power. And this is the manner in which every class which means historic business settles the basic question.

The struggle which the working class faces at the present time, the struggle for power and for the overthrow of the bourgeoisie and its state, is not expressed in any direct way in the conflict between the New Deal (upheld by the President and Congress) and the Supreme Court. The struggle of the working class, in its political aspect, is a struggle against every branch and division of the state. The conflict between the Supreme Court and Congress represents in part a conflict between different sections of the bourgeoisie, in part a bureaucratic contest for control of the immense and highly lucrative governmental apparatus. The AAA decision is perhaps chiefly important for re-emphasizing the fact that the New Deal was merely a series of temporary devices to tide capitalism over a dangerous spot; and that, with profits now mounting, it has outlived its usefulness. The Supreme Court, by a reasonable division of labor, is given the job of undertaker. For Roosevelt, the New Deal remains now as pure demagogy – as a series of agitational phrases wholly divorced from social reality, with the help of which he hopes to retain enough of middle-class and labor sentiment to enable him to secure re-election.

Playing Reaction’s Game

To build up and emphasize, as the Communist party and the Socialist party are doing, a large-scale campaign to curb the Supreme Court plays into the hands of reaction. It is not that the demand to curb the court is in itself wrong. Indeed, it would be on the whole a gain if it were accomplished. The Court is an additional barrier against even partial immediate demands of the masses – as the Schechter and AAA decisions in their “restrictive” interpretations of the “interstate commerce” and “general welfare” clauses, interpretations which can be applied directly against any social security or public works acts – serve to bring out.

Nevertheless, such a parliamentary demand as the curbing of the Supreme Court should have only a minor and secondary place in the agitation and practical program of a revolutionary working-class party. Otherwise it serves to disorient and deceive the masses, and to turn them aside from more important tasks. It is the business of the revolutionary party not to foster but to smash parliamentary illusions; not to suggest the possibility of reforming the bourgeois state, but to make clear, in the living experience of the masses, the necessity for destroying that state and of setting up in its place a new state, the workers’ state. The prime reason why a revolutionary party enters into parliamentary campaigns is to bring its own full revolutionary program openly before the masses. Its parliamentary representatives sit not to win “victories” for the workers in Congress or the Courts – which, even on the smallest scale, is increasingly illusory in the decline of capitalism – but to expose the inner workings of the bourgeois state machinery before the eyes of the masses. Revolutionists utilize bourgeois parliamentarism as one means for destroying bourgeois parliamentarism.

Parliamentary Activity Supplementary

Parliamentary activity of all kinds must remain only supplementary to the basic work of promoting and strengthening the basic organizations of the masses. The poor farmers must look first not to Congress and the Supreme Court but to their unions, cooperatives, leagues, and demonstrations, for benefits and relief. The workers will have the “right” to organize when they take that right through the independent strength of their trade unions, and cease expecting it to be handed down from on high by “favorable decisions.” The one effective “curb” of the Supreme Court is, precisely, – the organized strength of the masses.

The real business of the revolutionary party is the organization of the working class and its allies for the conquest of power. Every immediate demand, every particular campaign, is correct, is justified,only so far as, in its historical implications, it aids in this central task; and is on every occasion to be condemned insofar as it turns the class aside from the road to power.

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