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Reestablishing Justice in America
The Constitution tells us that one of the basic purposes of “we the people” is to “establish justice.” For the founding generation, that meant, above all, equal treatment for all citizens under the rule of law. Nowadays, the 1% is seeking to corrupt the rule of law and replace it with arrangements to serve their power. The fight against them is a fight to carry forward the promise of the American Revolution to generations yet to be born—to see that promise more fully and universally realized instead of corrupted.

One of the best windows that I know of onto the culture of the revolutionary era is to be found in the writings of Francisco de Miranda, the only person to fight in the American Revolution, the French Revolution, and the wars of independence in Latin America. In 1783 and 1784 he travelled from South Carolina to New England and his diary offers a fascinating perspective on the United States of that period. At his first American barbecue, he observed that “the very first magistrates and people of note ate and drank with the common folk, passing the plate around, and drinking out of the same glass. A more purely democratic assembly could not be imagined. America incarnates all that our poets and historians imagined about the mores of the free peoples of ancient Greece.”

On his way to New York, Francisco de Miranda was told an anecdote he thought worthy of being immortalized: near King’s Ferry on the Hudson, during the revolutionary war, it seems “A farmer who owned the land on which Rochambeau’s troops were encamped asked for his rent. The French officers paid no attention to this ‘absurd claim.’ Seeing this, this republican clodhopper cut short any further discussion and went off to fetch the Sheriff, asking him to arrest the trespasser…. Imagine the arrival of these two poor countrymen—the plaintiff and the Sheriff—unarmed but strong in the support of the Law, and resolved to arrest the French General, M. de Rochambeau, in front of all his troops…. The General was duly summoned by the Sheriff and required to pay his due (all of ten or fifteen pesos). So ended the affair…. How, in such a country, could desert land fail to bloom; how could the shiest and most timorous of men fail to turn honest, just, hard-working, educated, and courageous.”

The contrast with our own day is painful. Our legal resources to seek justice are steadily being eroded by such devices as binding arbitration clauses in commercial contracts. As a member of Congress, I would introduce legislation to make such clauses unenforceable. As matters stand, from failures to keep our data secure, to access to software, to access to nursing homes, binding arbitration clauses are increasingly an unavoidable precondition of doing business. By removing the threat of lawsuits, these clauses minimize both the costs of malfeasance to the 1% and, with that, remove incentives to prevent abuses in the first place. This kind of corruption must be rooted out.

The contrast between the 1% and everyone else—and especially the poor—is most striking when an individual runs afoul of the criminal justice system. There are 450,000 people in our nation’s jails today pretrial—that is to say 450,000 people presumed innocent—450,000 people the vast majority of whom are there not because they pose a flight risk or a danger to society, but simply because they can’t afford to post a monetary bond. For more information on the horrors that are taking place, I would urge you to read Michael Zuckerman’s powerful article, “Criminal Injustice: Alec Karakastanis puts ‘human caging’ and ‘wealth-based detention’ in America on trial.”

I have been strongly influenced in my own outlook by James Wilson—the most brilliant jurist among the founding fathers—who was not only a leading voice in the constitutional convention, but who served on its committee of detail and actually drafted much of the Constitution’s language. For Wilson, we—the American people—are “sovereigns without subjects.” This was—and is—a succinct way of stating the most basic ideal of the American Revolution. It took a civil war, and the civil rights movement, to even begin to make this true for African-Americans. It took the suffragists, and the women’s rights movement generally, to even begin to make this true for women. And it took the organization of trade unions, and the labor movement generally, to even begin to keep this true for working people—to prevent the power of the state being used on behalf of corporations to make subjects of workers. In our own day, it will take a moral and political revolution to keep the 1% from making subjects of all the rest of us and destroying the promise of the American Revolution. It’s time to take our country back.