BARBWIRE
by
 Justice William J. Brennan now lies simultaneously dead and immortal. In
life and death, he sits among the fewest of the few: John Marshall, William
O. Douglas, Oliver Wendell Holmes, Louis Brandeis, Earl Warren, Benjamin
Cardozo.Why should you care? How could the pixyesque son of a New Jersey labor
union leader have affected your life? Well, if not for Brennan, you might
find much more of your tax money subsidizing the corporate ranching and
mining corporations which dominate rural Nevada. Before Brennan's "one
man-one vote" decision, each of Nevada's counties had one state senator.
The populous counties of Clark and Washoe were outgunned at the legislature
by 15 to two.Brennan made the case for representation by population, a view now
ironically deemed too conservative by those who continue to be frozen out
by the system. People who object to winner-take-all politics advocate
proportional representation, allocating legislative seats according to
percentages won at the ballot box by various parties. Should we so evolve,
thank Brennan. He personally considered as his greatest work his decisions
empowering voters.Brennan's advocacy for inclusion of the excluded resulted in broadening
the rights of the disfavored to seek the help of the courts. He opened
courthouse doors to women, the poor, the mentally disabled and the
imprisoned. He showed mercy for browns, blacks and gays. Brennan - gasp! -
thought they should have equal opportunity and freedom from fear and
persecution. Radical ideas to this very day.In 1973, Brennan narrowly missed placing the Equal Rights Amendment into
law. The court was tied four to four. Justice Potter Stewart would not
provide the fifth and winning vote because he was sure the ERA would easily
win ratification by the individual states. God, was the good justice ever
wrong.Four years later, the gambling-industrial complex killed the ERA in
Nevada. I was there the night this state permanently made women second
class citizens. Before the vote, I caught juice lobbyists Jim Joyce and
Charlie Bell peeking through the senate chamber door, giggling to each
other like teenage boys with a view of the girl's locker room. They
boastfully predicted the ERA's failure and told me what the exact vote
count would be.After the cleverest use of parliamentary procedure in state history by
Sen. Joe Neal (D-N. Las Vegas), Lt. Gov. Bob Rose (D) broke a tie and the
ERA passed. Conservative old birds were shocked. The Nevada good ole boys
club let equal rights for women slip out. We couldn't allow that in our
whorehouse state. Something had to be done, but what?The late Mr. Joyce, who brought corruption of government to the levels we
suffer today, saw a business opportunity. He offered a deal to
ultraconservative Mormon Sen. Jim Gibson (D-Henderson). If Joyce could get
the Nevada assembly to kill the ERA, would Gibson reverse his position on
some pet legislation Joyce's gamblers wanted? Jim Gibson had a reputation
for honesty and hard work. but this time he sold out. After all, uppity
women were on the move against traditional family values like inferior pay
compared to men.Gibson said yes and in the space of a couple of hours, Joyce turned the
entire assembly Democratic leadership against the ERA. This included Joe
Dini (D-Yerington), then in his first term as speaker. In all, eight
lawmakers who had long committed to the cause of women's rights reversed
themselves when Joyce cashed in his campaign contributions. "Remember the
eight who lied" became a rallying cry for women statewide.Oddly enough, had Justice Brennan made a simple compromise with Justice
Stewart, the later Nevada skulduggery would have been unnecessary. Unlike
Jim Gibson or Joe Dini, Bill Brennan made deals with no one, and equal
rights for women remains an elusive promise of the fading American Dream.Despite the great dissents and close calls, what a monument William J.
Brennan built to these United States. Without the work of Justice Brennan,
brilliant civil rights lawyer Terry Keyser-Cooper never could have
prevailed for disfavored little people against the cities of Reno and
Sparks. Justice Brennan certainly realized what a conservative, rich white
guys' society we have been and remain. In many ways, the right wing
backlash which began with the 1980 election of Ronald Reagan came in
reaction to Brennan, Warren and Thurgood Marshall. The "Warren court" is
still vilified for "judicial activism."Oddly but truly, that description can now just as easily be applied to the
justice of whom I'm most ashamed, my retro-paisano Antonino Scalia, and
Clarence Thomas, who seems perpetually ashamed of himself. A few years ago,
no less than Scalia ordered a survey of the country to see if circumstances
had changed. The Constitution bars cruel and unusual punishment and Nino
was looking for a way to bring back the death penalty. So, he set his law
clerks to the task of checking the country to see how usual executions had
become. (Brennan opposed the death penalty under all circumstances.)I found the entire exercise amusing. Scalia had long said that the
original intent of the framers or lawmakers should carry no weight. Just
look at the actual words as written, said Nino, conveniently forgetting
that definitions change over time. (Look up the origin of "gay" if you
don't think so.)More to the point, the Constitution itself mandated his check of changing
circumstance. Unless you review the current practices of the states, how
can you determine what's usual or un-? This seems rather clear instruction
from the founding fathers that changing times should guide the court, not
just reliance on dusty dictionaries. Maybe Nino's reputedly brilliant mind
will one day figure that out.The court's most recent term brought the dizzying spectacle of Scalia, et
al., committing wholesale judicial activism, fabricating law from whole
cloth in order to weaken the Brady handgun control act. The same criticism
was leveled long ago at Justice William O. Douglas when he found the right
to privacy—never stated in the Constitution—emanating from "umbras and
penumbras" of other rights, which eventually led to the decriminalization
of abortion in Roe v. Wade. (Brennan played a key role in shaping Justice
Harry Blackmun's most famous majority opinion, now largely eviscerated by
Reagan-Bush appointees.)Scalia, Thomas and Chief Justice William Rehnquist have not been nearly as
creative as the late, great William O., but have largely done the same kind
of thing. When they've mustered enough votes, they just concoct an opinion
to get the desired result. And so it should be.The Constitution is so wonderfully vague that it can be reinterpreted to
fit the times. Failure to address current needs means governments fall.
Ours has lasted because of the resiliency of that document with more bounce
than cannonballs off the midships of Old Ironsides.Notwithstanding Brennan, the Constitution today does not resemble the ship
by the same name which never lost a battle. With the possible exception of
the right to refuse to quarter troops in your home, no part of the Bill of
Rights (the first 10 amendments to the Constitution), stands undamaged.If not for Brennan, you might not be reading this column today. Brennan's
decision in the 1964 case of New York Times v. Sullivan established a new
standard of libel law, especially with respect to public figures. It came
just in time for the turbulent 1960's and assaults on press freedom begun
by the Kennedys and escalated by Richard Nixon and Spiro Agnew.If you are sickened by what's available to you via the media today,
imagine it without the impact of Brennan. Do you think you'd ever read
about who's doing what, with which and to whom down at city hall? Would you
like to see television run by those who write bulletins for the post
office? Picture news reportage filtered through 48 layers of Pentagon press
spokespersons or the gobbledygook of your average city manager.You know more than you otherwise would thanks to William J. Brennan.All his life, the little giant was able to practice what most only preach: that this country protects the rights of the individual, no matter how weak, flaky, disreputable or despicable.Godspeed and thank you.Be well. Raise hell.
Andrew Barbano is a Reno-based syndicated columnist and 28-year Nevadan.Barbwire by Barbano has appeared in the Sparks Tribune since 1988 and parts of this column were originally published 7/27/97.Nevada Instant Type in Sparks and both Office Depot Reno locations. |
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