The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the Judges exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.

OVER THE PAST FEW YEARS as the Supreme Court was packed with Republican-fascists by the Republican-fascist controlled Senate and Republican, now Republican-fascist presidents and as things were rigged by them to deprive Democratic presidents of their appointments, I've repeatedly advocated a serious curbing of the self-granted powers of that most reactionary roadblock to progress peddled as a sacred protector of exactly what they have had almost as much of a role in killing as the anti-democratically constituted Senate. 

In doing that I have repeatedly advocated people read the paper of 1911 and then the massive two-volume book on the subject by the radical lawyer Louis Boudin.  I have long wished that I had the time and stamina to go through at least it's major arguments for reigning in the imperial court which  has, except for the rarest exception in its history, proven the virtue of elected officials making the actual law that judges and "justices" are supposed to administer.  

It would be a massive undertaking probably taking at least a year and it would probably dominate all of my time and it would definitely tax whatever audience this blog has.  

But with the announcment of the radical Republican-fascist majority on the court getting ready to send us back to Plessey v Furgusson  something has to be done. 

Here is the beginning of the first volume of the book Government By Judiciary, it has some eye-opening things to say as well as a few things that probably need going over, I'll try to keep my commentary to a minimum.  

I will ask you to note several things in mind, 

1. I am doing something I hate to do, using the machine generated text of the book as found at Archive.org, I generally prefer to type it out from a pdf file.  I have attempted to catch all of the "typos" the machine made, machines not being intelligent at all.  I am sure there are some I will miss and I'll, no doubt, introduce new flaws. 

2. Louis Boudin's writing style is academic and old fashioned, though he was not a bad writer at all of the type at that time.  He is always worth the effort of reading him because he was a very good scholar as well as someone who looked at it from the unaccustomed point of view of someone who was a radical egalitarian and, in his early days, a Marxist.  I believe, from what I've read, even before he became somewhat disenchanted with communism as he saw it put to the test of use, he was honest enough to denounce the jackasses around such figures as destroyed the old and somewhat successful Socialist Party crackpots, which most of them are.  

3. Since Boudin uses so many lengthy quotes in his text I will alter my usual practice and only highlight his text so I can put things he quotes in italics.  Any comments by me will  not be highlighted and unitalicized. 

------------------------

By Way of Introduction


IN a sense it may be said that it is the purpose of the present work to prove one statement made by Mr. Justice Oliver Wendell Holmes and to disprove another,—although both of these statements were made after the present work was practically finished and at the time of its commencement the writer had no expectation that Judge Holmes would make either of them.

The earlier of these statements—the one the present writer has endeavored to disprove—was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, (275 U.S. 142), decided November 21st, 1927. It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph. Says Judge Holmes:

“Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty that this court is called on to perform.”

Such a statement coming 'from such' a source should give pause to any one—and the present writer is- second to none in his admiration for the Grand Old Man of American Jurisprudence. Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by the present writer in an essay published by him twenty years ago in the Political Science 'Quarterly (Government by Judiciary, 26 P.S.Q, 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.

This belief notwithstanding, the term “usurpation” has never been used by the author in this work as his own characterization of the assumption of power involved—for the reason that the use of this term places the emphasis on a wrong aspect of the historical phenomenon under consideration. To the ‘legitimist” the most important question about the Napoleonic regime was the great Corsican's “usurpation.” But to the true historian this is a comparatively minor matter in estimating the character and quality of that regime. Also, the use of that term is misleading, in that it gives an entirely erroneous impression of the meaning of Chief Justice Marshall's act in delivering his famous dictum in Marbury V. Madison, The impression created is that on the American Eighteenth Brumaire, which happened to be February 24th, 1803, John Marshall put the crown on his head by delivering his celebrated opinion, and that thereupon the American Court Empire as we know it was complete. This is history as she is usually written, by official historians as well as “muckraking” radicals. With this difference: According to the official historians the crown was forged in the smithy of the “Framers” and lay more or less hidden in the folds of the Constitution,— like Wotan's sword embedded in the oak, waiting for Siegmund to bring it forth and use it for mighty deeds—so that nothing actually took place on February 24th, 1803, but a legitimate coronation, when the rightful heir assumed the crown rightfully his. While the “muckraking” radicals contend that the act amounted to a usurpation of powers never granted by the Constitution, and the exercise of which by the court is a continuous invasion of the rights of the Legislature.

But nothing is further from the truth. Marshall's decision was far from the dramatic event which it is usually pictured to have been. Nor did it have the implications usually ascribed to it. It is our contention that Marshall’s act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the courts' own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is. Hence the actual plan of this work, which—while giving to the pre-Marbury history of the Judicial Power all the attention it deserves—devotes most of its attention to the development of that power since the decision of that famous case, in an endeavor to prove that there was not one dramatic assumption of power, but rather a continuous and gradual encroachment by the courts upon the legitimate rights of legislature, executive and people. So that what was admittedly intended to be a government consisting of three equal and coordinate departments, with the primacy in the Legislature and the ultimate power in the people themselves, has in course of time, through work which Jefferson had characterized as that of “sappers and miners” steadily working to undermine the Constitution, become what some of the Judges have themselves termed a Judicial Despotism, with all powers lodged in an irresponsible judiciary.

This brings us to the second of Mr. Justice Holmes’ statements. As we have seen, Mr. Justice Holmes believes that the courts rightfully exercise the power of declaring laws unconstitutional. But what is that power?  The official theory as laid down by Marshall in Marbury v. Madison, and as it has been re-affirmed and re-asserted many times since, is that it is a necessary consequence of our system of government, and that its existence depends upon, and its exercise is measured and limited by, that necessity. It is a fundamental point in this theory that the courts have no general supervisory power over legislation, but that when in the course of the regular administration of their own business, the courts are confronted with the dilemma of following either the Constitution or legislative enactment which conflicts with the Constitution, they are of necessity compelled to follow the Constitution rather than the legislative enactment, since the Constitution is superior to both courts and legislature. It is a necessary corollary to this fundamental position, and therefore a canon of  constitutional “interpretation” well-recognized by the official theory, that before a statute can be “disregarded” its conflict with the Constitution must be clear and beyond doubt. In other words, the primary duty of judges is to enforce the law as made by the Legislature, unless they have a clear mandate from the Constitution itself to do the contrary. If this theory, announced by the courts themselves, were observed in practice, the question of the rightfulness of the power, while still important, would not be so pressing a problem to the people of this country as it actually is, for the simple reason that cases where either Congress or state legislatures disregard a clear mandate of the Constitution are so rare—if any have ever occurred at all—that the question would be rather of theoretical interest to philosophically-minded students of our system of government than of practical import to the ordinary citizen.

Unfortunately, the official theory does not at all tally with the facts. The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason of such disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject. So much so, that to declare laws unconstitutional has become a matter of almost daily routine for the judicial machine, and “unconstitutional” has become a “term of art,” as the lawyers call it, a facon de parler, a manner of speaking, the real meaning of which is: “We, the judges, think this is a bad law.” The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the Judges exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.