AND NOW COMES the reason that I've had such a hard time presenting Louis Boudin's masterful, thorough and dangerously ignored attack on the usurpation of government by the Supreme Court, his evidence comes in the form of some very long, though interesting, quotations which have to be read together to grasp his point.
I will attempt to present them day by day with links to the preceding parts of his argument for checking, I'm temped to start another blog to reference where I can present his entire arguments as one text without commentary. I am not as optimistic today as Louis Boudin was that the habits and skills of a largely print on paper intellectual milieu will retain many readers in 2022. Not even for something as importantly revelatory as his text.
So here is the first part presenting the first claims on which later usurpers based their claims for government by judiciary from James Wilson, the Pennsylvania "founder," associate justice of the first bench of the Supreme Court, hapless and flagrant land speculator (crook would be a more honest term for it), bankrupt who spent time in a debtors prison WHILE HE WAS STILL AN ASSOCIATE MEMBER OF THE COURT, one who, his son having paid the debt he was jailed for, took to ridin' the circuit to avoid his creditors and who very possibly died at a relatively young age far from his home.
The first authoritative statement of the nature of the Judicial Power was made by James Wilson, one of the framers of the Constitution, and subsequently a Justice of the United States Supreme Court. Next to Alexander Hamilton, he is the chief reliance of those who believe that this power was intended by the Framers to be, and was, included in the Constitution. In a series of lectures delivered in 1791, while a member of the Supreme Court, he twice touched upon this subject. The first time he said:
“In the United States, and in each of the commonwealths of which the union is composed, the legislative is very different from the supreme power. Instead of being uncontrollable, the legislative authority is placed, as it ought to be, under just and strict control. The effects of its extravagancies may be prevented, sometimes by the executive, sometimes by the judicial authority of the governments; sometimes even by a private citizen, and at all times by the superintending power of the people at large. These different points will afterwards receive a particular explication. At present, perhaps, this general position may be hazarded—That whoever would be obliged to obey a constitutional law, is justified m refusing to obey an unconstitutional act of the legislature—and
that, when a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge; he must, it is true, abide by the consequences of a wrong judgment.” (James Wilson, Works, Vol. I, p. 188)
The “particular explication” appears in a passage in a subsequent lecture, and reads as follows: “Two contradictory laws, we have seen, may flow from the same source: and we have also seen, what, in that case, is to be done. But two contradictory laws may flow likewise from different sources, one superior to the other: what is to be done in this
case? ...
“ ‘I know of no power,’ says Sir William Blackstone, ‘which can control the parliament.’ His meaning is,obviously, that he knew no human power sufficient for this purpose. But the parliament may, unquestionably, be controlled by natural or revealed law, proceeding from divine authority. Is not this authority superior to anything that can be enacted by parliament? Is not this superior authority binding upon the courts of justice? When repugnant commands are delivered by two different authorities, one inferior and the other superior; which must be obeyed? When the courts of justice obey the superior authority, it cannot be said with propriety that they control the inferior one; they only declare, as is their duty to declare, that this inferior one is controlled by the other, which is superior. They do not repeal the act of parliament; they pronounce it void, because contrary to an overruling law. From that overruling law, they receive the authority to pronounce such a sentence. In this derivative view, their sentence is of obligation paramount to the act of the inferior legislative power.
“In the United States, the legislative authority is subjected to another control, beside that arising from natural and revealed law; it is subject to the control arising from the constitution. From the constitution, the legislative department, as well as every other part of government, derives its power; by the constitution, the legislative, as well as every other department, must be directed; of the constitution, no alteration by the legislature can be made or authorized. In our system of jurisprudence, these positions appear to be incontrovertible. The constitution is the supreme law of the land: to that supreme law every other law must be inferior and subordinate.
“Now, let us suppose, that the legislature should pass an act, manifestly repugnant to some part of the constitution; and that the operation and validity of both should come regularly in question before a court, forming a portion of the judicial department. In that department, The judicial power of the United States is vested’ by the ‘people,’ who ‘ordained and established’ the constitution. The business and the design of the judicial power is, to administer justice according to the law of the land. According to two contradictory rules, justice, in the nature of things, cannot possibly be administered. One of them must, of necessity, give place to the other. Both, according to our supposition, come regularly before the court, for its decision on their operation and validity. It IS the right and it is the duty of the court to decide upon them: ite decision must be made, for justice must be administered according to the law of the land. When the question occurs - What is the law of the land? it must also decide this question.
In what manner is this question to be decided? The answer seems to be a very easy one. The supreme power of the United States has given one rule: a subordinate power in the United States has given a contradictory rule: the former is the law of the land: as a necessary consequence, the latter is void and has no operation.
“In this manner it is the right and it is the duty of a court of justice, under the constitution of the United States, to decide.
“This is the necessary result of the distribution of power, made, by the constitution, between the legislative and the judicial departments. The same constitution is the supreme law to both. If that constitution be infringed by one, it is no reason that the infringement should be abetted, though it is a strong reason that it should be discountenanced and declared void by the other.”
(James Wilson, Works, Vol. I, p. 414 et seq,)
Lest you be wowed by the thinking of Wilson and, in the next post, John Marshall, I will preview Boudin's argument pointing out that, after presenting their reasoning, pointing out the shifting nature of the arguments over the allegedly unmoving nature of the Constitution they claim they are serving, Boudin points out that their arguments, made when written constitutions were a novelty, he says that that of the United States and the various states in it were the only countries that had written Constitutions at the time so their arguments were absurdly broad and merely theoretical.* He points out that among the many "civilized" countries that adopted written Constitutions after that, no doubt with the example of the United States as the lab specimen of what to avoid as well as what to emulate, didn't give such powers to a supreme court over the legislature.
His main point to these nice, logical arguments is that real life is not conducted on the basis of logic. If you look at the heart of Wilson's argument:
Instead of being uncontrollable, the legislative authority is placed, as it ought to be, under just and strict control. The effects of its extravagancies may be prevented, sometimes by the executive, sometimes by the judicial authority of the governments; sometimes even by a private citizen, and at all times by the superintending power of the people at large.
And compare it to the present day, Republican-fascist majority Court, you will first be shocked over the lawyer-Court member Wilson not having been able to imagine JUDICIAL EXTRAVAGANCIES for which, by the terms of the Constitution "the superintending power of the people at large" is powerless to correct. Such a power is in the hands of "the people at large" when it is a question of legislative or executive "extravagancies." Though the Roberts Court is making even the correction of those elected officials by a vote by The People at large impossible by their upholding the Republican-fascist rigging of elections by excluding Black Voters and other classes of voters through Jim Crow means, emulating the status quo when Black People, Women, other People of Color and minority groups, as well as unpropertied White men were prevented from voting.
If he had a hard time imagining judicial corruption it could hardly be because the judges and "justices" of his era were careful not to make rulings that blatantly favored their own, personal wealth or, certainly, not to harm it, the wealth of their children and other relatives and members of the class which ruled the country. If he lived a little longer he'd have had an excellent example in that in John Marshall who never ruled in favor of justice for a slave even as, we now know, he held hundreds in slavery, the basis of his and his posterity's fortune.
As I mentioned James Wilson was a flagrant land speculator, one who came to ruin through his borrowing to acquire land that fell greatly in value in an economic crisis in the 1790s. He is known to have held at least one slave, though as I've pointed out here recently, the estimates of the numbers of slaves held by the idolized founders tend to be underestimates. I have pointed out that another founder, Elbridge Gerry, notorious for his invention of the gerrymandering of congressional districts to favor his own party, was also a notorious land thief, um. . . , "speculator." Gerrymandering now a protected practice under the Roberts-Plessy Court as it gutted the Voting Rights Act. One wonders if it were Democrats doing it if they might not have found verbal gymnastics to make it appear they were finding a legal way of finding a difference. Though I'm unaware of any such efforts for the purpose of racial or class exclusion by Democrats after the Southern segregationists flocked to the Republican Party.
Speaking of the corrupt manipulation of congressional representation, Wilson was one of the authors of the notorious three-fifths privilege of the slave owners, giving them increased electoral and Congressional power through being able to count slaves as three-fifths of persons for the census and the number of congressional seats, the better to enforce their privileges as owners of other People and thieves of their labor. He did oppose a Senate, which is about the best thing that can be said of his role in the Constitutional Convention. Though he is also responsible for some of the more troubling and unwise phrasing of the sections dealing with the executive branch, leading to the modern neo-fascist law-school theory, now represented on the Supreme Court, the unitary executive. In case anyone wanted to grant Wilson deific powers of thought and foresight.
The more I look into the actual words and acts and characters of the idolized founders, the more I realize that virtually everything popularly presented about them are pious lies told for the most corrupt of ulterior motives, not least of which is the protection of those tools given to oligarcy and the slave power by the rich and powerful white men, many of the most active of them lawyers, the Senate, Electoral College, with this view of the Supreme Court by the Supreme Court, that branch of the government and the benefits they get from pretending its the one true holy church of government as it continues to benefit them. The media, owned by the rich and powerful beneficiaries of that system are as in on that lie as any group of liar-lawyers are.
* At the time the great Chief Justice penned these famous words, mankind had had very little experience with written constitutions. When the United States Constitution was adopted there were no other written constitutions in existence outside of our own state constitutions. This situation had changed somewhat, but not very materially, at the time the great Chief Justice wrote his opinion in Marbury v. Madison. But since then the world went on a written-constitution basis, so to say, so that now there is practically no civilized country in the world, with the notable exception of Great Britain, which has no written constitution. The number of written constitutions now in existence is legion. And practically each and every one of these written constitutions is a refutation of Marshall’s basic assertionn, the assertion which he considered, according to his own words, “as one of the fundamental principles of our society.” For under none of those numerous constitutions has the judiciary department the power to declare unconstitutional a legislative act of its own government as in contravention of its own constitution.
As a consequence of this ruinous effect of the march of history upon Marshall's logic, the supporters of the Judicial Power find themselves compelled to look for other arguments with which to buttress, or to provide a substitute for, the great Chief Justice’s logic.
I will comment that I am beginning to wonder if Canada in its 1967 Constitution might wonder at times if they've allowed their Supreme Court to emulate the American model a bit too much to be consistent with keeping the country together and free of the most malignant of American incursions into what was once a better country than ours.
No comments:
Post a Comment