But if the entire Judicial Power can be based upon a mere implication . . . .

READING THE BOOK Government by Judiciary was full of pretty startling insights into the trouble with the Supreme Court as an institution and with the powers it has claimed for itself and, as was habituated through the decades and centuries of it being taught in law schools and civics classes, accepted unthinkingly and embedded into the lawerly and judicial manipulations to work things to the desired ends of the lawyers and judges and, worst of all "justices" and those of their class and clients, becoming the common received non-wisdom.  One of the most interesting to me was contained well in the next section I'm beginning to go over today, two main and other associated cases that expose what a sham the whole thing is.   It exposes the absurdity of the self-granted powers of the courts as defenders of The Constitution when the powers are no where found in that Constitution.   If they can do it, why can't the other two allegedly co-equal branches find that their given, even greater explicitly granted powers, contain hidden powers, as well?

Briefly stated, his thesis was this: The power of the Federal Judiciary to declare laws unconstitutional is not given expressly in the United States Constitution. It is based upon logical deduction or inference from the whole system of government provided for by that instrument. In other words, it is what lawyers call an “implied power.” But if the entire Judicial Power can be based upon a mere implication, then other vast powers may have been granted by the Constitution in the same manner; and there is no valid reason for assuming that the judiciary is the only one to whom great powers have been granted by implication. If, therefore, Marshall and his followers were correct in exercising the right to declare legislation unconstitutional, Congress should have the right to enact all such laws as it may reasonably find implied in the powers granted to the legislative department by the Constitution. 

Keep that in mind because I think it's an extremely important question.

Why not?  Unlike the unelected judiciary, appointed by the president and confirmed by the, originally, as well, unelected Senate, the House of Representatives and the President are directly placed into that position by what is pretended by the Supreme Court and the Constitution to be the ultimate authority, the Voters.  Though, as the Roberts Court and other Courts in the past have shown repeatedly, when Supreme Court "justices" make resort to such claims, they have little to no respect for the actual Voters being able to cast a vote and to have that vote count.   Whatever dangers you can point to in the elected Legislature enacting laws is as true of the Supreme Court's claimed powers, and in the case of the Legislative branch, it's far harder to enact a law and it has to, generally, have the assent of the President whose abilities to do such things as fund his own over reaching ambitions are checked by the House and Senate - theoretically, at least.   There are no such checks on the assumed powers of five or six Supreme Court "justices".   Though the same fascist legal theorists who have packed the courts have come up with theories that under their interpretations of the words of the goddamned Constitution give presidents (of their own party) dictatorial powers, at least a couple of the sitting members of the Court would seem to, at times, at least, agree with that.  When it's a president of their own party. 

The importance of that point is made quite clear by the dry sounding Legal Tender Cases and the conclusions to be logically drawn from them.

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OK, this is important to seeing through the common received and mandated point of view of this and I'm going to give it to you in large pieces.  Note that I have tried to attach footnotes on the printed page with the paragraphs or even within paragraphs to which they apply, putting the footnotes in square brackets and using ellipses when I have broken a paragraph, hopefully for clarity. 

 The moral of this case is the same whatever our guess may be on the last subject, and whatever our opinion may be as to which court decided correctly the famous case of Lewkovncz v. Queen Aeroplane Co. And that moral is; That legislatures do not usually pass laws which fly in the face of the constitution, and that when a legislature passes a law there is at least room for argument as to whether or not it is constitutional, so that honest men may honestly differ about it. Also, that giving judges the power to pass upon the constitutionality of legislation does not necessarily protect us against unconstitutional laws. And it may suggest at least the possibility, under our system, of law being declared unconstitutional which are not really so.

The last point is brought out strikingly in the Legal Tender Cases. In February, 1862, in the midst of the Civil War, Congress passed a Legal Tender Act which made irredeemable paper money legal tender for all debts. The act was passed after considerable agitation in the country and long debates in Congress, in which the opinions, pro and con, moral, political, and economic, were thoroughly canvassed and duly considered. It was passed on the
recommendation of that great jurist and statesman, Salmon P. Chase, then Secretary of the Treasury and afterward Chief Justice of the United States, who considered the measure wise, just, and presumably constitutional.

[There has been some question as to what was Chase’s original position on the constitutionality of the legal tender legislation. It seems to us that there can be no doubt of the fact that, whatever misgivings Chase may have had as to the advisability of the issuance of legal tender notes except in a case of extreme necessity, he
could not possibly have doubted the constitutionality of the legislation actually recommended by him. Aside from the extreme improbability of a man of Chase's type recommending unconstitutional legislation, it must be remembered that the question of constitutionality hinged on the question of necessity, and Chase’s final
recommendation of the legislation was due to the fact that he had become convinced of its necessity. Mr. Justice Strong, speaking for the Court in the Legal Tender Cases, said: “Even the head of the Treasury represented to Congress the necessity of making the new issues legal tenders, or, rather, declared it impossible to avoid the necessity.”]  

February, 1870, after the law had been in operation for eight years and its constitutionality upheld by every State Court but one, the United Supreme Court declared this law unconstitutional by a divided court, Mr. Salmon P. Chase, as Chief Justice of the United States, writing the prevailing opinion. . .

[Justice Miller, in his dissenting opinion in Hepburn v. Griswold, said: “Fifteen state courts, being all but one that has passed upon the question, have expressed their belief in the constitutionality of these laws.”]

. . . The minority of the court wrote vigorous dissenting opinions. At the time of the decision the court consisted of seven members, four of whom constituted the majority declaring the law unconstitutional. There were two vacancies in the court at that time, and on the day when this decision was announced the President filled the two vacancies by appointing two new judges. It so happened that, technically, the decision rendered applied only to debts contracted before the passage of the law, although the rea-soning of the court was broad enough to include all debts; and it was commonly believed by the profession and the country that the opinion written by Chief Justice Chase settled the question of the constitutionality of the law both as to pre-existing debts as well as to debts incurred after the passage of the law.

After considerable manoeuvring which need not be gone into here, the subject obtained a new hearing fifteen months later, with the result that the court reversed its first decision and upheld the constitutionality of the law both as to pre-existing as well as after-incurred debts. The decision this time was by a majority of five to four, the minority consisting of the four judges who constituted the original majority; while the new majority consisted of the three judges who constituted the original minority plus the two new judges. These cases will be considered at considerable length further below. Here we shall only remark the following:

The Constitution, as is usually the case when the constitutionality of a law is called into question, is silent on the subject in so far as its express provisions are concerned. Both sides, therefore, argued by a process of deduction. So far the famous Legal Tender case was like the obscure Lewkowicz case. But the Legal Tender case involved really momentous questions. And the arguments, while seemingly technical, were in reality of a quite different character, in that the upholders as well as the opponents of the constitutionality of the law argued not from dry texts and legal erudition but frankly from political and economic considerations. The upholders of the law considered it wise, just, and, above all, absolutely necessary for the preservation of the very existence of the nation in war time. On the other hand, the opponents of the law held it to be not only unwise and unjust, but also utterly unnecessary for the successful conduct of war. In short, they thought it an utterly worthless and even harmful law both in peace and war. And both sides were quite convinced that the Constitution was on their side. Their respective dissertations on the subject are interesting examples of what lawyers and judges mean when they say that a law is either constitutional or unconstitutional, when they speak in terms of living reality instead of legalistic jargon.

But the controversy did not end there. Fourteen years after the original decision of the Supreme Court holding the wartime Legal Tender Act unconstitutional on the ground that even the urgency of war does not give Congress the power to pass such a law, the same Supreme Court decided that Legal Tender laws are constitutional not only as war measures but even in times of peace. In the meantime the court had undergone some more changes in personnel. Chief Justice Chase was gone, and so were Judges Nelson and Clifford; so that of the former majority of the court
who declared the Legal Tender Act unconstitutional Judge Field alone remained on the Bench, and he wrote a very vigorous dissenting opinion, protesting against the decision of the court which
now held that Congress had the right to do in times of peace something which it had fourteen years ago held could not be done even as a war measure.

The following lessons may be drawn from this preliminary examination of the Legal Tender Cases:

First: Honest men will honestly differ as to what is wise, just, or expedient, in public measures.

Second: In a government like ours, in which the judges possess the power to declare laws null and void for alleged repugnance to the constitution, every judge tries to read into the constitution his notions of what is wise, just, or expedient.

Third: In passing upon the constitutionality of a law our judges interpret the constitution in the light of their notions of what is wise, just, necessary, or expedient; and declare unconstitutional what they consider unwise, or unjust, or inexpedient,— being guided almost exclusively by their philosophic, political, social, and economic beliefs, and little or not at all by constitutional texts.

Fourth: Under our system, which gives the judiciary power to declare laws unconstitutional, important laws which are constitutional under our own established mode of testing the subject  be declared to be unconstitutional by the judges and there is no redress. If it had not been for the chance of the change of personnel at the very time that the original decision on the Legal Tender Act was rendered, that decision would still be law today, and would have inflicted upon the country the untold woes which the original minority foretold would be the result of that unfortunate decision.

Fifth: Giving the judiciary power to declare legislation unconstitutional does not protect us against unconstitutional legislation. For if Mr. Chief Justice Chase and Associate Justices Nelson and Clifford and Field be believed, we have been living under unconstitutional legal tender laws ever since the passage of the original Legal Tender Act in 1862, with the brief interval of fifteen months which elapsed between the first and second legal tender decisions.

Not being a lawyer or law scholar or judge or "justice" I will assert that Louis Boudin was being lawerly in his limits put on the problems of such judicial thinking to abstract ones, I think it is at least as likely if not more so than the personal preferences and desires, the class, ethnic and financial interests, the partisan interests of the "justices" have constantly motivated their finding impersonal and, so, dishonestly clean reasons for doing what they do from the bench.  I would guess that that's often truer than not when it is a case of clear judicial injustices in which the economic, ethinic, religious, or social class the "justice" belongs to benefits and one he or she is not a member of suffers as a result of their ruling.  Perhaps the nobler of the dissents are less infected with that than the winning majorities, I'd have to be a far better scholar than I can imagine being to discern that but it's my hunch that is the case.  If my hunching is any better than Supreme Court "justice" hunching is something I'll bet isn't decided in view of their legal educations and my lack of it.  You don't have to have gone to college to know grift and a con job dressed up in pantomime black robes.  In the case of the original majority in the Legal Tender case, their hunch would have been a continuing and intolerable disaster for the country and the world if it had remained in place.  And it dealt with money, something dear to all of their hearts. 

Personally, I'd like to see all judges and "justices" be required to take the robes off.  It might surprise you but I don't mistake them as religious figures or even elevated ones, they should be defrocked of such implications that so impress idiots in theatrical presentations and court reporting.    The Roberts Court should dress in sack cloth and ashes for its rulings overturning equality and justice.