By this time, the reader has probably guessed that there is no such express provision in the New York State Constitution as Mr. Abbot’s opening statement of facts would lead an uninitiated layman to assume

THIS NEXT SECTION of Louis Boudin's text uses a long passage from a rather tedious paper by a lawyer trained in the 19th century to make some rather simple points about the business of Supreme Courts overturning legislation and making other such pronouncements as we are now used to Supreme Courts making, so used to it that we don't question their legitimacy or danger.  Among those points are

- That there are lawyers, scholars of the law, judges and "justices" as eminent or more eminent than those who are making such pronouncments from the Supreme Courts who are on record - with their own view of the evidence and facts, etc. which come to another, sometimes the opposite conclusion.   This happens all the time ON  the U. S. Supreme Court when some of its stupider members write opinions which are reasonably and soundly thrashed by the dissent of the losing side, yet the desired outcome of the five or six or, occasionally, more of the "justices" is what rules.

- That because of this the decisions of the Court are not a logical necessity of the facts and law in front of them BUT ARE MORE AND NOT LESS AN EXPRESSION OF THE PREFERENCES OF THE "justices".  

-  That the expansion of, at least in the U. S. Constitution, unspecified powers given under the Constitution to the Supreme Court, had even at that time grown far, far beyond the powers claimed by John Marshall in the legendary Marbury vs Madison case.   I would expect that with the outrageous acts of, for example, the Rehnquist court and now the Roberts Courts, Louis Boudin might have shown that they have gone beyond what was claimed for it by the paper he cites.  

Note:  All of the bold text is Louis Boudin's, the passages of the paper cited by him are bold and in italics.

Before proceeding, however, to an examination of the historic development of the Judicial Power from its comparatively small beginnings to its present commanding position, we shall discuss here two cases as illustrative of the intricacy of the subject and of its real meaning in the life of our nation. These cases will show, on the one hand, that even in its simple form, the thing is not quite so simple as it might seem to the uninitiated who may read Marshall’s logical exposition, and as it may have seemed to Marshall himself — at least, not so simple in practice as it may seem in theory. And, on the other hand, these cases will illustrate the difference between the right of a judge to obey the written dictates of the Constitution in preference to a legislative act, modestly asked for by Wilson and Marshall, and the great governmental agency pervading and controlling every department of our life which that modest power has since become.

The two cases in question are connected with two epochal events in the history of the Judicial Power and of its literature. One is the famous Legal Tender case, or series of cases. The Legal Tender decisions are one of the greatest events in the history of the Judicial Power in this country, as well as in the history of the country itself. In addition, the last of them is the starting point of the modern literature of our subject. The second
case was of no such importance either in the history of the Judicial Power or in the life of the country; in fact, it was of no consequence whatever in either, so that its name is probably unfamiliar to all but a few of the closest students of the subject. But it was lifted from obscurity by the committee of the New York Bar Association appointed to consider our subject, to which we have already alluded.  It also deserves attention in itself, for it is admirably suited for the purpose of illustrating the point we have in mind, which is, that when a lawyer speaks of two written texts as contradicting one another, it does not necessarily mean that they actually contradict each other in the ordinary sense in which laymen understand the word “contradict.” What it usually means is, that an astute logician, particularly if he is given to medieval, scholastic reasoning, may find a contradiction between
them. We do not mean to say that it always means just that, but only that it frequently means only that and nothing more. Therefore, when the judiciary is given the power to declare a law unconstitutional whenever the judges think that the law is repugnant to the constitution, it actually means that the judiciary is given the
power to declare null and void any law, important or unimportant, whenever the particular judges who have the last say in the matter, or a majority of them, may find, by some scholastic method of abstruse legalistic logic, that the law is not in consonance with the constitution. On the other hand, the better known case will illustrate the fact that what is sometimes called by the judges a contradiction between an act of the legislature and the constitution, means in reality a contradiction between the law in question and what ought to be in a good constitution — that is to say, in a constitution embodying the particular political, social, and economic beliefs of the judges deciding the case.

We shall begin with a consideration of the less famous case.

In a separate concurring memorandum prepared by Mr. Everett V. Abbot, one of the members of the Special Committee of the New York State Bar Association, included in the first section of its report (the other members of the committee agreeing), Mr. Abbot undertakes to illustrate the subject under consideration by
a discussion of the case of Lewkovncz v. Queen Aeroplane Co,, decided by the New York Court of Appeals in 1913, and reported in 207 N.Y. 290. The principal part of this Memorandum is as follows:

“By the constitution of this State, adopted by direct vote of the people in 1894, the jurisdiction of the City Court of the city of New York was limited to the sum of $2,000. That is to say, the court was not authorized to render a money judgment for more than that amount, exclusive of interest and costs,

“In response to a considerable popular demand, the legislature of this State by Laws 1911, chapter 569, enacted that the jurisdiction of the court should be enlarged to the sum of $5,000.

“The Court of Appeals in the case cited, held that a judgment for $4,316, or more than $2,000 interest and costs, was void.

“On this state of facts four questions arise. The first is as follows:

“1. Which of these two written enactments, the constitution or the statute, represents the will of the people?

“The constitutional enactment was adopted by a direct vote of the people. It was contained in an instrument which prescribed that the only method of modifying it was by another direct vote of the people. The same instrument established the legislature of the State and conferred upon it certain powers of a legislative character, but it conferred no power to amend or repeal the instrument itself. The real will of the people was, therefore, that the
jurisdiction of the City Court should be limited to $2,000, and that it should not be enlarged beyond that sum save by their personal will again to be manifested by their personal ballots. Consequently, when the legislature undertook to enlarge the jurisdiction of the court by statutory enactment, it was flying in the face of the only authentic expression of the people's will which was then extant. Notwithstanding any change which might have
popular sentiment, the time had not then come when the people wished their new views to be made effective by
any other agency than their own votes.

We have now made a long step forward in understanding our subject. We have learned that in each case in which the constitutionality of a statute is involved, it is the constitution, and not the statute, which represents the will of the people, and that when a court finds a statute unconstitutional, that is, in conflict with the constitution, it is in reality following the people's will, not defying it; enforcing the people's will and not aiding it to be defeated.

“The next question is this:

“2. If the constitution was the only authentic expression of the will of the people, what was the effect of the
statute?

“This question almost answers itself. The legislature of tho State of New York was not vested with power to alter the constitution in any particular. That function the people reserved to themselves, and they declared that it could not be exercised save by their own direct vote. Any attempt therefore by the legislature to repeal or amend the constitution in any particular would be futile. It would have no effect. It would be a blow in the air. It would not be the law, and could never attain the status of a law. When, therefore, the legislature assumed to confer upon the City Court a jurisdiction which was denied to that court by the constitution, its enactment was unavailing. It did not confer an enlarged jurisdiction. Before the statute was enacted, and after the statute was enacted, the jurisdiction remained fixed at the sum of $2,000. In technical language, the statute was a nullity, and the City Court never acquired jurisdiction to enter a judgment in excess of $2,000.

“We are all too prone to forget that in our country the legislature is a body of strictly limited powers. Its jurisdiction is narrowly circumscribed by the written constitutions which are in force in the several States and in the Union as a whole. When, therefore, a legislature attempts to act in excess of its powers, it does not have the authority of the people behind it. It does not express their will, and its act is not the authoritative act of their agent. If the time shall ever come when our people shall repose unlimited confidence in any legislature, and shall wish to confer upon it the power to repeal or modify their own direct enactments, it will be possible for the people to carry out their wish; but they can only do so by removing limitations which they themselves
have imposed. They must set the legislature free by such constitutional provisions as have never yet been adopted or even conceived.

“The third question is this:

“3. Assuming that the statute did not repeal the constitution, what must a court do in a case in which the
statute is involved?

“The people of the State of New York have said that a judgment of the City Court of the City of New York in excess of $2,000 shall not be valid. The legislature of the State of New York, acting in excess of its powers, has said that such a judgment shall be valid. We have seen that this declaration by the legislature was of no effect. It did not enlarge the jurisdiction of the court, no warrant except that statute is necessarily void. Such a judgment will afford protection to nobody who acts under it. If, for example, the sheriff should undertake to levy on the defendant's property in an effort to satisfy it, he would be liable for trespass. His only warrant of authority for taking the defendant’s property would be the judgment, and the execution issued under it, and they would be null and void. So, too, if a suit were brought on the judgment in a foreign state, for example, in the State of New Jersey or in England, and the defendant should by proper plea dispute its validity, the foreign court would be necessarily constrained to acknowledge that it was null and void because entered without jurisdiction, and, therefore, it would refuse to allow it any validity in the foreign territory.

“This duty to regard the judgment as invalid would not be
confined to the sheriff or to the foreign court. It would extend to every person to whom the question should be presented. When, therefore, the Court of Appeals of the State of New York on a direct appeal from such a judgment was confronted with the question whether the judgment was valid, it had no choice. A decision that the judgment was valid would involve an adjudication that the legislature of the State of New York has the power to repeal a constitution which the people of that State have adopted by their direct vote and which they have further declared shall not be repealed save by another direct vote. The court could not render such a decision without violating its judicial oath. Its clear duty, therefore, was to declare the invalidity of the judgment of the City Court.

‘We now come to the fourth and last question:

“4. What was the effect on the statute itself of an adjudication that the jurisdiction of the City Court had not
been enlarged, and that a judgment for $4,316 was void as entered without jurisdiction?

“It is in the answer to this question that most of the confusion which now surrounds the question referred to this committee has taken its origin.

There has been a confused notion that a court in adjudging that a statute is unconstitutional somehow interferes with the powers of a co-ordinate branch of the government, and exercises a nullifying influence upon its acts. This is utterly erroneous. The court does nothing of the kind. It does not veto the enactment. It does not annul the statute. It does not take away any validity or quality that the statute may possess. It does not usurp any
function which does not belong to it. It does not exercise any power that is not judicial. In the routine course of business the Court of Appeals was confronted with the question whether or not a judgment of the City Court was within its jurisdiction. In the fulfillment of its duty, it found that the inquiry was carried back to the ulterior question whether the legislature could repeal the constitution and could confer a jurisdiction which the constitution denied. In announcing a negative answer to this question, the court did no affirmative act. It merely refused to recognize validity in a statute which never had validity. It no more annulled or vetoed an act of the legislature than in the ordinary case it revokes or restricts the authority of an agent when it adjudges that he has acted without authority.

“Now we can see the fundamental misconception which underlies the views of those who are disturbed because a court declares that a statute is unconstitutional. They think that the court has exercised some mysterious function which is not confided to it and which invades the function of another branch of the government. The view is radically erroneous. The man who can, even by inadvertence, use such a phrase as 'the veto power of the court,' "judicial annulment of legislative acts,' ‘judicial power over statutes,' ‘judicial control of the legislature,' convicts himself of ignorance of the rudimentary principles of the matter under discussion. He had not learned even the alphabet of the language which he uses.

“The principle is simple: When a legislature has exceeded its powers, its act has never attained the status of a law. The court in declaring the unconstitutionality of such an act has merely refrained from fictitiously giving it a validity which it never possessed and which the people have denied. The court has done nothing to the act itself."

We have quoted Mr. Abbot's Memorandum at this length because we believe it to be the most perfect modern instance of a naive repetition of Marshall’s original simple argument. Only one question can arise after reading Mr. Abbot’s Memorandum, namely: How is it that the legislature of the State of New York could have passed a law enlarging the jurisdiction of the City Court to $5,000 when the State Constitution expressly limited this jurisdiction to the sum of $2,000? To say that was done “in response to a considerable popular demand” does not seem to meet the situation. In the first place, why should there be a “considerable popular demand" that the legislature should override the constitution, since the matter would seem to be rather unimportant and one in which few except lawyers were likely to be interested. And if, for some mysterious reason, there should be such a popular demand, why should the legislature, consisting mostly of lawyers, have succumbed to it? And further reflection makes this action on the part of people and legislature even more inexplicable. The Constitution of the State of New York, unlike the United States Constitution, is easily amendable, and amendments to it are submitted almost regularly at every election on all kinds of topics, important and unimportant. The legislature could, therefore, have easily satisfied the “considerable popular demand” by submitting the matter as a constitutional amendment in the usual course of business. 

I will break in here to note the legal slight of hand in, on the one hand using "the will of the people" in voting on proposed Constitutional Amendments, of which most voters probably have little to no knowledge as they mark their temporarily believed preferences, yes or no, on a ballot, which is supposed to be all important but, then, the matter of "considerable poplar demand" of the public sufficiently aroused and caring about some issue or another is deemed to make the legislative branch the kind of danger that seems to have made the aristocrats framing the Constitution get the vapors about representative government of, by and for, The People.  This is typical of lawyerly reasoning in matters such as this.  How could what is held to be all important become something to be avoided.  The answer depends, of course, on what the desired outcome of the "justices" and law scholars demands.  Which in itself shows you how dangerous it is.

Especially absurd is an unelected, life-time appointed, impossible to remove group of lawyers who are answerable to no one pretending that they have such concerns about the elected, answerable-to-the-people legislators being the ones who are a danger to the "will of the voters."   That, alone, should expose what a fraud this is.

And the puzzle becomes even more puzzling after we add something to the statement of facts contained in Mr. Abbot’s Memorandum. The statement of facts was simplified by Mr. Abbot by leaving out some data which evidently seemed immaterial to him, but which we consider rather important. One of these is the fact that the law had been held constitutional by the Judge of the City Court before whom it first came up for consideration, and also by the Appellate Term of the Supreme Court, consisting of three judges, before whom the question came up on appeal. Whatever may be said of the members of the legislature as to their likelihood to succumb to “popular demand,” surely no such imputation could be made against the judiciary; for if it could, then our whole structure of constitutional limitations would be toppling over like a house of cards.

It should be added, in this connection, that at least two of the judges who wrote opinions in favor of the constitutionality of this law were eminent jurists. One of them was Mr. Justice Samuel Seabury, afterward himself a member of the Court of Appeals which ultimately held this law to be unconstitutional; and another was Mr. Justice Irving Lehman, now a member of that same Court of Appeals. It may also be noted, in passing, that Mr.
Justice Samuel Seabury is somewhat of a specialist on the subject of the City Court, having written a very learned work about that court, of which he was himself at one time a member. The principal opinion upholding the constitutionality of the law in question, written by Justice Seabury, is a very learned and exhaustive essay on the subject. How is it—one must ask—that these learned Justices overlooked the provision of the Constitution limiting the jurisdiction of the City Court to $2,000? 

I withheld my objections to the typical slamming of medieval logical discourse made by Louis Boudin, I suspect that as learned as he was in his area of expertise, he had little more than the common received prejudices of the college and university credentialed class of his time on which to base his low opinion of it.  While opportunistic lapses of complete consideration, as in Everett V. Abott's burying of inconvenient fact, have occurred throughout the entire history of rational discourse, I don't think the legal thinking of his time or ours would stand well next to a lot of the best medieval discourse in a contest of integrity.  It's certainly the habit of the legal profession.  

We need not enter here upon a discussion of the subject itself, i.e., whether Mr. Justice Seabury and his associates were right in holding the law constitutional, or the Court of Appeals in holding it unconstitutional; although we do not at all mind saying that, for ourselves, we believe that Mr. Justice Seabury had the better of the argument. But that is beside the point. For the purpose of this discussion we are quite willing to assume that Mr. Justice Seabury was wrong and the Court of Appeals right. The real question is: How could there be a difference of opinion on the subject at all?

From Mr. Abbot’s statement of facts, at least, one is obliged to assume that there is no room for any difference of opinion, or anything to argue about. The answer is: That in discussing this subject, one need not take such statements as “the constitution says” or “the constitution provides” too literally. What it actually means is that in the opinion of the writer, usually arrived at after a long and involved process of technical reasoning, or
sentimental declamation, as the case may be, a phrase of the constitution was found to contain, or was tortured into containing, what the writer started out to find in the constitution. By this time, the reader has probably guessed that there is no such express provision in the New York State Constitution as Mr. Abbot’s opening statement of facts would lead an uninitiated layman to assume. The Constitution of the State of New York
does not say, in so many words, “The jurisdiction of the City Court of the City of New York is limited to $2,000.”

We need not inquire further as to the exact tenor of the constitutional provision in question. Suffice it to say that the Legislature of the State of New York, which probably consulted some eminent constitutional lawyers before passing the law in question, thought that there was nothing contradictory between the provisions of the Constitution and the enactment in question. That does not mean that other eminent lawyers could not argue the
other way. We know that ultimately very learned essays were written on both sides of the question. Nor do we need to speculate as to what might have been the result on the constitutionality of the law in question if Judges Seabury and Lehman had been members of the Court of Appeals instead of the Appellate Term when this momentous subject was up for decision.

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. 

I would certainly never underestimate the problem of an out of control legislature and a corrupt executive pose for egalitarian democracy - the closest to an ideal possible in human governments - but, as the Rehnquist and Roberts courts AND EVEN THE OFTEN UNWISE DECISIONS OF THE WARREN COURT show, an unelected, lifetime-appointed, unremovable body of lawyers is not only no less of a danger for egalitarian democracy, equal justice, economic justice, a sustainable and viable environment, etc. is even more dangerous to the lives, the rights and the safety of The People.   

The well known economist John Kenneth Galbraith once warned the American left of the dangers of relying on the judicial branch of the government as a replacement for the hard work of winning elections and making law.  I would suspect he may have, at some point, read Government by Judiciary, for all I know he may have known Louis Boudin in his younger days.  What was dangerous in 1931 has grown in danger since then and it is getting worse very fast.  The court has been the focus of a concerted effort by anti-egalitarians, oligarchs and outright fascists to fill those permanent seats of power, who have given themselves the power to not only break law but to make it, as well.   The Supreme Court is not compatible with even the electoral democracy we're supposed to have, well short of egalitarian democracy.  The struggle for equality and for real democracy has been the history of everything good about the United States and this court is not only trying, they are succeeding in turning us back to an American apartheid state where the rich rule through propaganda and lies.  All three of those courts I named above have played a role in bringing that about, the Warren Court unwittingly, the others by calculation.   Even their good intentions can be dangerous in the long run, if the Court can overturn legitimately made law, they have no problem turning a civil liberties victory of the 1950s and 60s around to serve the white supremacists and oligarchic fascists.  Who is there to stop them or turn them out of office when they do that?