if the makers of that instrument really foresaw what they were doing

 if the makers of that instrument really foresaw what they were doing, and the consequences involved, and yet left such questions to be determined as they have done, with no provision for what might occur while the legislation was undisputed, anything more unfinished than their work can be scarcely mentioned

Richard C. McMurtrie

CONCLUDING THE FIRST chapter of Government by Judiciary,  Louis Boudin did a little tidying up of things before he continued.   He showed in this chapter that there were various excuses for and definitions of what has turned into government under the direct rule of the Supreme Court, overturning, at will, democratic and even republican governance.  The excuse that it was necessary to a written Constitution for them to have some power in that direction, as argued by James Wilson (and others from the Constitutional Convention, BUT NOT BY ALL OF THEM), morphed into what is conventionally asserted and incorrectly universally believed were those powers claimed by John Marshall and his colleagues in Marbury vs Madison, which further changed with ever more frequent and ever more expansive powers which, by the time of the Legal Tender cases, meant no more or less than the Constitution - when that was resorted to by the "justices" - meant only what a majority on the Court deemed it to mean for any particular ruling,  that governing Court majority having no more fidelity to the previous rulings of the Court declaration of what the Constitution said than they did the document, its legislative history or its supposedly fixed meaning as established by lower court judges - some of them certainly better and more honest scholars of the law than some of the sitting "justices" - or by their colleagues on earlier Supreme Courts.

That the Legal Tender Acts under which we have been unfortunately living now for some sixty-five years were absolutely unconstitutional as well as unwise, unjust, and oppressive, has been asserted not only by the great judges who constituted the majority of the United States Supreme Court in the first Legal Tender case, but also by other wise and great men. For the ghost of those acts will not down; and there are some learned constitutional lawyers who still believe that those acts were unconstitutional—even though officially, we must, as good patriots, consider them constitutional.

And it is interesting to note in this connection that it was the decision in the last of the Legal Tender cases that gave rise to the early works making the beginning of the modern literature on the subject of the Judicial Power. It happened in this way: After the decision in the last of these cases (Juilliard v. Greenman, 110 U.S. 421) was rendered in 1884, declaring legal tender laws constitutional both in peace and war, George Bancroft, the
great historian of the United States, as well as of the Constitution of the United States, wrote a pamphlet under the title The Constitution Wounded in the House of Its Guardians,  in which he roundly scored that august tribunal for its decision, and predicted untold evils to the country and to our institutions as the result of the complicity of the judiciary in foisting upon the country this dishonest, oppressive, and unconstitutional legislation, Mr. Richard C. McMurtrie, a famous lawyer of that day, replied in a pamphlet entitled A Plea for the Supreme Court: Observations on Mr. George Bancrofts Plea for the Constitution, in which he defended the United States Supreme Court against the great historian's attacks. In his defense of the Supreme Court in its final decision on the legal tender question, Mr. McMurtrie declared himself whole-heartedly in favor of the right of the judiciary to declare laws unconstitutional, but defended this right in a manner which seriously threatened that power as it was then beginning to shape itself. 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. 

I will break in here to, again, note that among those who hold themselves up as the biggest, fattest "originalists, textualists, founding-father-fudamentalist"  "balls-and-strikes-umpire" pretending scholars of the Constitution and its alleged meaning are also the ones who found such extra-Constitutional powers that made presidents (of their own party) into kings and tyrants under unitary executive theory.   That isn't shocking in the least since their professional lives are spent in the make-believe of such "originalism" and, especially, "textualism" as created this Court power and, unadmittedly or unreflectingly expanded it out of any possible interpretation of the stated intentions of even the most supportive of the Founders generation, such as Wilson and Hamilton.  That "stench" that Justice Sotomayor startled the cultured and delicate Court watchers by admitting she smelled has only grown in strength.  It's been there from at least Marbury vs Madison, though I'm sure it was there earlier.  And not just in instances in which such powers were claimed by John Marshall and his colleagues but pervades such things as the slavery decisions of his and other courts.  

I'm not cultured or delicate or a lawyer who might hope to remain respectable and work in the courts and I don't mind calling shit "shit" and noting it stinks.

In the course of his Observations Mr. McMurtrie said:

“Let me ask, whence is derived this power that we are now discussing, that of declaring void a legislative act? ... Is there any such grant in the constitution, or any allusion to it? Since C. J. Marshalls judgment in Marbury v. Madison, I should have said, but for the facts contradicting me, that no one probably has been able to question that the power does not exist, and that it was created by the Constitution. But it is a mere deduction of logic. Impossible (to my apprehension) for a sane mind to question, but still derived by tacit implication, a process which one of the most conspicuous members of the Convention assured the most important of the communities that enacted the instrument, could not be a ground for asserting a grant. 

“It is certainly true that before the adoption of the constitution Mr. Hamilton asserted this power was placed with the Court, but he limited it to the determination of the extent of the powers granted by the instrument; and if the makers of that instrument really foresaw what they were doing, and the consequences involved, and yet left such questions to be determined as they have done, with no provision for what might occur while the legislation was undisputed, anything more unfinished than their work can be scarcely mentioned. But intended or not, is it not a power that is to be ascertained to exist by reasoning and reasoning only? Why is the judiciary the only branch of government, whose views as to the powers they possess by the grant, are to be regarded? If this be not implication and inference, and the exact converse of an express grant, I am at a loss for a meaning to these words.

“Therefore it seems to me plain that as it has been demonstrated for seventy years, and acquiesced in by all, that one of the most important functions of the government, nothing less than a control over legislatures, executives and the sovereignties which formed the United States, has been created and lodged by inference, and by inference only, in one branch of that government, uncontrollable by the united powers of the imperial state and of the states which constituted the imperium, and this has been done without any reference to the subject in the Constitution, and probably as to one branch of the subject (the right to determine the illegality of state legislation), without any person concerned in the matter, seeing that it had been done, is it impossible that other high powers may be found to have been similarly granted?''

This certainly did not fit in with the new conception of the Judicial Power which the Supreme Court had unsuccessfully attempted to exercise in the Legal Tender cases, and which it did successfully exercise in the Civil Rights cases, and which was destined to make it that “supreme authority” in the United States Government of which Judge Baldwin speaks, and which it undoubtedly is today. It was therefore up to the advocates of that
power to abandon Marshall's logic as their main reliance, and to look elsewhere for new foundations for the new Judicial Power. In response to this urgent demand for new props for the Judicial Power, Mr. Brinton Coxe, a noted lawyer and scholar, undertook to prove that Mr. McMurtrie was wrong in asserting that the Judicial Power rested merely on inference, and to demonstrate the existence of an express grant of that power in the United States Constitution, notwithstanding the fact that neither Marshall nor any of his successors had ever claimed any such express grant. Unfortunately, Mr. Coxe did not live long enough to write his treatise, which was to be entitled An Essay on Judicial Power and Unconstitutional Legislation but he did write what he called an Historical Introduction to the contemplated work. This was published posthumously (Philadelphia, 1893) under the above title. Historical Introduction is in itself a substantial volume; and it is, to our mind, the only work of genuine scholarship produced by the supporters of the Judicial Power. We shall have occasion to discuss it at considerable length in the following pages. In the meantime we must turn our attention to another problem. 

I'm not certain, off hand, which cases Boudin meant as "the Civil Rights Cases," though I wouldn't be surprised that if those dealt with minority rights, that the Court and such as those who brought business to them would think there was much in the way of pressing necessity in doing justice to mere humans when more important issues surrounding money and wealth and the accumulations of it by the wealthy clamored for their attention.  

I'm tempted to skip much of the discussion of these works, especially the last one.  They go into enormous detail over the matter of the alleged evils of governments being permitted to issue paper money, something which, a few really crack-pot level gold-bugs, excepted, we all accept with, up to fairly recently, less in the way of economic catastrophe than the metal-coinage years of such asserted virtue.   I will remind you that James Wilson, associate member of the Supreme Court who spent time as a member of the court in a debtor's prison, managed to get himself in trouble over land speculation, borrowing and an economic crisis in 1796.  Yet such concerns are as much a part of the Court and its weather-vane discernment of the true meaning of The Constitution, such as we are seeing in a really big way as the Roberts Court turns previously decided law on its head. 

I wish those idiots who wrote the Constitution had taken a little more time with the next-to-impossible matter of amending their work because in a lot of places their work turns out to really suck.