THE ABSURD HABIT of treating the words of "The Founders" and of the mere humans like John Marshall as if they had the status of revealed scripture is one of the most potent sources of inequality, the bestowing of privileges for the rich and powerful and all manner of doing evil as idolatrous law. Or at least pretending to do that while actually further rigging things that way is one of the worst things about allowing lawyers, judges and "justices" to do that and those such as court reporters who are close to them, using obscure language that the common folk can't understand.
I thought as an exercise in cutting through that habit it might be useful to dissect one crucial part of the argument in favor of the extra-Constitutional power of the Court. What John Marshall said to claim it. John Marshall, an extremely wealthy slave owner who became rich through slavery and who never much if ever ruled in a way to produce justice for slaves while always producing, not justice but privilege for himself and his fellow slave owners, including his children.
Early in the passage Louis Boudin used to demonstrate his and James Wilson's reasoning for giving the Supreme Court anti-democratically expansive power over the legislature, Marshall claimed:
That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental, And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
In other words he wanted the Constitution that didn't give him and the Court the powers but which he was claiming for it, to not be easily changed. And that has, in fact been the case. The Constitution has seldom been changed to meet the dangers that were found to exist within the original as the "Founders" wrote it.
Or, not. He certainly changed it easily and quickly enough with his ruling by fiat, granting the Court powers not contained in the text of it. Supreme Courts, using that power, have changed it in meaning by fiat far more rapidly than it was ever changed by the clunky "democratic" means of doing it by votes by congresses and state legislatures. Courts have not been uniformly hesitant to change it from what previous Courts have deemed it to mean, the present day Roberts, Republican-fascist Court, perhaps the most promiscuous in that of them all.
While that power claimed by Marshall was only exercised by the Court once before the 1850s in the ruling he said that in, the next time was one of the worst examples of Supreme Court evil, the Dred Scott decision that declared the Constitution excluded Black People from the status of personhood and that they had no rights. As Louis Boudin noted in 1931 that power to override duly enacted laws by a body elected by the voters living at the time has, after Dred Scott, been used by the Court frequently.
That is a remarkable claim made by John Marshall, that a Constitution written by men who would eventually die - men whose role at the original Constitutional Convention was not exactly a product of a democratically sound vote - and that it should govern people in decades and centuries after whoever chose those who wrote the thing died, should still rule people born decades and centuries after they died was consistent with his claim of the legitimacy of the Constitution.
His claim of the source of the legitimacy of the Constitution and, indeed, of all laws, the determination of The People as to what is best for them, was a lie when he said it.
That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.
The many people who weren't at that Convention and the minority of white men of property who elected them certainly weren't the ones establishing the form of government that was imposed on them. Women, Black People (except in a few of the states) the Native Americans, white men too poor to own property were all excluded so "the people" establishing "for their future government" what he was basing his claims on and so what was produced could rightly be suspected to be rigged to not "conduce to" their happiness. So his claimed basis of and so legitimacy of "the whole American fabric" was a blatant lie.
The importance of the consequences of that lie may not have mattered one bit to Marshall, the rest of his colleagues on the Court, or any of the other white men of property whose opinions mattered in the law and governmental affairs but they certainly mattered more and more in the coming decades as the Abolition and Women's Suffrage movements noticed the discrepancies in the United States Constitution and the laws made under it. It mattered to anyone who was denied justice under it, the declaration that the deified Founders had spoken in Philadelphia in 1787 is the same answer that those who were privileged by the body of rich, white men who wrote it give today, that that doesn't matter, Madison, Hamilton and Jay had spoken, or that Marshall or some other long dead rich, white man had is no answer at all.
The claim that Marshall made was based on a lie and that lie benefited slave owners, financiers and speculators (such as James Wilson) and others who are regularly granted protection and enhancement of their privileges under the Constitution and the Court. And most of the history of the Supreme Court given such powers BY THE COURT has mostly, with a few notable but hardly adequate exceptions, maintained that status quo that Marshall claimed shouldn't be changed but be permanent.
Perhaps, given the present partisan Republican-fascist Court, I should note that Marshall's decision FAVORED HIS OWN PARTY. He was the leader of the Federalist Party in Virginia.
Are we better off than the Brits whose "constitution" is unwritten? I don't know, I do know that there is no body of men, especially men of a privileged class who have ever been trustworthy enough to write a fixed body of laws that should govern people born centuries after they died and even those who were not privileged during the lifetimes of such "founders." That would be true of those who promulgated an unwritten Constitution whose meaning is held to be fixed as well, the business of coming up with "unchanging laws" is one that no one should hold as above suspicion because it is so prone to corruption. The corruption created through the powers that Marshall claimed for his Court have been as bad and often worse than any corruption that has come from the Congress, only it is far harder to overturn and correct it, especially because of other corruptions embedded in the Constitution, including the nearly impossible to achieve amendment of the damned thing to fix its worst features. Due to the lies told by the likes of Phillis Shaffley we don't after more than two centuries even have an amendment encoding within it the equality of Women, nor real protections for other oppressed groups of People.
The wisdom of the "justices" of the Supreme Court even when their motives are not evil is of a rather dubious nature. Leonard Boudin, the nephew of Louis Boudin said in 1971,
The Warren Court marked a high point in this nation living up to its Constitution; right now we are marking a low point. The Government nurtures contempt for the individual in court with all these so‐called conspiracy cases. There is no normality in the executive branch and the very people who proclaim law and order are the most lawless of all. Vietnam, preventive detention and wiretapping will do for a start. But I still look to the courts as the last bastion, like some of the courts in the South during the civil rights period, which went against the local pressures to insure the individual's rights.
I wonder what he'd have said about things today when a lot of the product of the Warren Court has made things far worse, I haven't had a lot of time to look into it but the relationship of its Ker vs California decision and the deadly use of "no-knock warrants" in police murders of, especially, Black People, as extended by later courts, certainly looks like depending on the wisdom of the Court during the Warren years is unwarranted.
Their "free speech" rulings have been one of the foremost vehicles in propagandizing us into the most dangerous danger of electoral democracy, a president who was openly a puppet of a foreign despot, etc. is something I've gone over so many times. There is a direct line from the Warren "free speech-press" rulings to Buckley vs. Valeo, Citizens United, etc. What opened us up for rule by billionaires foreign and domestic through them lying in the mass media.
The Court has not been a source of far seeing wisdom any more than it has been of justice. Both are a very occasional occasion in the history of the Supreme Court, those occasions constructed into a lying orthodoxy of fake piety and, so obedience by a gulled population. The vaunted Warren Court only the least of the bad of it. We should grow up and face the awful truth about the Court and the Constitution, that what was rigged to give some measure of rights to affluent white men who were not part of the actual ruling class are often the means of the affluent, now, oppressing a majority of The People.
I would, on a whole, say the Supreme Court's gutting of the Voting Rights Act should be held to have killed off this entire myth started by Wilson and Marshall because with it and similar rulings, actions and inactions attacking the right of ALL OF THE PEOPLE to have a vote in electing a non-rigged representation on the federal, state and local levels show what a danger it is to the existence of a legitimate government of, by and FOR THE PEOPLE. If Marshall's claim for the legitimacy of the government is thwarted by the Supreme Court using the language of the Constitution (and their own past rulings when those are convenient) then his claims for the court as the protector of that is a sham and a lie, as it certainly was during his term as Chief Justice for Black People.
What may have been tolerable for affluent white people, especially wealthy white men, the Ivy League class of people is not tolerable anymore. There is every reason to finally say that the Court doesn't get to do that because it has exposed the lie that Marshall told by its actions.
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