THIS TIME IT'S NECESSARY to go back two paragraphs in order to make the meaning of the next passage clear, you can review the entire post to see what Louis Boudin so well demonstrates, that not only the extra-constitutional power given by the Supreme Court to nullify laws passed by Congress by a simple majority vote is not part of the Constitution it is claimed to uphold, its meaning has been gradually expanded by subsequent decades of Supreme Court claims of power and altered so much that its very basis has changed from what John Marshall originally claimed it to be.
Not only is the Judicial Power here described an entirely different governmental institution from the Judicial Power envisaged by James Wilson and John Marshall, but it rests upon an entirely different governmental theory. The Judicial Power as understood by Wilson and Marshall was based on the theory of the separation of powers—the distribution of the powers of government among three co-equal departments; while the modern Judicial Power as expounded by Baldwin and Haines, and as actually exercised by our Judiciary, is based on the theory of the centralization of the powers of government in the Judiciary, which is thereby made the supreme political power in the nation.
And the theory of the separation of powers is not the only one abandoned by the modern supporters of the Judicial Power. There is a tendency also to abandon the written basis of the power and to substitute for it a sort of Judicial Prerogative, claimed to be inherent in the office itself, independent of any written constitution either as a source or measure of the power. According to this theory, the judiciary is the repository of a higher law, of which the conscience of the judge is the only evidence and sole measure, which requires and enables him to declare “unconstitutional,” and therefore null and void, any law which conflicts with that higher
law as understood by him.
This new development in our constitutional law is based upon two historical theories, one appertaining to England, and one to the United States. In so far as England is concerned this historical theory consists in the assertion that English judges claimed, and for a long time possessed, the power to declare a law null and void for unreasonableness,” or because it did not square with the dictates of equity and justice as understood by the judges. The American exponents of this supposedly English constitutional theory claim Lord Coke as its chief sponsor in that country. And as a warrant for its incorporation into American constitutional law, it is supplemented by a rather novel, not to say startling, theory of the American Revolution. It is nothing less than the assertion that the American Revolution was but a lawyers’ revolution, designed to revive and perpetuate in America Lord Coke’s doctrine of Judicial Power, which seems to have fallen upon evil days in England just about that time.
I will break in to note that even in England, Coke's declaration in the Dr. Bonham Case that this theory of judicial supremacy is based in was not clear. It was seen by some to mean no more than that the judiciary had the privilege of interpreting the meaning of acts of Parliament, others claimed it meant that the judiciary could overturn acts of Parliament. And it wasn't acted on in England the way it has become established in the United States.
Why a democratic Republic which had broken with England, which was developing a system of universal white male suffrage at a far faster rate than Britain (by that time) was adopting a judicial position that gave absolute powers to an unelected body of lawyers, one which by the time the claims below were made was on the eve of the major expansions of voting rights to start to approximate an actual democracy, is worth considering. Who was this innovation in judicial power meant to enable. The answer to that is best seen in how the Supreme Court used it and who benefited, not based on individual "landmarks" but on balance.
As may be surmised, the principal exponents of this novel theory of the American Revolution are lawyers. It first took definite form in the report of a special committee appointed by the New York State Bar Association to investigate our subject. The New York State Bar Association is the greatest body of lawyers in this country, and comprises in its membership most of our great constitutional lawyers. This special committee naturally consisted of very eminent and very learned lawyers, as befitted the organization which it represented and the importance of the subject which it was to investigate. The committee’s labors were long and arduous, and its report detailed and exhaustive. It was delivered in three sections—to three annual conventions of the Association, held, respectively, in the years 1915, 1916 and 1917. Needless to say, it finds the Judicial Power well-founded upon legal, logical, and historical grounds. We shall have occasion to advert again to this report, and to discuss some of its assertions in detail. Here we shall refer only to its main thesis, announced in the beginning of its first section and adhered to throughout—the lawyers’ theory of the American Revolution. This theory is thus stated on page 11 of this committee’s report for 1915:
“In short the American Revolution was a lawyers’ revolution to enforce Lord Coke’s theory of the invalidity of Acts of Parliament in derogation of common right and of the rights of Englishmen.”
And on page 15 of the same report the committee reiterates this assertion in the following language:
“The American Revolution was a Lawyers’ Revolution to enforce the principle laid down in Lord Coke’s, Lord Hobart’s, and Lord Holt’s decisions that acts of parliament against common right or in violation of the natural liberties of Englishmen were void.”
The thing to be remembered is that in Lord Coke’s theory— whatever it was—neither the source of the judicial power nor its measure was based on any written constitution. The power was inherent in the office, and in its nature superior to the legislature. The overriding of the will of the legislature was not done ex necessitate, because of the compelling force of a written constitution superior to both legislature and judge, but by the requirements of right and justice as dictated to the judge by his conscience.
One thing is clear from a comparison of the arguments of the original exponents of the Judicial Power and their modern followers: Whatever the arguments whereby it is supported, the thing itself has undergone such radical change in the course of our history that it would probably not be recognized either by its original advocates or by the great Chief Justice who is supposed to have been its actual founder.
It will be necessary, therefore, not only to re-examine the various arguments adduced in support of the Judicial Power, but also to follow its growth historically from the time of its birth, when the judiciary was very properly described as the weakest of the governmental departments, to our own days of avowed Judicial Supremacy, when one of its great exponents frankly describes it as that part of our governmental system which is “invested with acknowledged and supreme authority,” and when the government of our country may be properly called a “Government by Judiciary.”
Another thing this does is render all of the civic pieties about government of, by and for The People, representative democracy, the supremacy of the Voters who are represented by those they elect, etc. a pious and empty lie.
Government by judiciary, which we do have, means that whoever is on the court will
- Decide if laws passed by the legislature and signed into law will get to be the law.
- Decide what the meaning of laws they deign to allow to become law is - replacing their own thinking and preferences for those of a far larger, ELECTED body who have far more stringent requirements for making their actions have legal effect.
- Will be able to create law based on a simple majority which, by nothing more than custom and tradition and expectation, will become the law of the land and is required to be enforced by the executive and even, I'd assert, ruling the Congress.
Considering the nature of how Supreme Courts are staffed, by the choice of the president with the anti-democratically constituted Senate (especially under Repulbican-fascist court capture strategies) confirming or rejecting those nominations, the power that Supreme Courts have taken for themselves is almost a guarantee of oligarchic governance. It is controversial that President Biden might choose someone who is not a product of one of the elite Ivy or Ivy equivalent law schools which have provided most of the Supreme Court "justices" in our history who have been the most backward and most anti-democratic branch of the government - the Warren Court and its quickly diminishing influence being a singular exception, at least in part as Leonard Boudin claimed as posted here last week. And, since they are laws to themselves, individually as well as collectively, the individual "justices" have no restraints on corruptly colluding with, consulting with, carousing with and benefiting from those who have business in front of the Court. We have one of the most flagrantly corrupt Courts in the history of that sordid body, right now thanks in no small part to this theory of judicial supremacy.
In the Rehnquist Court we saw such Government by Judiciary in which five conservative Republican members of the Court, working in concert with Jeb Bush's Republican administration in Florida, the brother of the Republican nominee, decide the result of an election installing George W. Bush in office though he lost the popular vote. Yet we have become so accustomed to government by judiciary that it was universally held, by the establishment, the "free press" the pundit class, even the man cheated of the victory he had won, that the court had spoken we must all acquiesce.
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