For, once you admit that the power exists, there is no limit upon it except the will of those who wield it. And no one who reads the Dred Scott Case can have the hardihood to say that those who wield this power are seriously bound by the true meaning of the Constitution, or of their own powers thereunder.

IN TRYING TO MAKE THIS EASIER on anyone reading this series on the corrupt origin of the Supreme Court invented power for it to nullify duly adopted laws of the Congress and to, in fact, amend the Constitution by a simple majority of the unelected, lifetime appointed members of that Court - usurping the role of the Congress, the president and a super-majority of state legislatures in that five or six or seven or even eight "justices" whim, I've been dreading either posting this entire passage or trying to break it up into smaller bites, so as to make it easier to digest.  But I can't do that because you have to get the whole thing at once to appreciate just how corrupt was and is the Dred Scott decision and its most lasting effect which was never nullified by the Civil War or the subsequent Amendments to the Constitution, for the Court to do what it did so corruptly in the declaration that the Missouri Compromise was unconstitutional. 

The reason that this passage is all important to understanding why this is so important is given by Louis Boudin in the last paragraph I'm posting today so I'll put it first and last.

Thus we come to the conclusion that the very first time when the United States Supreme Court actually used its power to declare a law of Congress unconstitutional in a manner to make a difference to the people of the United States, it did so by a sheer act of usurpation, even according to the official and orthodox theory of judicial review as expounded by its official interpreters.  And this is more than merely an interesting historical fact.  It exhibits the true nature of the power - its dangerous character as a political institution.  For, once you admit that the power exists, there is no limit upon it except the will of those who wield it.  And no one who reads the Dred Scott Case can have the hardihood to say that those who wield this power are seriously bound by the true meaning of the Constitution, or of their own powers thereunder.  It is this that is our excuse for considering this case at such great length.  It is not merely a wrong decision.  It was a revolution. 

When the Roberts Court nullifies one of the most important laws ever passed by the Congress, one which more than one commentator has said is, in fact, the origin of the modern United States as an actual, egalitarian electoral democracy, the Voting Rights Act, resetting the rules in favor of American apartheid, Jim Crow, white supremacy and, as we can expect, a large range if not all of what those made the law of the land, it is certainly a Republican-fascist revolution that may well lead us into the most corrupt period we have yet seen under the United States Constitution which, in fact, including those sacred Civil War Amendments was found by courts and state legislatures, Congresses (especially Senates) to be entirely compatible with all of those evils and many others which the Roberts Court with its six Federalist Society members will, no doubt find linguistic inventions to innovate.  No doubt they will be rubber stamping many of those legal frameworks that come out of neo-fascist legal groups and law faculty members in the coming weeks to years.

The criticism of the profession against the decision of the majority follows in the main the point made by Judge Curtis in the conclusion that the Federal courts have no jurisdiction in the matter,  it had no right to proceed further and to consider the case upon the merits.  As we have already said, we consider this argument unanswerable.  But the point thus made does not cover the entire ground.  As we view it,  the Court had no right to declare the Missouri Compromise Act Unconstitutional even after a consideration of the case upon the merits.  Not even on the supposition that the merits of the case were gone into for the purpose of finding additional grounds in support of the contention that the Federal courts have no jurisdiction.

In the first place, under the theory of judicial review as laid down by the Supreme Court and re-affirmed by Mr. John W. Davis as the official spokesman of the legal profession, the Court can have no power to declare a law of Congress unconstitutional while in quest of an additional ground in support of a decision which can be rendered without it.  For clearly no litigant stands at the bar of the court crying for additional grounds for the judgement which the court is going to give anyway.  Nobody's rights can possibly be affected by the question whether the decision is correct on one or two grounds.  An additional ground cannot, of course, make any difference in the judgement.  And it is only where it would make a difference in the judgement of that a court has the power to look into the constitutionality of any legislation, under the accepted, official, and orthodox theory of the Judicial Power, as laid down by that Power itself.  There clearly is no necessity for more than one good reason to support any judgment.,

But let us assume for the purpose of the argument that the Court had never discussed the question of citizenship as raised in the plea of abatement.  Or that, having discussed it, it had come to the opposite conclusion, namely, that free Negroes were citizens,  and that the question of Scott's citizenship therefore depended on whether or not he was in fact free.  What then?

The additional ground which the court found in the course of its discussion of the case upon the merits for the dismissal for want of jurisdiction instead of affirmance was the result of the conclusion reached at the end of the case, that Dred Scott was still a slave.  It is this conclusion which is supposed to have justified the consideration of the case upon the merits in question of additional ground for dismissal.  But while it is true that that conclusion required the examination of the question whether or not Dred Scott was a slave, it is not true that it depended upon the declaration of the Missouri Compromise Act unconstitutional.

The lower court had in fact reached the same conclusion without having considered the question of the Missouri Compromise.  And so had Judge Nelson.  And the court must ultimately fall back upon the ground assigned by the court below and adopted by Judge Nelson - in order to save its own decision.

For if the majority of the court had not done so, the decision in the case on the merits would have had to be different - at least as to Dred Scott himself.  But once resort is had to the Missouri law as interpreted by the lower court for determining the plaintiff's status we have our "additional ground" without considering the Missouri Compromise Act even for the purpose of the "additional ground."

And here is where the question of the order in which the points were considered by the court becomes material - indeed, decisive.  As we have already pointed out, the question of the effect of the Missouri law should have been considered, in the natural order of the case, before the Court ever came to the consideration of the effect of Scott's residence at Fort Snelling.  If, therefore, the Court had followed the natural and logical order of the development of the case, it would have obtained the additional ground without ever touching on the question of the Missouri Compromise Act.  It is only by discussion the questions out of the natural and logical order that the Court managed to discuss the Missouri Compromise Act before discussing the effect of the Missouri law upon either Dred Scott or his family.

Furthermore, the logical order of the case was not the only reason why the question of the effect of the Missouri law upon Scott and his family should have been considered first - that was required also by the very judgment which was under consideration.  The first thing that the Supreme Court was called upon to do, after it had determined to consider the case upon the merits, was to consider the question whether the decision of the court below was right.  That naturally brought up the reason assigned for its judgment by the court below.  That reason, as we have seen, was that the Missouri law made Dred Scott and his family slaves upon their return to Missouri, irrespective of the effect of their sojourn in free territory.  The Supreme Court was therefore bound to consider the reason thus assigned before considering anything else in the case.  And having come to the conclusion, as they say they have,  that the Missouri law had the effect claimed of it by the lower court,  Chief Justice Taney and the majority already had in their hands both reasons which they assigned for the dismissal.

And after they had come to that conclusion,  there was not only no necessity to consider the Missouri Compromise Act, but the Missouri Compromise Act and the question of its constitutionality became absolutely immaterial.  There was, then, no possible view in which a consideration of the constitutionality of that Act could affect the case in any shape, form of manner.  

The declaration of the Missouri Compromise Act unconstitutional was therefore clearly a sheer act of usurpation of political power even under the official and orthodox doctrine of judicial review.

Thus we come to the conclusion that the very first time when the United States Supreme Court actually used its power to declare a law of Congress unconstitutional in a manner to make a difference to the people of the United States, it did so by a sheer act of usurpation, even according to the official and orthodox theory of judicial review as expounded by its official interpreters.  And this is more than merely an interesting historical fact.  It exhibits the true nature of the power - its dangerous character as a political institution.  For, once you admit that the power exists, there is no limit upon it except the  will of those who wield it.  And no one who reads the Dred Scott Case can have the hardihood to say that those who wield this power are seriously bound by the true meaning of the Constitution, or of their own powers thereunder.  It is this that is our excuse for considering this case at such great length.  It is not merely a wrong decision.  It was a revolution.

I think it is very likely that if the Taney majority had not had the Civil War result, in no small part, from their decision which they imagined would restore the kind of "national peace and harmony" that they claimed was their goal, they would have used that nullification to prevent any future attempt by Congresses to abolish or even limit slavery, no doubt they would have extended their powers to the extent they could, going ever father because, as Boudin notes, there was no limit to what the Court would do with it. 

As we have seen in the enabling of the corruption of our politics with the First Amendment, the use of other passages and amendments to the Constitution for clearly contradictory purposes, often lying about the actual and clear intent of those whose intent they claim to base their rulings on, that is already the status quo under the Supreme Court using that usurped and invented power found nowhere in the Constitution.