and in their effects upon each are equivalent to an alteration of the Constitution, by inserting new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now

IN CONTINUING ON with the illegitimate, outrageous and still continuing usurpation of power by the Supreme Court which the Roberts Court is using to send the country back to the worst days of American apartheid,  Boudin shows that the actual power grab was not unremarked on and unopposed by some of the most reputable lawyers of the time, including one whose view of the decision had something the Supreme Court power grab never has had, an indication that a majority of voters agreed with that view of it, Lincoln whose election as one of our greatest presidents was attributable to the opposition to the Dred Scott decision.   No Supreme Court "justice" who has used that usurped power can make that claim that they hold their position as a result of the vote of what is pretended they consider the highest authority in government, when they aren't asserting that greatest power is, by action and as a presupposition to that action, though never in honest declaration, themselves.   The Roberts Court has demonstrated that to within that mathematical proof in their demolition of the Voting Rights Act.  I'm going over some material I covered in a footnote earlier in this series because I think what Thomas Hart Benton said deserves to be read again.

It should also be noted here that the Dred Scott Case was not only of a revolutionary character with respect to the relation of the Federal Judiciary to the Legislative Department of the Federal Government, but that in destroying the Missouri Compromise Act Chief Justice Taney employed as his lever a revolutionary conception of the Due Process clause which was used by his successors as a means to revolutionize the relations of the Federal Government to the state governments, as we will show when we come to discuss the Fourteenth Amendment.

The great excitement caused by the Dred Scott decision is well known to all students of American History.  The word "excitement" is hardly adequate;  the word "rebellion" rather more adequately expresses the public sentiment in the North.  Its results are equally well-known, although historians are still debating whether or not Dred Scott actually brought on the Civil War.

Mr. Warren, in his [work] "Supreme Court" says that the decision in the Dred Scott Case elected Lincoln, and the election of Lincoln brought about the Civil War.

The decision was attacked from many angles:  For the sentiments expressed, or supposed to have been expressed, by the Chief Justice and other members of the majority;  for its false history, or alleged false history,  for its bad law, which it was claimed was  at variance with the court's own decisions on many points.  Subsequent decisions of the United States Supreme Court have undoubtedly shown the Dred Scott decision to have been wrong on many points.  The important thing, however, from our point of view, is not so much the revolt of public opinion against the court for having rendered such a decision, as the attitude of the leading statesmen of the time to the decision as a rule of action binding upon the Congress and the Executive Department of the Government.  In this connection we are not interested so much in the opinion of those who denied the obligatory force of the decision because it was obiter dictum, as in the opinion of those who denied its validity as an exposition of the Constitution obligatory on the other departments of the government because of the theory of government which it presupposed.  And there can be no doubt that many of the leading statesmen of the time - men whose eminence as lawyers was unquestioned, and whose fame as statesmen has gone down in the pages of American history - have taken the latter position, thus showing that the Judicial Power as we understand it   now had not yet become firmly established.

One of the eminent jurists and statesmen of the time who refused to recognize the authority of the Judiciary as an exclusive exponent of the Constitution was Thomas H. Benton, the Great Missouri statesman whose eminence during the Middle Period was excelled by three men only:  Daniel Webster, Henry Clay, and John C. Calhoun -not counting General Jackson, who was in a class by himself.  Benton's opinion on this subject is particularly important since he had the honor of being seriously considered as successor to Chief Justice Marshall, thus being classed with Daniel Webster and Henry Clay as a statesman-jurist.  In fact, it is believed that it was due to his own disinclination to accept the position that he was not actually named to the position which Marshall vacated and Taney filled. (Warren, "Supreme Court," II 265)

Benton was now at the close of his distinguished career, and his pronounciamento on the Dred Scott decision may well be considered his last public act - in the nature of a political testament.  It should also be remembered, in this connection, that Benton was himself a Southerner, coming from the slave-State Missouri, and a Democrat, although an anti-slavery Democrat.  Benton's pronunciamento on the Dred Scott to took the form of a volume about two hundred pages long, published late in 1857 under the somewhat cumbersome title of Historical and Legal Examination of that Part of the Decision of the Supreme Court of the United States in the Dred Scott case which Declares the Unconstitutionality of the Missouri Compromise Act and the Self-Extention of the Constitution to Territories Carrying Slavery with It. (N.Y, D. Appleton Col, 1858)

The body of this work is naturally devoted to a detailed examination of the constitutionality of the Missouri Compromise Act, but the introductory chapter is devoted to the author's general position on the subject, including his attitude towards the Judicial Power.  Indeed, this attitude, fundamental in the entire discussion, appears in the very opening paragraph of the Introduction which reads as follows:

" The title is an index of the character of this Examination, which only goes to the two points mentioned;  and goes to them because they are held to be political, affecting Congress in its legislative capacity, and on which the Supreme Court has no right to bind or control that body;  as heretofore seen in the case of the Bank of the United States, the Section Law, &c.;  cases in which Congress followed its own opinoin of its own powers, regardless of the Court's decision."

Benton then proceeds as follows:

"Congress holds its powers from the Constitution . . . The duty of the member - his allegiance - his fealty - is to the
Constitution;  and in performance of this duty - in the discharge of this allegiance - in the keeping of this fealty - he must be governed by the words of the instrument and by the dictates of his conscience.  . . And here it otherwise - was Congress to look to judicial interpretation of its powers - it would soon cease to have any fixed rules to go by:  and the Constitution itself, like the Holy Scriptures, in the hands of councils and commentators, would soon cease to be what its framers made it.  . . .

"In assuming to decide these questions, - (Constitutionality of the Missouri Compromise, and the self-extension of the Constitution to Territories,)- it is believed the Court committed two great errors:  First, in the assumption to try such questions;  secondly, in deciding them as they did.  And it is certain that the decisions are contrary to the uniform action of all the departments of the government - one of them for thirty-six years;  and the other for seventy years;  and in their effects upon each are equivalent to an alteration of the Constitution, by inserting new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now . . . .

"Far from settling the question , the opinion itself has become a new question more violent than the former!"

Benton closes this Introduction with these words:

"I object to the Court's opinion, not only because it was without jurisdiction , and wrong in itself, but because it was political pertaining to the policy, or civil government of the Union - interfering with the administration of the affairs of the State."  

This was also Lincoln's opinion on the subject. And it may be said it was probably the position of most of the leading lawyers of the North at that time; the Southern lawyers either having changed their views on the subject under the stress of necessity arising from the Slavery problem, or keeping their opinions to themselves because of the agitation of that problem.  And it may be said without fear of contradiction that before the Slavery problem became acute Benton's point of view was more popular with Southern statesmen than those of the North. 

The things that the Taney Court overturned, though they had been settled law for thirty-six and seventy years, of course calls to mind the laws the Roberts Court has overturned, the Voting Rights Act and Roe v. Wade - the second one is especially interesting because in their sleazy inaction around the Texas bounty on those helping a woman obtain an abortion permits a state to violate the then still standing Supreme Court made law, no doubt an all too temporary act of judicial dis-empowerment.  Both of them provide a solid case in why it's dangerous to allow the Court to nullify duly adopted federal law and to re-write the Constitution.  The fragility of Supreme Court made law, such as the universally mentioned Brown v Board,  in the hands of a future, malignant court such as we have now, proves that allowing that power on the basis of such allegedly settled benevolent Supreme Court law is a delusion. 

We, of course, accustomed to that usurped power by the Supreme Court, lulled by the rare use of it by the Warren Court to the opposite end than it has almost always been put by the general conservative servants of wealth and power and corporations that have been the characteristic members of the Supreme Court, even as those rulings by the Warren and the Burger Court still dominated by the members who were there with Earl Warren are being gutted and overturned in the Republican and, now Federalist-fascist dominated Court, we are unaware that things were ever not thus.

The fact that lawyers such as Thomas H. Benton and Abraham Lincoln saw that usurpation of power by the Taney Court as outrageous proves that it was the Taney Court and not the legendary John Marshall in the piddling Marbury v. Madison that created the power for the Supreme Court to nullify laws of importance and, in fact, to, as Benton put it, insert clauses into the Constitution by Court fiat, clauses that could not have been put in it by the framers or by subsequent Congresses, presidents and a super-majority of the state legislatures.  The history books that we all had in 10th grade lied about that, I assume either out of ignorance or because they wanted to cover up the actual corrupt source of a power which has been so useful to the rich and powerful, American apartheid and white supremacy, and corporations which the emboldened Supreme Court created as "persons" in the post Taney period.

Our commonly received "history," especially that gotten through movies and TV and, may God help us, now the internet, is a fabric of lies which have such motives mixed into them more often than not.  Going back and reading earlier critics and the primary documents and their critics they cite is a pretty shocking eye opener.  Journalists, professional scribblers don't do that very often.  Certainly not those with a stake in the established order as it was set up under that usurped power which we have become dangerously habituated to accept as just how things are to be.   In this case, you might attribute that to the idolized "founders" but in this case you would be wrong.  The Taney Court founded this atrocity which the Roberts Court is using for similar ends as theirs.