But Judge Lurton, true to our judical tradition, established in recent years, "interprets" this passage by a method which is neither plain nor simple, but which does violence to ordinary common sense

The third day of going over Louis Boudin's 1911 article Government by Judicary

I  

In this inquiry we may take as a starting point the proposition, which is not disputed by Judge Lurton, that at the time of the American Revolution the power of the judiciary to annul legislation regularly enacted by the legislative department did not exist anywhere in the civilized world.  It did not exist in England, which we took as a model in framing our government.  Blackstone, who enjoyed in the United States great influence as a writer on all legal subjects during the years following the Revolution, in discussing the question whether "acts of parliament contrary to reason are void," said:

"If the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it; and the examples usually alleged in support of this sense of the rule do none of them prove that, where the main object of a statute is unreasonable, the judges are at liberty to reject it;  for that were to set the judical power above that of the legislature,  which would be subversive of all government . . . . 

There is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as to leave no doubt whether it was the intent of the legisalture or no . . . So long therefore as the English constitution lasts, we may venture to affirm that the power of pariament is absolute and without control."

And Montesquieu, whose authority Judge Lurton invokes, gives no support to the judge's argument.  It is indeed one of the ironies of fate that Montesquieu should be cited as authority for the supremacy of the judiciary over the legislature, in view of that philosopher's well-known admiration for the English government system of that day, upon which he based his theory of the division of governmental powers.  A reading of his works will prove conclusively that nothing could have been further from his mind than the ideas imputed to him by Judge Lurton.  Judge Lurton himself quotes from Montesquieu the following passage,  which to the ordinary mind would seem to dispose of the matter very effectually:  "In republics," says the great French philosopher, "the very nature of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of citizens in cases where their honour, property or life is concerned."  But Judge Lurton, true to our judicial tradition, established in recent years, "interprets" this passage by a method which is neither plain nor simple, but which does violence to ordinary common sense;  and he certainly "explains it to prejudice" of its author.  Significantly enough, Judge Lurton is not able to quote a single line from Montesquieu which would in any way countenance his fanciful interpretation.  

In his appeal to American usage Judge Lurton fares no better than in his appeal to foreign authority.  He says on this point:

"From the beginning it [the power to declare legislation void for unconstitutionality] has been claimed by American Courts as a proper function of the Courts under our American constitutional system.  It is a doctrine which originated in the Courts of the States long before the adoption of the Federal Constitution.  Professor Thayer, in his Constitutional Cases, refers to no less than five decisions by State Courts prior to the adoption of the Constitution of the United States, in which it is held that the power of the State legislation was limited by constitutional restrictions, and that it was the duty of the judicial power to declare legislation repugnant to such superior law void and unenforcable whenever necessary to determine the rights of parties in pending cases.  The earliest of reported cases is that of Commonwealth v Caton, decided by the Virginia Court of Appeals in 1782."

And then he adds, wonderingly;

"Neither that case, nor either of the decisions I refer to, are cited by Chief Justice Marshall in Marbury v. Madison,  although they afford a body of opinion of commanding influence which one cannot suppose the great Chief Justice to have been ingnorant of, especially as one of them was from his own State."

The fact that Chief Justice Marshall did not quote these cases should have warned Judge Lurton that they do not "afford a body of opinion of commanding influence."  In fact, they afford nothing of the sort.  They simply prove that, shortly before the time of the adoption of the Constitution, a few judges made isolated and timid attempts to exercise such powers.  These attempts aroused general indignation, and the judges were called to account for their conduct.  A brief statement of three of these cases will suffice to reproduce the historical atmosphere.  The first two cases which Judge Lurton finds in Professor Thayer's collection may be ignored, because they do not deal with legislative enactments which were in conflict with written constitutions.(1)  The three cases which require notice are:  Rutgers v. Waddington, (New York 1784); Trevette v. Weeden (Rhode Island, 1786); and Den v. Singleton, also known as Bayard v. Singleton (North Carolina, 1787).

Rutgers v. Waddington was decided by an inferior New York court, the mayor's court of new York City.  The law under consideration was a New York statute which was claimed to be in conflict with the law of nations and the treaty of peace with Great Britain.  The court specifically declared the power of the legislature to be supreme in all matters of legislation and not subject to any revisory power of the court;  but it disregarded the portion of the statute which was called into question on the theory that the legislature could not have intended to violate the law of nations and bring the United States into conflict with treaty obligations.

This decision brought forth a storm of protests.  Mass meetings were called to protest against the usurpation of power by the judiciary  and ringing resolutions denouncing it were adopted.  The New York Assembly took a hand in the matter, and passed the following resolution:

"Resolved, that the judgment aforesaid is, in its tendency, subversive of all law and good order and leads directly to anarchy and confusion;  because if a court instituted for the benefit and government of a corporation may take upon them to dispense with and act in direct violation of a plain and known law of the State, all other courts, either superior or inferior, may do the like'  and therefore will end all our dear-bought rights and privileges, and legislatures become useless."

The case was compromised and never went to the supreme court.  

That resolution of the New York Assembly certainly is confirmed  in the present-day and earlier claim of judicial supremacy.  They should take down the lie of "EQUAL JUSTICE UNDER LAW" that hangs over the doors of the putrid Supreme Court building and replace it with "and therefore will end all our dear-bought rights and privileges, and legislatures become useless."  I would love to have a good measure of how much of the cynicism about government, courts and the law have been produced by the government by judiciary which has been the reality making the Congressional one the mere shadow government.

There is a long footnote disproving both Thayer and Lurton about two of those cases which I will give here instead of inserting it into the quoted text at the end of the article's page:

Paxton's case (Massachusetts Superior Court, 1761), is not in point, because the writ of assistance issued to Paxton, of whicih the validity was questioned, was not issued by the legislature of the colony but by the judges;  and its validity was questioned, not because its issue was alleged to be in conflict with any written constitution, for there was no such constitution in existence, but because its issue was alleged to be contrary to English law.  The justices were unanimously of the opinion that the writ might be granted.  Professor Thayer does not reproduce the case (which is briefly reported in Quincy, pp. 51-57); but from the appendix to Quincey';s Reports, p. 520, he reprints (Cases on Constitutional Law, vol. 1, p. 48) an abstract of the argument of counsel (Otis), to the effect that the act of Parliament under which the writ was issued was of no effect because contrary to the laws of nature.  Some English judges had expressed the same notion - that laws contrary to natural law were void - but no such doctrine was ever established in Great Britain,  nor does the decision in Paxton's case indicate that the Massachusetts judges accepted it.

Commonwealth v. Caton, (Virginia Court of Appeals, 1782;  4 Call, 5;  Thayer, Cases, vol.1, p. 55) - the only case which Judge Lurton names - is not in point, because the court had had before it nothing resembling a legislative enactment.  What was before the court was an attempt on the part of one house of the legislature to grant to certain persons, convicted of treason, a pardon, which could be granted only by the concurrent action of two houses.  On its face the alleged pardon was nothing but a bill which had failed to become law, and no court in the world would have treated it as possessing any force. Professor Thayer reprints the case because the judges declared obiter that they were competent to determine the validity of legislative cases alleged to be in conflict with the constitution of the state.

I am not familiar with "justice" Horace Lurton except to know the name so I never had much of an idea of him before.  Reading about him, one thing about him is clear, he fought for the Confederacy (and so was once a traitor) before he conveniently was captured and swore allegiance to the Constitution.   From that dodgy start, I wouldn't much trust him. 

From even just this much from a speech he made from two state legislatures combined (Virginia and Maryland) and the legal profession as might have been expected to notice the speech printed as an article we can know three or four things.

First is that Lurton wasn't an honest man, misrepresenting those he cited, carelessly citing cases that were certainly not supportive of his claims and, as Louis Boudin points out with full citations, his other claims  contradicted or at least failed to support his claims that an eminent eminent philosopher of politics agreed with him and that long passed judges and "justices" support his claims in specific cases that most certainly couldn't be used honestly to support his claims about the Constitutionality of the US Supreme Court created power for them to overturn duly adopted laws by the Congress and President. And it would appear that his authority in that,  Thayer wasn't much better.  

Second is that he was either a knowing liar or a very careless scholar, misrepresenting the cases in the very source he cites.  Boudin is obviously the superior scholar, apparently superior to Thayer as well - I'm extremely impressed with both his intelligence and diligence as a scholar and his clarity and honest reasoning as a writer.

Third is that many or most of those lawyers who either heard or read his claims either believed him about cases they were unfamiliar with without much fact checking or, if they were familiar with them and must have known he was misrepresenting them, were too cowardly or dishonest, themselves, to object.  I think all three habits are endemic to the legal profession and judiciary and I think it may be in no small part because the United States judiciary has created a dystopian reality that it, by fiat of a simple majority or even the unanimity of nine unelected, lifetime appointed, for all practical purposes impossible to remove "justices" what they say goes and, as I think we will find if Democrats manage to encode the right of Women to choose abortion into law or, even more so, to protect the rights of voters as in the great Voting Rights Act which the Roberts Court destroyed, the six Republican-fascists on the Court will knock it down by their expansions of the court-created power invented by the infamous Chief "justice" Roger Taney in the Dred Scott decision, not by colonial era judges as the liar Lurton claims.

I will give him this, in the passages Boudin quoted, his reliance on COURTS of the colonial period for the creation of the power he claims for the Supreme Court is clear:

From the beginning it [the power to declare legislation void for unconstitutionality] has been claimed by American Courts as a proper function of the Courts under our American constitutional system.  It is a doctrine which originated in the Courts of the States long before the adoption of the Federal Constitution.

He admits that it isn't something that was ever legislated by a legislature and signed into law by a chief executive, nor that it was a long-standing holding of English law in effect in the colonies (Boudin points out Lurton doesn't make that claim) he admits, or, rather claims, that it is a judge-made power which they granted themselves, exactly what the infamous Taney Court did in overturning the Missouri Compromise, the first time an American Supreme Court ever overturned a duly enacted, long in effect law adopted by Congress for the purpose of protecting and defending the institution of slavery and, in their decision taken as a whole, making it impossible for anyone or any state to prevent slave owners who move to free states from holding their slaves in slavery there. The actual birth of that power couldn't spring from a more evil motive - a number of the concurring "justices" in that case were slave owners or from families that benefited from slavery . And for a most mistakenly dishonest purpose, those meat-heads in black robes believing that by their fiat, they could "restore" the "peace and harmony" that was broken when a large number of Americans took the words of the Declaration of Independence seriously and turned against the violent evil that slavery was.  

Lurton presumably had gone to the bother to read the decision and the concurrent opinions and he must have noticed that among the effects of it was the election of one of our greatest presidents replacing one of our worst ones (who lobbied "justice" Grier to concurr with the appllling ruling that was leaked to him before it was issued), the secession of states in the hands of slavery gangsters, the Civil War and the passage of some of the most significant reforms of the slave-holder distorted Constitution of 1787 in its history - not that you'd guess that by the treatment by the Supreme Court of some of those Civil War Amendments to the thing.

"true to our judicial tradition"

I am a severe critic of the United States Constitution that forces on us such dangers as the anti-democratically constituted Senate (even worse originally, when it was appointed and not elected), the dangerous and anti-democratic Electoral College which Trump used to mount an attack on electorial democracy and came close to succeeding with an armed insurrection against the Congress and the Vice President as they presided over the goddamend, baroque, anti-democratic, unnecesary ritual, and a number of other things.  One thing that it can't be faulted for is granting permission to the Supreme Court to act as a super-legislature and presidency in making law, in annulling adopted laws and in issuing a veto of a duly enacted law such as the Voting Rights Act and the equally important Campaign Finance Reform laws it has knocked down, corrupting our elections to levels not seen since the worst days of the 19th century.  They have knocked down laws protecting the lives of United States Citizens from criminals and the criminally insane using automatic guns.

In their recent ruling overturning the long-standing Court made Roe v. Wade and in other long-standing court rulings upon which other important rights have been allowed by many more "justices" on previous Supreme Courts and other Courts, they acted as legislatures do when they overturn legitimately made laws of previous legislatures.  The "justices" such as Alito, Gorsuch, Kavanaugh and Coney Barrett lied even more boldly than Lurton did during their confirmation hearings when they, in sworn testimony, claimed they accepted such decisions as settled law AND EVERYONE IN THE ROOM AND LISTENING ON TV OR RADIO KNEW THEY WERE LYING AS THEY LIED THAT.  Their actions prove that that conclusion I came to at the time I heard them was correct.  So even long-standing Supreme Court made law can be overturned even by those members of the court who claimed under oath before Congress that that was "settled law" or some such other equivalent turn of phrase.  Far from merely calling balls and stikes on the written law, the Suprem Court, under this usurpation of legislative and executive powers, literally, by fiat, makes even legitimately written law AND THE CONSTITUTION into whatever they say it is.  You may be right if you claim that isn't a legislative function nor even the function of an executive under a democratic republic it is far more royal and monarchical power as found in such tyrannies of the Tudors and some of the worst of the French monarchs ("l'état, c'est moi") familiar to those who wrote the Constitution.  The usurpation of power gives us sometimes 5 sometimes 6, 7, 8 or 9 absolute monarchs instead of one instead, replacing the Court for a representative democracy.

One of the things Coney Barrett, among others, cited as "settled law" of longstanding was Marbury v. Madison which is the case often lied into the role of producing the right of the Supreme Court in overturning duly enacted Congressional law when all it did was allow an appointed justice of the peace to take the office for a limited term.  She certainly did that because there is one non-Constitutional, court-made law that she never intends to vote against or see overturned and that is exactly the "right" of Supreme Courts that even the liar Lurton had to claim was an invention of judges in the colonial period and not the product of a duly made, carefully considered law, representing the best judgements of a far larger number of ELECTED OFFICE HOLDERS.  

But if they could overturn the Voting Rights Act and others of near or equal importance, if they can distort through lies the vitally important 14th Amendment (and others) to nullify important parts and complete texts of duly enacted laws and adopted amendments, why couldn't the Supreme Court nullify that long-standing Court-created innovation?  One protected by the myth of its creation and its sham legitimacy and the amber-filtered, piously articulated, piously spoken of Supreme Court and its "justices" when some of even the most highly considered have been more like gangsters and thugs in reality.

And if the Court could nullify the Court-created power to nullify duly enacted laws of even long standing, why can't the far larger, ELECTED, ANSWERABLE TO THE VOTERS AND REMOVABLE FROM OFFICE Congress and President nullify it?  The mythic foundation of the United States held that the only legitimacy of government comes from the consent of The People, something which this Roberts-Alito court as others in the past have certainly disregarded at their whim and will - often plainly for the profit of the rich, in this court, for all intents and purposes, the ones who bought them their place on it.  

WE, The People of the United States should demand that the Congress and President nullify the Court-created power to overturn even the most widely supported laws duly enacted by the Congress and signed into law by the President because if there's one thing we can count on even the good "justices" on the Supreme Court to be reluctant to do, it's give up that usurped power which has blighted this country since the Taney Court created it in one of the most putrid acts that Court ever committed.  It is poison fruit produced by a poison tree.  There is plenty in the previous and later history of that court which is in need of serious demythification, but none as important as the claim that the insipid, mundane in effect Marbury v. Madison was the origin of that power instead of the Dred Scott decision.