"If, on the other hand, the legislature of the union or the legislature of any member of the union shall pass a law within the scope of their constitutional power, the court cannot pronounce it to be void merely because it is in their judgment contrary to the principles of natural justice."

Next in Louis Boudin's 1911 article Government by Judiciary:  


That was the atmosphere in which arose the following facts, which are usually referred to as "Hayburns's case." (1)

The First United States Congress passed an act "to provide for the settlements of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims of invalid pensions."  Under the provisions of this act the claims were to be passed upon by the federal circuit courts, whose decisions were to be subject to the consideration of the secretary of war, and, if the secretary saw fit, to suspension, and to the revision of Congress itself.  The question of unconstitutionality, in the modern sense of the word, was not involved.  But the judges saw in this act of Congress an encroachment upon the dignity and independence of the judicial department.  For this view there were good reasons;  for if the duties assigned to the judges were regarded as non-judicial and ministerial, it was not fit that such a burden should be imposed upon them; and if, on the other hand, these new duties were regarded as judicial, the independence of the courts was endangered by assigning to the executive and legislative departments power to revise judicial decisions.

I'll break in to point out that what the later "justices" who created the power of that very Court to overturn duly enacted federal laws were, themselves, doing exactly what those of this early period objected to, taking on non-judicial functions which were not properly within their range of responsibilities, certainly nothing the Constitution excused them doing.  This entire practice is saturated in hypocrisy mixed with irony.

What were the courts to do?  We can readily imagine what they would do now, in any similar emergency.  What they actually did then shows how far we have traveled from the points of view held by the men of Massachusetts and of Virginia and of Maryland, who formed this government of ours.

If you need to be reminded, this is a sarcastic reference to the speech of "justice" Horace Lurton quoted earlier in the article.

I will note in passing that the members of the First Congress and the then Supreme Court had direct access to the minds of "the founders," "the framers" because some of them were actual members of the Constitutional Convention of 1787, many more knew members of that Convention, they were their most intimate colleagues.  It is absurd to think that later members of the Supreme Court or legal scholars could have better understood that "original intent" than those of the generation who had those intents, though the entire right-wing of the Court now believes or, rather claim they, actually, can do that through Federalist-fascist Society style necromancy and the entirety of educated consideration, polite society and the established order as well as the ignorant media goes along with that supreme horse shit.  The culture of such ignorance and cowardice based deferential suckering when it comes to the third branch of government is a key player in the corruption that the present-day Supreme Court is running rampant with.

The members of the circuit court for the district of New York (Mr. Jay, chief justice of the United States, Mr. Cushing, associate justice of the United States Supreme Court, and Mr. Duane, district judge) stated, in writing, their objections to the law.  They held that the duties which Congress had assigned the court were "not judicial, nor directed to be performed judicially,"  and that the court as such could not perform them. But, they said, "as the judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the national legislature,"  they would execute this act in the capacity of commissioners.  And they proceeded to perform the duties imposed upon them.

It should be noted that two of these three most reluctantly compliant "justices" were actually members of the Constitutional Convention, Jay among the most prominent and vocal participants in it.   Others of the initial Supreme Court, such as Wilson was as well.   The First Congress which adopted the bill that they complained of was rife with either actual members of the Convention that drafted the Constitution or with some of their closest colleagues and friends. 

The members of the circuit court for the district of Pennsylvania (Messrs. Wilson and Blair, associate justices of the United States Supreme Court, and Mr. Peters, district judge) and the members of the circuit for the district of North Carolina (Mr. Iredell, associate justice of the United States Supreme Court, and Mr. Stigreaves, district judge) declined to act; and they sent "representations" to the president, explaining their apparently insubordinate conduct.(1) These representations are strange readings to the lawyers of to-day.  We are used to different language from members of the "most august judicial tribunal in the world."

The matter was afterwards brought up by the attorney-general before the United States Supreme Court, on the question whether the judges had a right to decline to act.  And the official report says, that, although the judges were all agreed as to the unconstitutionality of the law, "the Court observed, that they would hold the motion under advisement until the next term;  but no decision was ever pronounced, as the legislature, at an intermediate session, provided, in another way, for the relief of the pensioners."

No decision pronouncing an act of legislation void because repugnant to the federal constitution was rendered prior to Marbury v. Madison.  The case of Calder v. Bull, decided in 1789, in which an act of the Connecticut legislature was upheld, is interesting, just as Otis's argument in the Paxton case is interesting, because in delivering the opinion of the Supreme Court Mr. Justice Chase went out of his way to give his views on the abstract proposition of the right of the courts to annul legislation, irrespective of constitutional limitations, on the ground that it is "contrary to the great first principles of the social compact."  The case is interesting, further, because, in asserting obiter the authority of the court to declare unconstitutional laws void,  Mr. Justice Iredell described the authority as "of a delicate and awful nature" and said that "the court will never resort to that authority but in a clear and urgent case."  To the view propounded by Chief Justice Chase,  Justice Iredell took exception, saying"

"If, on the other hand, the legislature of the union or the legislature of any member of the union shall pass a law within the scope of their constitutional power, the court cannot pronounce it to be void, merely because it is in their judgment contrary to the principles of natural justice.  The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject;  and all that the court could properly say in such an event would be, that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion of the judges, was inconsistent with the principles of natural justice.
 
 1. The "representation" to which the Pennsylvania circuit court sent to the president reads as follows:'

" To you it officially belongs to 'take care of the laws' of the United States ' be faithfully executed.'  Before you, therefore, we think it our duty to lay the sentiments, which, on a late painful occasion, governed us with regard to an act passed by the legislature of the union.

"The people of the United States have vested in Congress all legislative powers granted in the constitution.'  They have vested in one Supreme court, and in such inferior courts as the Congress shall establish, ' the judicial power of the United States.'  It is worthy of remark, that in Congress the whole legislative power of the United States is not vested.  An important part of that power was exercised by the people themselves, when they 'ordained and established the Constitution.' This Constitution is 'the Supreme Law of the Land.'  This supreme law 'all judicial officers of the United States are bound, by oath or affirmation, to support.'

"It is a principle important to freedom, that in government, the judicial should be distinct from, and independent of, the legislative department.  To this important principle,  the people of the United States, in forming their Constitution, have manifested the highest regard.  They have placed their judicial power, not in Congress, but in 'courts.'  They have ordained that the Justices of those courts shall hold their offices during good behaiviour,' and that 'during their continuance in office, their salaries shall not be diminished.'

"Congress have lately passed an act, to regulate, among other things, 'the claims to invalid pensions.'  Upon due consideration, we have been unanimously of opinkon, that under this act, the Circuit court held for the Pennsylvania district could not proceed.

"1st.  Because the business directed by this act is not of a judicial nature.  It forms no part of the power vested by the Constitution in the courts of the United States; the Circuit court must, consequently, have proceeded without constitutional authority.  2nd, Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgements) might, under the same act, have been revised and controuled sic. by the legislature,  and by an officer of the executive department.  Such revision and controul we deemed radically inconsistent with the independence of the judicial power which is vested in the courts'; and, consequently, with that important principle which is so strictly observed by the Constitution of the United States.

" These, Sir, are the reasons for our conduct.  Be assured that, though it became necessary, it was far from being pleasant.  To be obliged to act contrary, either to the obvious directions of Congress, or to the constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again."  

It is amazing that this history of pre-Marbury discussion of these issues is not more known, the members of the Supreme Court of that period and their honest, forthright modesty - even in Iredell's point about natural law admitting that the Congress had as legitimate a view of it as anyone on the court - and considering some of the lawyers in the Congress of the time were among the most eminent of lawyers in the country, indeed some of them actual drafters of the Constitution, this swamps the later day, would be "originalists" and "textualists" and other such liars who take on the powers legitimately belonging to the Congress to abolish duly adopted laws by the elected branch.  When the Federalist-fascist Society puts a cameo of Madison up as its mascot, it is a wonder his shade doesn't rise up and obliterate that club of fascists.  

I will point out, since the next section in this series deals with Marbury v. Madison that virtually all of the actors in that were, actually, some of the central figures in the drafting of the Constitution, John Adams, James Madison and the de facto founder - though he wasn't a member of the actual Constitutional Convention, he was one of its most important consultants - Thomas Jefferson.  I'll hold further comment on that point until then.

As amazing is the suppression of this literature which could only be done for the purpose of upholding the illegitimate practice and the most likely reason for such an effort to succeed is that it, by far, favors those who are rich, powerful, embedded in power and influence, their efforts gone along with by others out of ignorance and cowardice which I have come to believe since witnessing the conduct of lawyers testifying in Trump's first impeachment hearings is typical of the legal profession and the kind of lawyers the judiciary made up of.  The history of this power is not told in Brown v. Board or other such reputed milestones of progress in Supreme Court history, it is told in the retreats from equal justice, those favoring slave owners, in cases of Supreme Court suppression of state laws protecting the health and safety and rights of workers, in the current reign of the Roberts-Alito court in favoring the coal, oil and gas industry over survival of the biosphere, of it putting guns in the hands of those who murder us, and, I would assert, emboldening it to do things like overturn elections and to suppress efforts by the Congress to clean up and democratize our politics.  The Supreme Court story, far from the Nina Totenberg - Anthony Lewis style romance about what they do, is more typically  told as the cynical history of a bunch of gangster lawyers enabling the kind of un-illegalized crime that is allowed too often in our political branches and is even more enabled by the Supreme Court and other corrupted federal courts.  The perfecting of the virtual fourth branch in the shadow docket is, also, a product of the culture of government by judiciary.  Lawyers are trained to focus on words instead of the realities behind them, they only really figure the words are what's important in most cases. That's the bread and butter of their professional lives.  That and getting paid for it - 'during their continuance in office, their salaries shall not be diminished.'  Just had to remind them that Congress couldn't cut their salaries if they pissed them off.

There is every reason for the Congress, the President to reign in the Supreme Court by refusing to acknowledge their self-created power to veto or nullify laws made by Congress and they could certainly do it citing the text of the Constitution and such facts as Louis Boudin brought out more than a century ago.  It is stunning how that has not been done and will probably be stunning in it not being done even as this Roberts-Alito court gets ever worse and finishes the destruction of American democracy as the Rehnquist Court, chiefed by a known practitioner of voter intimidation in Arizona, started in earnest.  The temptation to look back on the Court in his years in the way that foolish people look back at the Bush II regime now that we've experienced Trump should not be followed.  The wrongs of the past are some of the tools that the wrong-doers of the present use to expand on those wrongs.  That's especially true of the legal racket.  And under our system, corrupted by the unregulated. ethics-free, Supreme Court, it is a racket.

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Bush v. Gore should have been the last straw on the back of democracy, when will Americans finally throw off the imperial Court and cut it down to what it should be, as it is in any modern democracy except that of the United States with its outmoded Constitution which, however, is not to blame for this abomination.  Getting rid of the goddamned Electoral College, an invitation for anti-democratic corruption, is as important.  Doing that through states passing the reform of state electors casting their votes for the winner of the popular vote that will attempt to do that without the impossible to accomplish Constitutional amendment process should be among our most important efforts.  If that had been in place in Michigan or Wisconsin or many other states, Trump and his army of armed insurrectionists would have never tried what they did on January 6.  If it had been in place in Jeb Bush's fifedom of Florida in 2000, Al Gore would have been president and much of the crisis of the past two decades would certainly not have been what it was.  I doubt he'd have been caught asleep at the wheel as warnings that 9-11 was coming were being sent his way, his National Security Advisor wouldn't have been focused on her piano practice for a star-turn instead of doing her job as National Security Advisor.  Roberts and Alito would still be hack lawyers of Federalist Republican-fascism and it's most likely that there would have been on financial crisis of 2008.  And that's only the start of it.  The crises we have faced are largely a product of the corrupt Rehnquist Court's abominable action in 2000.  Trump would have been an aging figure on network TV and Putin would never have bothered cultivating him as his mole in the presidency.  If there are those who really understand the American governmental system as it really is instead of in court-reporting bull shit, it's the likes of Vladimir Putin and other such manipulators of our system, especially under the Citizens United ruling of the Roberts Court which, with warnings, opened us up to their manipulations.  The imperial court is one of the greatest dangers to our very independence as a country.  And they really don't mind playing that role because, after Trump, it's clear as can be that's exactly what they're doing.