Our courts are, however, in a different position - or, at least, it is claimed that they are in a different position - with respect to their power to declare legislation void for alleged unconstitutionality.

 The most momentous question before the people of this country today is undoubtedly the question of the limits of the power of the judiciary to annul legislation for alleged unconstitutionality.  When Mr. Roosevelt opened his campaign for the so-called "new nationalism,"  he was forced to make what was called by his opponents "an attack upon the judiciary."  The general election that followed was largely fought, at least in the eastern part of the country, on the issue thus made;  and the fight against the new nationalism has since been largely a fight for the preservation of the powers of the judiciary as they exist today.

The fact that Mr. Roosevelt denied the allegation, claiming to have made no "attack" upon the judiciary, does not change the situation.  It is of course true that Mr. Roosevelt did not attack the judiciary as an institution;  he merely criticised some of the decisions of one of our courts.  But that court is the highest court in the land.  And criticism of courts must be admitted to stand on an entirely different footing from criticism of other public functionaries, notably from that directed against legislative assemblies.  Legislators - and, within certain circumscribed limits, executives - are vested with discretion to act as public interest may, in their opinion, from time to time require.  Criticism of their public acts does not necessarily involve anything more than the expression of a different opinion as to what is best calculated to promote the public good under certain circumstances.  It is different with judges.  They are not supposed to be vested with any discretion to act as they see fit in the interest of the public welfare.   They are supposed to find the law written down in former decisions or in statutes, in the making of which they have no share, and to apply the law which they find to the facts of the cases presented to them,  irrespective of their opinion of its wisdom or unwisdom.  Ordinarily,  therefore, criticism of the judgements of a court implies a reflection upon either the legal knowledge or the integrity of its members.  

"Our courts are, however, in a different position - or, at least, it is claimed that they are in a different position - with respect to their power to declare legislation void for alleged unconstitutionality.  It is claimed by those who criticise certain of the decisions of our courts on that subject that in dealing with constitutional questions our courts exercise legislative powers under the form of judicial decrees,  and that the canons of criticism which usually apply to acts of legislatures are therefore applicable to our courts with respect to such decisions.  It is in this that Mr. Roosevelt implied, when he said, in his Denver speech:

The Course occupy a position of importance in our government, because, instead of dealing only with the rights of one man face to face with his fellow- men, as is the case in other governments, they here pass upon the fundamental governmental rights of the people as exercised through their legislative and executive offers."

And it is in the same position that is expressed in the very forcible and striking manner in an editorial article on "The Flexibility of the Law,"  which appeared recently in The Outlook.  The editor of The Outlook said:

"In our judgment the real Constitution of the United States, the Constitution under which we are living, the Constitution to which the decisions of all our subordinate courts must conform, the Constitution to which all legislative acts, whether State or National, are subject is not the written Constitution which was formed in 1787.  Itg is the written Constitution plus the decisions of the Supreme Court of the United States interpreting and applying it, and the habit of the Nation which has grown up under it.  The Outlook has been criticised for talking about the written Constitution as though there were any other.  There is another; and its binding force upon the American people this other Constitution is quite as important as the written document.

The Supreme Court of the United States decided by a majority of one that an income tax was constitutions,.  Then one judge changed his mind and the Supreme Court decided that an income tax was unconstitutional.  it is now unquestioned, or at leas unquestionable, that an income tax cannot constitutionally be levied by Congress upon the people of the United States. What makes such a tax unconstitutional is the Supreme Court's decision interpreting the written Constitution.  What made the Supreme Court's decision, in interpreting this written Constitution, is the decision of one judge who changed his mind.(1)"

1. The Outlook, December 17, 1910, vol. xcvi, p. 848*

 
This is the first several pages of Louis Boudin's superb 1911 article which he expanded into the great book on the topic of Judicial usurpation of legislative and executive power by the United States Supreme Court published one hundred eleven years ago last month.  The "Mr. Roosevelt" is not FDR but his distant cousin Theodore Roosevelt, the first instance of the dangerous permission of the Court usurpation of power, the  constitutionality then unconstitutionality of an income tax was, of course, perhaps temporarily, switched back by the same Court to "constitutional" with a different cast of characters comprising that costume drama troupe. There is no telling if the current Roberts-Alito court will overturn it again, I wouldn't put anything past them, the present Republican-fascist majority has no restraint, they have no shame, they have no sense of honest dealing.  

As you can see, it is entirely relevant to the present day.  Under our impossible to reform Constitution, even the most glaring of dangerous problems it sets up or permits go unchanged for generations and, now, centuries.

I think it's most notable that even in Teddy Roosevelt's time there was a faction in favor of retaining government by the judiciary over and above representative democracy, itself a far cry from the alleged egalitarian democracy promised in the Declaration of Independence to those who fought the Founder's revolution for them.   That established, oligarchic, aristocracy has control of most of if not almost all of the legal industry, the engines of power and the organs of the mass media and the idiocy of the common received POV which dominates academic babbleage and scribbleage.   If there was a real move to put the damned Supreme Court in its place, you could count on PBS, NPR, the cabloids, etc. finding several academic voices of that same establishment, unchanged from a century and a decade ago except in their dress and names, probably from the same institutions and prostitutions to say why it can never be any other way.   The media, the corporate media is as invested in no-change as the oil and gas industry and the unillegalized criminal gangs such as the Federalist Society.

The Constitution is, of course, the reaction of the same class of "Founders" to the widespread rebellion when it became clear to many a revolutionary soldier that they intended to stiff them.  Though, perhaps, we can dispense with a rigorous critique of that document of 1787 because even it is of marginal import when it is an unprincipled and unscrupulous band of liars and overturners of even the most personal of rights who are declaring what the Constitution is.

A few years back I wrote about a commentary by a very good British Youtuber about the supposed benefits of Britain's unwritten Constitution as opposed to one which is written, such as the one in question whenever the Supreme Court is declaring its meaning by fiat.  "Phil" gave some very good reasons as to why it is safer to have an unwritten Constitution which can be interpreted over time to address changed circumstances, later courts and judges being able to move with the times instead of being dictated to by long, long, long dead minds who couldn't possibly understand the changed world we live in how and the world which, unless humans become extinct due to, among other things the Roberts-Alito Court's devotion to the wealth of those such as Amy Coney Barrett's family and the fossil fuel industry, may come well after us.  Louis Boudin, especially in writing about the career of the hapless and foolish genius among the early justices, Joseph Story who, along with Alito, cited "English common law" in the form of ancient rulings by English judges which, while it was cited by the American Supremes, had long ago become dead-letter law in England as they moved on from it.   As Boudin in his book latter pointed out, this can be seen in the case of the scrupulous upholder of ancient law and allegedly anti-slavery man, Joseph Story, what Alito did to destroy the rights of Women to ownership of their bodies citing such ancient law, has happened before with quite awful results.  Only as Boudin notes what may be a limited result of the deprivation of rights to single individuals, as in the deliberations of even many a more modernly constituted supreme court, under the usurped powers of ours can turn into a travesty effecting hundreds of millions if not more.

As can be seen in the century plus old observations of Louis Boudin, having a written Constitution doesn't really cement meaning into place, it merely makes the whimsicality - or rather whimsy masking bald power and economic advantage - more of a baroque word game pretending to give new life to the minds of late 18th century aristocratic, white almost all Protestant man only, as often as not, it is about as authentic as some of the more outlandish dress up and play that reenactors engage in.  

This would be highly amusing if it were not for the fact that under our entirely unformed, serially outrageous history in which little to nothing is ever fixed once a gaping and dangerous defect such as this is pointed out, through the impossible to do reformation by such radical Constitutional amendment, the Roberts-Alito court is getting Women and others injured and, I have no doubt, if not killed now, that body count will start within weeks.  It is getting People killed through their arming of the Republican-fascist militias that are forming and also organized criminals and, also, the insane. They are endangering us through the already mentioned fossil fuel industry and oligarch enablement which I have no doubt some if not all of the Republican-fascist majority OR THEIR SPONSORS AND PATRONS directly benefit from.

The Supreme Court is now, beyond doubt, the most corrupt branch of the government, that is until they rule to ensure anti-representaive Congresses and presidencies.  

I think it's time for Democrats in the presidency and the Congress to declare that that rule by judiciary is over and they should absolutely refuse to go along with the continued tyranny of a small number of men and one woman who whimsically declare what the constitution means with no regard for either the legisltaive record of those who wrote the Constitution (such as the 14th Amendment) or even the original document nor previous courts, often adding up to many times more "justices" than the 5 or 6 or even 9 who sit on it as they overturn long established rights and long needed changes.  

I think Democrats must take up the torch that has been too long put aside and campaign against this Court and, in fact, the extra-Constitutional power that was, in fact, invented by the not-unamous Taney Court in the most infamous of all rulings, the Dred Scott decision in which six slave owners and one "northern justice" who was certainly lobbied by one of our worst presidents tried to protect and extend slavery throughout the country even against the will of the majority of the citizens and residents of the country and the majority of those in the free states.  The judicial power to overturn duly adopted legislation is the Rosemary's Baby of the American government, the spawn of Satan by the rape of democracy by some of the worst members of the federal government in our history.  It is a power which should have been overturned in the Civil War amendments - I think they believed they had done that or, at least, with the infamy of the Taney Court had brought upon that institution they may have mistakenly believed future courts would not dare to repeat.  If that's the case, they were sadly and dangerously mistaken.  The Supreme Court is the most corruptible and most corrupt branch, very openly and boldly corrupted in league with Mitch McConnell and such other thugs as Grassley, Graham, Collins, etc. It is the most dangerous of all, in the long term.  

*  I had wanted to give a link to that cited article but haven't been able to find that particular issue of that magazine online.  I did, though, find a roughly contemporary article in La Follette's Magazine which cites the same article entitled, Why The People Distrust The Court which is well worth reading.  I will call your attention to the sections titled "A Shield For The Trusts, "  and " Throwing Laws On The Scrap Heap."   This is an abomination that has gone unchallenged for far too long.  If the typical lawyer-Democrat Presidents and leaders of Congress are too subservient to challenge the thugs on the high bench, maybe we need some non-lawyers to finally take the friggin' crowns off of their heads.  Nine despots are no better than one.