Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.

The almost penultimate post of Louis Boudin's 1911 article Government by Judiciary gets down to the problems of ending it because its dangers won't go away no matter what rare "liberal" justices might use the power for.   The Roberts-Alito Court wrecking ball to that brief era of progress under it proves it was never safe under that very power used to create that too-briefly real progress.   I remember the economist John Kenneth Galbraith warning his era's liberals against their growing practice of depending on the Supreme Court to overcome things like the anti-democratic Senate's use of the filibuster by segregationists.  I might try to find the context for that, though the last time I looked I couldn't find it.

And only a generation ago Justice Clifford of the United States Supreme Court said:

"Courts cannot nullify an act of the state legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution,  where neither the terms nor the implications of the instrument disclose such restriction.  Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism."

For any good that the Warren or Burger Court may have thought they were doing and what liberals believed they did through exercising this kind of power over state legislatures, there was the fact that its major use in its history, as Louis Boudin pointed out more than a century ago, was its use to do terrible things.  And, as anyone who has long read what I wrote will know, I believe some of those things which are championed as among the greatest things those two anomalous Courts did with such powers were turned to sheer evil by later members of the Court, not only those appointed by Nixon and later Republicans and today's Republican-fascists, but by some of those appointed by Democrats as well.  The Citizens United Case rests on the "free press" rulings of the Warren Court, so does the putrid Buckley v. Valeo.  The ability of the media to lie us into ever worsening Republican-fascism was among the most ill-considered, historically uninformed and obviously stupid ones ever championed uniformly by liberals. The whole thing began in the modesty of the Court in 1801 trying to avoid a battle with Jefferson and Madison, refusing to exercise a power which the Federalist Congress had granted them to issue a minor kind of order which the Constitution didn't specify was within their powers, the Taney Court in Dred Scott used that very exercise of a power every bit as much not one granted by the Constitution, the power of the Court to annul a minor law to annul a major one and blow a gaping hole in the country by overturning the Missouri Compromise which had stood as law for thirty-seven years, a Supreme Court decision which was largely responsible for provoking the lawlessness of the Confederates to treasonously set up a slaver government and to incite the Civil War.  Lincoln certainly knew he had to oppose that Supreme Court usurpation to save the union and to end de jure slavery.

The best and the brightest in the legal profession and among judges are quite able to hand the worst and most incompetent of them words which are deadly weapons and those who champion such decisions with ACLU style secularist sanctimony are even more liable to be played for chumps by the worst, in time. Sometimes almost immediately.  The durability of bad Supreme Court rulings as even some of the best of them prove to go sour fastest is worth always considering.

As a corollary to the principle mentioned by Judge Knox, that there must be some fixed rule by which the power of the courts to annul legislative action may be measured and by which the constitutionality of legislative enactments may be tested, and in order to prevent our government from becoming what Mr. Justice Clifford warned us it might become - a "judicial despotism" the courts have, until very recently, adhered to the well defined and clearly expressed rule of interpretation, that every inquiry into the constitutionality of a legislative enactment must be strictly limited to the question whether the legislature enacting it had power to legislate at all in the premises.  Once such power was found to exist, the manner of its exercise could not be inquired into.  No law could be declared unconstitutional on the ground that it was an unwise, inexpedient or improper use of a recognized power.  The courts distinctly disclaimed any power or right to protect the people against an abuse of power by the legislature in matters on which it admittedly had power to legislate.  . .

I will note here that that disclaiming of power by the Court is certainly a sometimes thing and, the Court, mostly, being in the hands of conservatives you can guess when they will do that and when they will ignore it.  They are generally so eager to act when it comes to state legislation protecting workers or protecting residents from guns but not when it comes to things like making sure state legislatures don't ratfuck elections through voter suppression, gerrymandering, even the most blatantly racist acts to prevent People of Color from voting, etc. Boudin, if he were writing today would have to account for the atypical later courts use of the power, something in the Lochner era hadn't happened yet.

. . . Each legislature, accordingly, was left absolutely free to use, according to its own best judgment, those powers at least which by the court's own admission were granted or left to it by the Constitution.  The power or taxation, for instance, being admittedly reposed in the legislature, no court could interfere with its exercise, no matter how unwise, improvident or even dishonest its use might be deemed.  The same was held to be true of the power delegated to Congress to regulate commerce with foreign nations.  This power was held to be unlimited; it could be used even to the extent of completely forbidding commerce, as was actually done by the Embargo Act.

This rule was laid down by Chief Justice Marshall, who declared that "the interest, wisdom and justice of the representative body furnished the only security in a large class of cases not regulated by any constitutional provision."  It has been reiterated by the Supreme Court of the United States on innumerable occasions.  In the famous case of Munn v. Illinois, decided in 1876 the Supreme Court said:  " We know that this is a power which may be abused;  but that is no argument against its existence.  For protection against abuses by legislation the people must resort to the polls, not to the courts . . . . For us the question is one of power, not of expediency. . . . Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge."

This rule was absolutely necessary in order to prevent the judiciary from exercising legislative functions, there by converting our government into a "judicial despotism."

Even given the atypically benevolent and just use of that power, that is atypical of its history.  Whatever happens to advance egalitarian democracy under a representative government, the history of the anti-egalitarian, anti-democratic, oligarchic disaster of government by judiciary will never be long compatible with those rulings.

                                                          V

Turning now from a study of the past to a consideration of the present, we must be appalled by the enormous change which has taken place in the distribution of powers in our government, not only from the time when the men of Massachusetts, Virginia and Maryland, guided by Montesquieu and English precedent, first formed our government, but also from those later days when our judges, under the able leadership of John Marshall, succeeded in establishing their position as guardians of the Constitution.

I will remind you that the "now" Boudin is writing about here is 111 years ago.  The program of reform that would prevent and correct "government by judiciary" was not taken and, in fact, things got steadily worse during his lifetime and even more so today. He was still writing about it in the crisis of the court striking down much of Franklin Roosevelt's emergency legislation to deal with the Great Depression after he wrote his book.

The Rehnquist and Roberts-Alito courts are typical of Supreme Courts in doing the bidding of the rich, the powerful and the oligarchic party and they are typical in expanding outrageously the powers that their majority in the Supreme Court take and exercise even against the most serious warnings of science, against the outrageous return to the darkest days of the United States in apartheid and wage slavery, the enormous injustice that they practice and permit and even against the express wishes of a majority whose power is thwarted by Court permitted and, so encouraged, gerrymandering, the gutting of legislation like the Voting Rights Act, the embedded anti-democratic features of the government such as the anti-democratically constituted Senate and the clear and present danger of the Electoral College.  The Republican-fascist majority on that Court since the turn of the century has not only permitted that ratfucking of democracy, they  have played the major part in carrying it out.  It's not only the six on it now who did, it is the likes of Rehnquist, O'Connor, Scalia and Kennedy who did so. The days of honorable conservatives such as the two who were in the pro-democracy minority in the Bush v. Gore decision is truly and completely dead.

Instead of "walking in the footsteps" of either the founders of our government or the earlier judicial interpreters of our Constitution, we have now abandoned all restraints upon the judicial power.  We have thrown to the winds all those great limitations, embodied in principles and rules of interpretation, which the earlier judges imposed upon their own power - a power which they deemed necessary for our orderly development, but the danger of which, when not properly limited, they clearly foresaw.  One cannot read the latest decisions of our courts, either state or federal, without being forced to admit that they have usurped supreme legislative power, and that we have reached the condition of "judicial despotism" which Justice Clifford feared. Benevolent this despotism may mean to be, or otherwise;  that depends on the individuals who wield the power.  Its benevolence is also largely a matter of opinion, depending on a variety of considerations, some moral and some material.  As is well known, it makes a great difference whose ox is gored.  But whatever difference of opinion there may be as to the spirit in which this power is exercised, it must be admitted by all candid students that this power itself spells despotism.  The essence of despotism is the right of a few to make the laws or to control their making, without being responsible to the people.  This condition is admitted by many able and learned jurists.  They seldom employ the harsh term which I have borrowed from Justice Clifford;  but despotism retains its sting no matter what it is called.

What he said a one hundred eleven years ago, is more true now than when he said it.