the epithet "revolutionary," applied by Judge Lurton to the demands of the progressives, could be more fitly applied to the latest actions of our courts

Continuing with the ever so timely 1911 article Government by Judiciary by Louis Boudin and overlapping what was already posted yesterday:

The Supreme Court of the United States decided by a majority of one that an income tax was constitutional.  Then one judge changed his mind and the Supreme Court decided that an income tax was unconstitutional.  it is now unquestioned, or at least 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, interpreting this written Constitution, is the decision of one judge who changed his mind.

Of course that stare decisis of 1911 was, indeed, changed again and may change back, yet again.  In Supreme Court reality instead of fantasy, it could heave from one side to its opposite over and over again perpetually.

But this is by no means admitted by the other side. Indeed, it is emphatically denied, at least as far as the conclusions are concerned.

Some time after Mr [Theodore] Roosevelt delivered his famous speech at Denver, Mr. Justice Lurton, of the United States Supreme Court, delivered an address on the subject to the joint bar associations of Virginia and Maryland.  That address was subsequently published as the leading article in the January issue of the North American Review, under the title: "A Government of Law or a Government of Men?"  In that article the distinguished jurist states what may be termed the "conservative" position on the subject, which is diametrically opposed to that just stated.  Judge Lurton categorically denies that the courts now exercise any legislative powers, that is to say, powers involving the exercise of discretion or the following out of political policies.  He asserts heroically that, in declaring legislation unconstitutional, our courts merely apply the law as they find it plainly written in the Constitution, precisely as any court applies the law in any ordinary judgment.  He then proceeds to defend this power generally, and he closes with an appeal to his readers to

"rejoice that in standing by the institutions which have for more than a century made us the most law-abiding people on the earth, that we are walking in the footsteps of our fathers when we maintain in letter and spirit that division of the great functions of government which the men of Massachusetts and the men of Virginia and the men of Maryland declared with Montesquieu to be the best security of a government of laws and the only safeguard against a return to a government of men(2)"

2. The North American Review, vol 1. 193, p.25

Judge Lurton's appeal to American traditions puts his opponents in the awkward position of unpatriotic men, trying to undo the work of the great men who established this government, and of reactionaries, attempting to abolish one of the most effective safeguards of our free institutions against the tyranny of a mere "government of men."  It is therefore, but fair that we should inquire into the facts of the case, historical and contemporary, and compare them with the assertions on which Judge Lurton bases his conclusions, in an endeavor to arrive at an independent judgment as to whether or not his conclusions are warranted by the facts of the case.

(1) That the framers of the Constitution, owing to their philosophical training in the school of Montesquieu and the governmental usage of the states prior to the adoption of the United States Constitution, considered it necessary, or at least expedient, as part of the scheme of division of all government powers into three independent departments, to invest the judiciary with the power to annul legislation whenever the judges should find it to be unconstitutional.

(2) That by the Constitution framed by them, they intended to invest, and did in fact invest, the judiciary with such power.

(3) That the judiciary of this country has exercised that power ever since, in the manner in which the framers of the Constitution intended it to be exercised, without any change; and that the exercise of this power for "more than a century" has made us "the most law-abiding people on the earth." [The most law-abiding?  What was a whopper of a lie even then has grown, as proved by the US gun-murder rate,  like the Supreme Court's self-granted powers the liar was defending.]

(4) That the rules of "constitutional construction" applied by our courts in the exercise of this power are so plain and simple that their application does not, in fact, involve any element of discretion;  and that the courts, therefore, have never exercised, nor do they now exercise, any legislative powers in annulling legislative acts on the ground of alleged unconstitutionality.

On this last point, which is perhaps the most important, Judge Lurton says:

" There is nothing in the past century of either the National or State judiciary which gives sanction to any such abuse of power or supports an expectation that the function of interpreting will be tortured into an exercise of legislative power.  The rules of construction are plain and simple of application.  They are in substance identical, whether the instrument of interpretation be a statute or a contract." (1)

1. North American Review, vol. 193, p. 24

A careful examination of "the facts of the case" it seems to me, will show conclusively that each and every one of these propositions is erroneous.  Indeed, the evidence against some of them is so overwhelming that its complete presentation would require several volumes. [Which Boudin published in 1931]  It is my purpose in the following pages to take up Judge Lurton's position point by point, and to present as much of what I consider to be the evidence against it as may be compressed into the narrow limits of a magazine essay.  An examination of these points, in the order stated by me will also serve to present to the reader a historical picture of the growth of the power under consideration, showing its gradual development and the vast, indeed revolutionary, changes which have taken place in its application.  And this examination will, it seems to me, establish conclusively at least two points:  first, that the power under consideration did not emerge in its present form in the brains of the framers, as Minerva sprang, fully planoplied, from the head of Jupiter; and second, that the epithet "revolutionary," applied by Judge Lurton to the demands of the progressives, could be more fitly applied to the latest actions of our courts.


That last sentence should send a chill down the back of any thinking or vaguely moral person in the United States in July 2022 after the Roberts-Alito court has taken a wrecking ball to the 20th century of law, both that passed by Congress and signed into law by presidents of both parties and long standing Supreme Court precedence including some of the most intimately private of personal rights, deliberately overturned century old gun safety legislation in one of our most populous states DURING AN EPIDEMIC OF MASS SHOOTINGS AND A FLOOD OF INDIVIDUAL SHOOTING DEATHS AND MAIMING AS THE SUPREME COURT POTENTATES ARE SOME OF THE MOST PROTECTED PEOPLE IN THE COUNTRY.  That alone puts the Roberts-Alito majority of 6 in default of their Constitutional duty to protect the lives of the People of the United States. Putting the theoretical "rights" of those who will commit those murders under the Second Amendment before the very lives of their innocent victims, this is something conservative "justices" have continually done under that theory of Supreme Court power.

The judge, Lurton, was, in short, a damned liar who told the kinds of founder-fetish lies that remind me of that cynical line made in the same period by George Cohan, The flag has saved many a bum show. Especially today with the ACLU style deification of the First Amendment, there is nothing an American will so willfully suspend even the most blatant of horrific reality over as such "Constitution" and "Founding Fathers" lies.  It is the kind of mindless piety that, when it is wielded should raise the same kind of suspicions of con job that someone peddling luxury brand name junk on the sidewalk would in most people of any sense.  Only anyone who might be suspicious will, certainly, feel the kind of inhibition from expressing their skepticism or, in fact, their contradicting knowledge.  He was what so many of the members of the Supreme Court have been, oligarchic, aristocratic con men with an elite background and credentials.

I may go through the entire article which, being published in 1911, unusually for what I post, is certainly in the public domain and, so, there's no chance anyone will object to me typing it all out and posting it.  I hope to get an index of the pieces I did last winter and into spring from Boudin's large two-volume Government by Judiciary, especially the entire chapter dealing with the real origin of the Court's self-created power of annulling duly adopted and even long standing federal law in the Dred Scott decision.  I would love to go over the subsequent chapters of that book but I lost my access to Volume 2 and have yet to have the time to replace it and go over it.  I think Lincoln's practice of declaring he would not be bound by the Taney Court's interference in the Civil War is a model of a future president brave enough to refuse to go along with the continuance of that power.  If there are dire consequences for a future president doing that when a Republican-fascist might come to power, that only points out that such dangers are present in the United States Government right now as Trump and his backers and cronies and goons at the highest levels have yet to even be questioned never mind indicted.  The U. S. Constitution, whatever its original merits, has been thoroughly gamed by gangster lawyers and the judges made of such oligarchic, aristocratic thug lawyers by Republican-fascists and some idiots and villains appointed by Democratic Presidents.  It is going to prove impossible to live under for much longer without getting rid of much of it.  

No one I've heard on the January 6th Committee has pointed out that without the atrocity of the Electoral College, what Trump tried and may have successfully accomplished could not have happened if we scrapped that brilliant anti-democratic scheme of the friggin' founders for a clean and honest NATIONAL election for President.  Elections of the Congress and President that govern all of us should be a national eleciton by national rules, not the medieval feudal eminently corrupt and becoming more corrupt every month, now, state-by-state system we have now.

The founders fetish, such as the bum show "Hamilton" promotes, will lead us to fascism and is certainly embraced most eminently by the racists that the idiot who put that atrocity together believed he was opposing.  Never trust a maker of Broadway or movie musicals to teach history, a show is about the worst way to teach real history, theater about real history always lies about it.  Even among the best and most honest of them.  

Note how "the brains of the framers" and what those contained, was the subject of false claims then as it is now in the Roberts-Alito Court and the "justices" claiming to be able to discern that often prove to be the shittiest of historians.  

Perhaps the biggest lie in Lurton's statement is this complete nonesense:

"The rules of construction are plain and simple of application.  They are in substance identical, whether the insturment of interpretation be a statute or a contract."

If that were true there would never be any overturning of previous rulings, there would be no dissents, there would be no questionable decisions and there would be a complete unanimity that the Supreme Court, individually year by year and in its entire history has never demonstrated.  The boldness of that lie is so flagrant that it is Newt Gingrichean in its Baron Muchausen absurdity.  Only it is far from humrously innocuous, it is deadly and oppressive.

It is certainly a notable failure of the American Constitutional system that the Supreme Court has been getting away with this not only since 1911 but ever since 1857.  And, as Boudin noted a century and a decade ago, it has steadily gotten worse.  It is a failure which it is not considered nice or even permissible to point out, our Constitution is an object of veneration which is held to, in its noted free-speecyness, never to be criticized, the "founders" are never to be noted to be what they were, their amateur status in setting up things which, in some cases such as the election of president and vice-president, needed almost immediate and radical amendment and, of course, in its slavery enabling language required one of the truly horrific Civil Wars to force its amendment.  That is not a symptom of infallible wisdom and good will.  To claim it is a product of the disciples of Montesquieu is an insult to Montesquieu.  What is especially absurd for Lurton and others who use that "government of laws not of men" dodge to protect this usurpation of legislative power by the Supreme Court is that there is nothing that enhances "government by men" more than giving a tiny body of unelected, lifetime appointed lawyers the power that they have to, by a simple majority of the "justices" the power to annul the work of the elected, subject to voter approval Congress and the President and to twist and distort and turn even Constitutional amendments (the product of state legislatures as well as the Congress) on their head.  As mentioned the corrupted "interpretation" and use of the 14th and other amendment by 5-4 or 6-3 or even 9-0 rulings is a scandal that makes Lurton's lie obvious.  Making it even clearer than this, the Roberts-Alito court, by 6-3 has overturned large masses of SUPERME COURT RULINGS APPROVED BY FAR MORE AND OFTEN BETTER QUALIFIED "JUSTICES" OF THE COURT in repeatedly reinforced prior rulings.  

The Roberts-Alito 6 are a government of men and one woman, including some of the most corruptly confirmed "justices" in the modern or even ancient history of that generally other than honorable court. The rights and lives of hundreds of millions, of even the entire population of the planet are held in their dirty hands. We cannot live with that continuing, it's time for that Court to be restricted to the actual Constitutionally defined powers assigned to them, not those which prior and corrupt Courts gave themselves and extended and expanded over the last century and sixty-five years, five generations.  That is not a record of success for a government of laws and not men. It is not a record of success for an egalitarian democracy or even a workable republic. We don't have a monarch, we've got six of them, if not occasionally nine.

Update:  Reading this over, I think it's necessary to dispense with the lie that the United States Supreme Court doesn't "make law," that it doesn't regularly usurp the legislative function because it most regularly does.  Indeed, some of its own, created law is profound in its effects as merely legislative adopted laws often aren't.  

The Roberts-Alito overturning of Roe v Wade certainly is an abololition of the Supreme Court creation of a condition which has all of the features of a law, including support by far more "justices" than now sit on the Supreme Court, the ability of Women to decide for themselves whether or not to carry a pregnancy to term and access to safely ending a pregnancy.

That ruling overturned many state laws preventing that, it had the same effect of the legislatures and governors legislatively changing the law in those states, it had the same effect as the proposed federal legislation that would declare that the effects of Roe v Wade were reaffirmed on the federal level, doing what the Burger Court did - including Republican "justices" - in adopting the decision.  You can say that the recent Roberts-Alito atrocity overturning the gun carrying legislation of New York did exactly the same thing, doing what the elected legislative body could but did not do, overturning its previous law BY CREATING A "RIGHT" THAT WAS NEVER RECOGNIZED EVEN BY THE SUPREME COURT, BEFORE THIS ONE.  One of the very worst laws created by the Supreme Court created an enormous disparity in the possession of "free speech" rights by declaring money equals speech, giving billionaires billions of times more of it than the destitute and poor have.  A law that has, through the efforts of the Federalist fascist Society, created the present day court.  

The difference between what the Court does in such instances and what a legislature does is fictitious, the real life effects are what proves that.  But "justices" and judges are lawyers and one of the things that that profession is good at it is to invent false distinctions and differences that mean nothing in real life, often to cover up the bald exercise of illegitimate power by the Supreme Court.

I think if we ever do get to overturn the Court's self-granted, self-created powers making themselves super-legislators, we should look at those courts of other countries where the Supreme Courts have not been allowed to do that.  We should, also, look at what it was about the American Constitution and system which allowed such a terrible thing to be allowed and to grow for more than a century and a half like a cancer on even representative democracy, quashing the aspirations of making good on the Declaration of Independence that the government so created would be an egalitarian democracy, something the "framers" reneged on in that document.  Need I repeat what I said about the Electoral College at this point?