the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the new Constitution. They evidently assumed that such an extraordinary power could not be exercised unless expressly granted

Continuing on with Louis Boudin's 1911 article Government by Judiciary, we come to the actual framing and text of the Constitution which is alleged to be the basis of the Supreme Court's power to do anything but which clearly does not give them the powers they grabbed for themselves.

II

Turning now from pre-convention history of the Constitutional Convention itself, and to the document which that convention framed, the candid student must admit that there is absolutely no evidence whatever of any intention on the part of that body to invest the judiciary with any sort of control over federal legislation, or over state legislation in matters admittedly within the legislative competence of the states.  And even if it be assumed, as it is commonly assumed to-day that in those matters in which state legislation was made subordinate to the federal Constitution and laws it was the judiciary, rather than any other federal governmental department, that was to act as the guardian of federal power against state aggression,  there is not the slightest evidence that the framers intended to confer upon the judiciary anything approaching the degree of control over state legislation which in later times and by slow expansion of "implied" authority the judges came to exercise.  There undoubtedly were some men in the Convention who favored the investing of the federal judiciary with general revisory powers over legislation;  but all attempts to make the judiciary part of the legislative power of the federal government failed signally and had to be abandoned by their sponsors.  The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by other implication.  And there is ample historical proof that - whatever the hopes of some, from the complete silence of the document, as to possible future  development - the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the new Constitution.  They evidently assumed that such an extraordinary power could not be exercised unless expressly granted.

I will start by noting how odd it seems to us, so long into government by the judiciary, to think that any other branch or department of the government should have the power and ability to reign in states that violate the federal Constitution, so used are we to figuring we MUST go to the courts for any such problem.  I have not thought very long and hard about that but I can't see any reason why the Court is more capable of that than the Congress or, in fact, any of the better presidents we've managed to have even with our appalling anti-democratic means of getting them.  I certainly don't much less trust them, as institutions, to do any worse than the Supreme Court, as an institution.  Of course there are presidents and Congresses that have done terrible things but the Supreme Court has too, if you didn't remember that, get a load of the Roberts-Alito court and what it's allowing in Republican-fascist states in regard to the rights of Women to the ownership of their bodies, the rights of qualified citizens to cast a vote and for those votes to matter equally, the rights of us not to be shot down with automatic weapons, our rights to have a viable future instead of burning up in coal, oil and gas created hell.  The present day court as much as the Taney Court and others proves that the Supreme Court is far, far less worthy of such confidence and impossible to correct by voting them out.

I will continue by noting the careful dance between the Supreme Court's absolute non-authority to annul federal legislation and how the Constitution actually does grant the federal Supreme Court some limited power to overrule some state legislation when it is in serious conflict with the provisions and enumerated rights of People.  There is certainly an overriding NATIONAL right of all of us to have the Congress be an accurate representation of a majority of The People in the country, for example, not to have the legitimate voters be deprived of casting a ballot, having it counted or having it gerrymandered into insignificance for racial or partisan purposes.  No matter what "justice" Gorsuch and his colleagues on the Republican-fascist majority of the Roberts-Alito Court hold.  It is a right of the most superior and only roots and trunk on which any other branches have any legitimate busness over, The People to have the government represent the majority of Americans, a right that is the only source of legitimacy for any of it, local, state, federal including the Supreme Court which is the most witlessly shielded from the will of We The People.  There is some legitimate oversight by the Federal Court AND THE CONGRESS of such state laws as those which have deprived Black People, others of that most important right of a citizen, there is every reason for the Republican-fascists in the case gutting the Voting Rights Act to see it as an act of bald Supreme Court "justice" politicing on behalf of the Republican-fascist Party.  And what is true of that is certainly true of the right of Women to control their own bodies.  I'm certain there are other instances when the same six Republican-fascists or a five to four majority of them would have no problem nullifying state laws made to protect the lives of The People when it can put automatic and other weapons in the hands of its supporters and any criminally insane person who wants to murder people.  The Roberts-Alito court has that blood, as well as that of Women harmed by its recent decision on its well-manicured, merely apparently soft and clean hands.

The judiciary article as finally formulated was adopted without a dissenting vote and almost without discussion.  It is absurd to assume that the many avowed opponents of judicial control of legislation who sat in the Convention would have agreed to the article without a murmur had they suspected that it contained even a part of the enormous power which our judiciary now exercises.  Richard Spraight, for one, whose fiery denunciation of this power I have quoted above, would have made the halls in which the Convention met ring with the echo of his empathic protest, had he suspected any such implications.  And it is equally certain that had the Convention given to the courts that power, either expressly or by necessary implication, apparent to the ordinary mind, the Constitution would have been overwhelmingly rejected by the people.

It is, of course, supremely ironic given the previous claims that the government by judiciary is warranted by colonial era courts trying to push that envelope in that direction that it was specifically against the legislatures that such powers were asserted and such powers were rejected in the strongest possible language.  It was to just such, then state, legislatures that the Constitution was proposed and accepted.  In most states with a very strong skeptical opposition being voiced in the legislatures.  If such proposals had been suspected it is certain that many if not all of the legislatures would have rejected the document on that ground, alone.

A careful examination of all the evidence on the subject now extant leads to the conclusion that the Constitution was adopted by the Philadelphia Convention, and ratified by the people of the states, without any belief, without even a suspicion on the part of the great majority of those voting for it, whether in or out of the Constitutional Convention, that it contained any such implications.  Even Hamilton, who saw more clearly than did the others the possibilities arising from the silence of the document on this vital point, probably never dreamed of any such development of the judicial power as has taken place since his day.  Mr. Joseph P. Cotton, jr. puts the case rather mildly when he says, in his introductory essay to the latest edition of John Marshall's constitutional decisions, in speaking of Marbury v. Madison:

"Common as this conception of the powers of the courts now is, it is hard to comprehend the amazing quality of it then.  No court in England had such a power;  there was no express warrant for it in the words of the Constitution;  the existence of it was denied by every other branch of the government and by the dominant majority of country.  Moreover, no such power had been clearly anticipated by the farmers of the Constitution, nor was it a necessary implication from the scheme of government they had established."

Mr. Cotton may well call the decision in Marbury v. Madison "amazing," for prior to that decision the federal judiciary itself did not claim to have obtained the powers in question by the adoption of the Constitution.  Hayburn's case, so-called, gives a fair picture of the way in which the judges themselves regarded the relative positions of legislature and judiciary, under the government established by the Constitution, during the first years after its adoption.  The consideration of that case should be prefaced by the remark that, upon the adoption of the Constitution, and because the powers now under consideration were not then believed to have been granted by the Constitution the federal judiciary was considered of little importance and so inferior and subordinate to the legislative and executive departments that our first presidents had great difficulty in getting men of high standing to accept positions on the United States Supreme Court.  The judges themselves were evidently in fear of encroachments by the legislative department upon their dignity and prerogatives.  

Going through this article by Louis Boudin piece by piece, as here, isn't a replacement for reading the entire article in one sitting, in which some of the subtle points and sarcasm of Boudin is more obvious.  I recommend reading the whole thing and wondering at how the points he made a century and a decade ago were successfully buried when the power he exposed as illegitimate has increasingly become more outrageous and dangerous in its exercise. His style of writing is impressive for his skill in giving his text continuity.  I'm enormously impressed with his achievements for someone who I believe learned English at a relatively late age.

And it's not a replacement for his great two-volume work of the same title which was published twenty years after the article was written.  This is a very good and adequate outline of the case he made in the book, presenting far more evidence and with far more to say about the outrageous excesses of the Supreme Court under its usurped powers rending it supreme over the other two branches whenever it wants to make such an assertion of power.  And, increasingly, that is exactly what the Roberts-Alito court is doing, either plainly by hearing cases or by farming out the outrageous work to lower courts through the putrid shadow-docket which they have elevated to a de facto fourth branch which does the same thing.

The Supreme Court has to be cut down to size and, as I noted, the means of making that clear within the Constitution is probably never going to happen, amending the thing is next to impossible and Republican-fascist legislatures will block such a move UNLESS DEMOCRATS SUDDENLY HOLD A CONTROLLING MAJORITY ON IT, and if that is a next to impossibility it is certainly not ever going to happen by the Supreme Court giving up a power they created, stole, nurtured and have steadily expanded both in its claimed authority and its reach and scope.  Despots don't give up power, they have to have it taken from them and the only way to do that is by joint agreement of the Congress and President to do it. Since the impeachment process under the Constitution is, for all useful purposes, a myth, I would propose that a Democratic President - and it probably won't be a trained, indoctrinated lawyer who will do it - refuse to go along with a Supreme Court ruling nullifying federal legislation and dare the Congress to impeach them over that support for the clearly enumerated powers of the Congress to make law.  If you think the Congress would impeach over that, I can't imagine one except one controlled by cowardly, trained, indoctrinated lawyers doing that once they realized that they were enhancing the power of the First Branch in the Constitution in which they were sitting.  You'd, of course, have to have a Democratic Congress to do it, Republican-fascists are perfectly happy to have the Court doing what it is doing with the McConnell rigged majority of fascists sitting on it. But that could change.