The first restraint to go by the board was the principle that this power was of an "awful nature," as Justice Iredell expressed it, an extraordinary power to be used only on extraordinary occasions for extraordinary purposes. It has become an ordinary power, used by our courts without hesitation as one of their regular functions. It is well within the truth to say that our federal and state courts now annul in one year more laws than they annulled during the entire first half of our national existence. The power is now used by every petty magistrate, and we are so accustomed to its every-day use that to speak of its "awful nature" seems like a bad joke.
The next restraint to be thrown off was the principle that a law cannot be declared unconstitutional unless it contravenes some special provision of the Constitution applicable to the subject, expressly stated in the Constitution or contained in it "by necessary implication," and that neither the general protection accorded to life, liberty and property nor the so-called "spirit of our institutions" gives sufficient cause for such annulment. Most of the important decisions declaring legislation unconstitutional are now rendered in violation of this principle. The chief grounds for the annulment of legislation in recent years have been the modern doctrines of "due process of law" and of "liberty of contract." According to the earlier view, neither of these doctrines would have justified the courts in assuming the control over legislation which they now exercise.
When the phrase "due process of law" was first used in this country, as part of the usual bill of rights in our state constitutions, from which it was subsequently taken over into our federal Constitution, this phrase had a well known and clearly defined legal meaning, which was the same as its literal meaning, namely, that of a procedure under general law, with proper trial or hearing. And it was in this sense that the phrase was used until comparatively recent times. But now it has acquired an entirely different meaning. As it is now used by our courts, when they declare legislation unconstitutional for contravening it, it means substantially the same thing that was meant by "natural justice," "principles of liberty and justice" and similar expressions in the earlier days of our constitutional history. Denial of "due process of law" is now discoverable in any law that requires or permits something to be done which the judges deem unjust or not in accord with the "free spirit of our institutions."
The doctrine of "liberty of contract," when used as a test of the constitutionality of legislation, is a still more glaring violation of the older rule. The federal Constitution nowhere mentions any such "liberty." It is claimed, however, by our judges (in modern decisons, of course), that this is part of the liberty guaranteed in the phrase contained, in one form or another, in all our constitutions, that "no person shall be deprived of his life, liberty or property without due process of law." Aside from the question of the meaning of "due process of law," which has just been considered, there is an additional difficulty with this particular "liberty," namely, that it was entirely unknown and undreamed of at the time we borrowed our "life, liberty and property" phrases from English constitutional law. It is therefore evident that this particular "liberty" was not originally contained in our constitutions. And in fact no such "liberty" was asserted until recent years. When did this "liberty" get into the Constitution? Evidently when we infused in the old words the new "spirit" of extreme individualism. And now we declare legislation unconstitutional on the ground that it is repugnant to this "spirit," and we call this "walking in the footsteps" of our forefathers!
One of the most useful things in going through these old studies to me has been the revelation that much of what we have, indeed, become so accustomed to words' and phrases' every-day use, that the meaning we give them now is hardly uniformly held. Many who toss off the phrases don't have any idea what they might mean, many of the phrases, themselves, have sprouted many heads of meaning like the mythological Hydra, no doubt, eventually, one of the will bite someone and get someone killed or maimed. The point about "liberty of contract" which, certainly is about to be revived in the biggest possible way - I'll bet that the trucker freezing Gorsuch will write the decision - when, if Boudin is right, that "liberty" could not have entered into the Constitution because no such "right" was entertained even as part of "due process" when the Constitution was adopted. Abortion was known and legal to some extent (or so I've read) "due process" and a myriad of other Court creations such as "corporate person-hood" were neither known nor articulated and so could not have entered into the intentions, never mind the text of the document the "originalists" and "textualists" all pretend to follow so diligently when they are calling balls and strikes in such a predictably oligarch favoring manner on a predictably partisan basis.
If lawyers, law professors, judges, "justice" dislike the cynicism in which the law and courts and lawyers are widely held, the cause of that cynicism goes right to the top OF THEIR PROFESSION. You should expect that to only grow as the Roberts-Alito Court continues on its merry way, trashing anything like progress towards egalitarian democracy or even the universal franchise of qualified adults. Only no one should have expected otherwise, the Supreme Court has been an open sewer back to the days when slave-holders were making decisions that favored them building their fortunes on the backs, the children and lives of Black People and those who were murdering and robbing the native inhabitants of the country to press their property holdings ever Westward. And that was going on well before the Dred Scott decision that is so central to the issue of Supreme Court usurpation of legislative and presidential powers.
-----------------------------------
Going father into this made me think repeatedly of the career of the actor, director, etc. John Houseman who went from being the producer of the late 1930s communist bit of agit-prop tripe, The Cradle Will Rock to being most famous as the 1970s law professor in The Paper Chase, especially when it made the change from a movie to a TV series. As part of his new-claimed fame as the Yale teacher of contract law, he got a lucrative gig in propaganda commercials for the financial investment firm Smith-Barney in which he proclaimed in his Yale Law prof. voice that that bunch of crooks and their clients "made money the old-fashioned way, "they earned" it." As can be seen at the two links, the power of art even on its central producing figures is largely an aspirational fraud. I mentioned that before in mocking the reputation of that agit-prop "opera" in relation to the only reason it is ever remembered today, its stirring tale of suppression and resistance, the piece itself is crap, those never-ending tales show-folk love to tell about it even more so. Anyone who believes that "nothing is sacred" under an enforced secular regime is full of soup. The mandated pieties of even would-be hard lefty secularism are more strictly enforced than almost any under religion and they are often even more transparently a fake. And it only gets worse when the pseudo-religious lies are part of the mandated official mythology.
"The Law," especially constitutional law in the United States takes the place and functions as a secular state religion, with all of the clap trap of a costumed clergy, liturgical ceremonies, mysterious incomprehensible liturgical language and a commanded, forced piety that the actual fact of it not only doesn't warrent, it makes a mockery of it more times than not. That it is a "justice" or judge most frequently takes the ceremonial place of a minister or a priest in the most often clearly and false swearing to oaths of office - the breaking of which faith is never punished - is one of the most glaring pieces of evidence in that accusation.
The Federalist fascist Society scheme of court capture, so well exposed and evidenced by Senator Sheldon Whitehouse, flowing from the white-supremacist, segregationist corporate lawyer then Supreme Court "justice" Lewis Powell's plot to do what has been in the works since the early 1970s and which had its first fruits in the Rehnquist Court, including them handing the election of 2000 to George W. Bush when he lost the election (never should it be forgotten with the manipulations of his brother, Jeb, and his Republican-fascist administration of the election in Florida) and in rulings which paved the way for the further cementing of Republican-fascism into place through a Supreme Court staffed with those who took courses with the likes of that movie-TV law prof. That aroma of sanctity that surrounds the Supreme Court really stinks when you consider what it really is, it's like the sickly sweet aroma that is the first impression you get when you come across a rotted corpse, before you realize what it is and you retch.
I have been accused while presenting this series as calling for the disrespect and abolition of law, that is certainly not the case. I have repeatedly slammed anarchists and libertarians because they are like the worst of two-year-olds who insist that they can do whatever they want to and be as selfish and self-centered as they want to be, something which animates much of the "libertarian-never-Trumpers" as much as it does the Trump-fascist Republican-fascists as well as a huge chunk of the play-left who will never grow up and whose expulsion and dumping from the left I have repeatedly encouraged as part of our only hope of ever making life better. In the absence of decent, egalitarian democratic laws and their just administration, the gangsters take over and impose their own gangster law by force or con job or violence. That can happen under non-egalitarian, democratic government, it is almost guaranteed to to one extent or another, it is an absolute guarantee when principled, decent civil law enforcement is absent as it is so often is when the police do not serve a community.
I am in favor of correcting the clear and dangerous defects in the Constitution, in the corrupt Supreme Court, in the federal and other courts, in the culture, history and practice of lawyers and in the police who not only are charged with enforcing corrupt laws but who the Supreme Court in its arming of the fascists and psychotics with the most dangerous of modern weapons, have given an impossible job of protecting the residents of the United States from that Supreme Court criminal insanity. Nothing will change for the better until the Supreme Court is stripped from its usurped powers under discussion here, a lot of the worst of what we have now is a direct result of a corrupt Court exercising that usurped power and often for the most predictable and obvious motives no matter what their lying words in their corrupt majority decisions say. Lawyers are often rightly accused of being professional liars, some of the most successful of those liars comprise the majority of the Supreme Court, as they have in long stretches of its history. If their competence in lying is better than one full of incompetent ones doesn't much matter, not when what they say goes no matter what.
No comments:
Post a Comment