Dave Stryker (g), Jared Gold (o), Victor Lewis (d) Sponsored by Mike Starsinic Live at Smalls Jazz Club Venmo: @SmallsLIVE , www.smallslive.com
My electricity keeps flickering so before it goes for the day and as I'm not ready to post a radio drama, here's something great to listen to.
MY NEIGHBOR tells me about a young couple we know who both have Covid along with their two babies. From what he tells me of their symptoms it sounds to me like none of them are vaccinated. Chances are, according to what I read, they've got the Omicron variant because most of the cases are that, they don't sound like any of them, INCLUDING TWO BABIES are out of danger of dying and, especially the babies, out of danger of having long term, maybe life-long consequences for their vaccine hesitancy. Don't let anyone fool you that "omicron" is innocuous, it's killing thousands every day. Thousands of those suckered into remaining unvaccinated.
Republican-fascism and the media-legal support for it kills, it is a Molochite death cult. So is that kind of amoral libertarianism.
God damn the Roberts Court.
LONGTIME READERS OF what I post here will, no doubt, recognize in the next few paragraphs of Louis Boudin's text things which I've pointed out repeatedly on a number of issues, none so much as those he zeroed in on, those parts of human thought and academic scribblage that pretend to be science.
This brings me to another type of objection that will probably be made against the present work—namely, that I am not “disinterested," and my work, therefore, not really scientific. My answer to that kind of criticism has been given long ago by Dr. Johnson, in the admonition quoted by Mr. Coudert. There is no such thing as “disinterested" scientific work in any branch of science, and certainly not in the social sciences. There is, of course, a lot of pseudo-scientific writing—particularly of the “text” type which pretends to be disinterested. But the only time it is really disinterested in the kind of knowledge it purveys is when its interest is limited to the number of shekels it gathers. Whenever any work rises above that level, it acquires a scientific purpose and thereby ceases to be “disinterested." The distinguishing characteristic of a work of science is not that its author is “disinterested," but that the nature of his interest is such as to lead him to see the truth and tell it without reservations.
He astutely separates the substance of the "science" produced from the true motives of its production, in all too many cases, how much it will get the "scientist" who writes it. I would guess that in no other case other than, almost certainly, the pseudo-science of economics, is there a more direct common motive in what the "science" produced claims and the financial rewards expected for producing it than in the legal profession.
In doing so he distinguishes work which is produced merely for those baser motives and that which is produced for something higher, a desire to know and tell the truth and even higher motives that are the opposite of financial self-interest. It would be tempting to go through the use of that perverted virtue of economists and the legal profession "enlightened self-interest" and the inevitable distortion of morality or, as they will have it "ethics" come when motives other than the truth and the even higher motive to seek the common good for all are behind it. It is a pressing issue for the construction and preservation of egalitarian democracy, especially in an age when such outfits as the ACLU and other bastions of secular liberalism have duped People into going for a self-interested libertarianism, mistaking it and its goals and perverted goods for genuine liberalism of provision for the least among us, the common welfare and the provision of an equally distributed good life.
Unfortunately, many workers in our science, owing to the conditions of their work, often find it convenient, and sometimes absolutely necessary, to clothe their thoughts in seemingly disinterested language. This has had the unfortunate result of creating the impression that if a book calls a spade a spade—instead of using some circumlocution—it has somehow lost scientific standing. Needless to say, the impression is erroneous as well as
harmful. And since I am, fortunately, not compelled by the conditions of my work to make a virtue of the usual academic necessity, I have discarded the circumlocutions and suppressions which are usual on such occasions. This may prevent my book from becoming “required reading” in some colleges and universities, but it will help to bring home some truths which the usual circumlocutions tend to hide, or at least obscure.
This makes me remember nothing so much as that man of such demonstrated good will, Jimmy Carter whose administration sought to put official documents, so much as was in his power, into plain speech which legal lay-people had some hope of understanding without resorting to constant use of specialized dictionaries - which, of course, no one can tolerate doing for long. An attempt to make documents and the actions behind them comprehensible and, so useful to them instead of weapons to cheat and harm them. One of the early things that the Reagan administration did was to revert back to the obscure language so beloved by lawyers, both for its utility in duping and mystifying and cheating most people but, more so, making it necessary for them to hire lawyers at ridiculous numbers of dollars per charging-hour, making that profession a full participant in sleaziness.
Manner aside, the question is one of proof. And here I was confronted with a serious problem of mechanics or form. The major portion of the work is devoted to proving the proposition that our actual Constitution—the Constitution we live under—is not only different from what the Framers intended it to be, but also from what John Marshall said it was. But, as Mr. Coudert has pointed out, we pretend that “the Constitution is as unchangeable as the laws of the Medes and the Persians” and that we are still living under the Constitution of 1787. In order to keep up
that pretense, the courts have developed a technique which makes it extremely difficult for non-specialists to penetrate the veil of mystery with which the actions of the judges as the real governors of the country have been surrounded. The mere mass of words used is such as to make it impossible for an ordinary person to
digest them. The opinions in the recent case of Myers v. United States, which effected a revolution in our governmental machine, consist of about seventy-five thousand words. Who but specialists can be expected to read this mass of words, even if one could tell from a reading of them what it is all about? But in most cases one
can not. In order to be in a position to form a judgment on the matter in controversy, nay, in order to understand the significance of what is being done, one must be in a position to check up the given decision against many previous decisions. In other words, one must be a specialist.
If you are not already impressed with the unusual honesty and candor of Louis Boudin, this should do it for you. He gives it away as no lawyer I've read before ever did. The very structure of the legal profession is created to make it obscure for any but the few who have access to law school and a legal training when there is no reason for that other than those I've mentioned, both of which boil down to cheating the largest percentage of People, especially those without an advanced education.
Under these circumstances, the task of writing a book for nonspecialists, the sum and substance of which is, when reduced to its lowest terms, that the specialty itself is largely mummery and pretense, becomes rather difficult. When the Minimum Wage law was declared unconstitutional by the Supreme Court, Prof. Thomas Reed Powell of Harvard said in the Harvard Law Review:
“Literary interpretation of the Constitution has nothing whatever to do with it. Neither legal learning nor economic exposition can explain it. Arguments pro and arguments contra have no compelling inherent power. The issue was determined not by the arguments but by the arbiters. . . . The talk in the consultation chamber must often be very different from the talk in the published opinions."
How get behind the published opinions? Or, rather, behind their verbiage, to their real meaning? My solution of the problem was the application of the comparative-historical method. While a judge may, consciously or unconsciously, hide his real meaning as well as his motives behind a barrage of words, both his meaning and his motives become perfectly plain when looked at in the light of similar words uttered by other judges at other times in the course of our judicial history. My task was, therefore, nothing less than that of writing a constitutional history of this country—at least in outline—and of writing it, as far as possible, in the language of the actors who made it, the judges themselves.
I have yet to find extensive biographical documentation of the life of Louis Boudin, what fragmentary information I had about him before I started this and what I've gained since has led me to think he was a very rare and honest man of the political left. He was a Marxist theorist as well as a scholarly lawyer and an honest man. But he was the kind of Marxist in the years before and after the first Communist revolution, the one in Russia, who immediately saw that Communism in practice instead of in theory went extremely bad, almost immediately. He was a member of the far left of the old Socialist Party whose most famous appearance in history was when the far left broke up the old Socialist Party over "principles" but at the motivation of Lenin and Trotsky who wanted their agents to have control of it or to destroy it. He walked out of the emergency convention of Socialists with the John Reed faction but walked out of the alternative meeting saying he hadn't left a party of "crooks" to join one of "lunatics." He pretty much gave up leftist party politics, though he continued to write articles both theoretical and critical and practical. He was an anti-Bolshevist Marxist who, it is my impression, seeing communism in real life action became increasingly disillusioned with it and who, by the time he had seen Stalin and, I'd guess, his blood baths and show trials and his compact with Hitler, was totally disillusioned with Communism. If my impression is correct, by the time of this book, in the early 1930s, that process of disillusionment would have been well underway.
I think his declaration that he believed in democracy was sincere, I think his skepticism of democracy under capitalism and the florid, rampant corruption, inequality, racism, etc. that flourished in the United States he lived in probably accounts for why he was among those who mistakenly believed Marxism, with its pseudo-scientific basis in a Hegelian method of history was the way to a better life for all. I think this passage proves his disillusionment with that was well underway, having had a similar disillusionment with the secular-leftism I grew up with I think I recognize the thinking and that someone who has gone this far cannot remain what they started out being. His identification of pseudo-science within social science is something which could only have been known by him to be a relevant and fatal observation in regard to his former ideological faith.
P.S. I am tempted to go, again over James Weinstein's point made in his book The Long Detour in which he notes Louis Boudin's involvement with the Bolshevist's attempt to first take over then to destroy the old Socialist Party, the most successful socialist party in the history of the United States was repeated in his grand-niece Katherine Boudin and the destruction of the SDS by what would become the Weathermen and their allies. I will admit that the destruction of the old Socialists was a serious blow to the real, practical left, socialists had actually gained elected office under it and, in many places, made real life better for real people, so many of those who did that derided as "sewer socialists" for providing clean water instead of powerless theoretical purity. If the SDS would have ever developed that far, I tend to doubt, it was mostly a hobby of affluent white college students, though what came after in the Weathermen and the Weather Underground with their thrilling violence and callous stupidity, including the murders that Katherine Boudin was involved with and the town-house explosion that almost killed her and did, in fact, kill others of her comrades, set the real American left back more than anything the secular left managed to actually accomplish. In the mean time the religious left continued, though, as well, damaged by the secularists.
I will point out again that you don't have to like or admire Louis Boudin or to agree with his former Marxism to read his evidence, check it for factual honesty and accuracy and to go through his rigorous arguments to agree with him. I am sure Louis Boudin and I would have gotten into many arguments about many things but his honesty in presenting evidence and his rigor in arguing from it doesn't need that I agree with him on other things to gratefully acknowledge my adoption of his thinking.
Fats Navarro and his Thin Men: Leo Parker (bars), Tadd Dameron (p), Gene Ramey (b), Denzil Best (d). Recorded in New York, January 1947.
You have to wonder what he'd have played if he'd lived longer. Fats Navarro might be my favorite trumpet player of all time.
LOUIS BOUDIN, after the introduction I've posted already, extended his introduction to answer some criticisms he got for his book, I am posting that because the things he addresses are exactly the ones which I'm sure will be brought up to any proposal to effectively correct and reform the Supreme Court in the face of even its few decent members unwillingness to give up what they are used to, what they were taught was right and proper - even as they are some of the most constant witnesses to it being wrong and oppressive - and as idiots who believe what they have seen in movies, in TV shows and read in novels about the idolized and Potemkin false front presenting the Supreme Court as the temple of "Equal justice under law" when it is actually the tool of oligarchs, the wealthy and privileged and the white supremacists who are, as well, tools of the oligarchs and wealthy.
As he hints at, the system as it is is kept in place in no small measure due to it working for the rich and, so, powerful it works for, what finances and rewards the lying popular culture image of the Founders, the Constitution as it is and the various institutions it set up, the anti-democratic Senate, the Electoral College and, perhaps most of all, the Supreme Court, though as noted repeatedly, the Supreme Court created for itself, unratified by any state legislature, powers that even some of the Founders warned were dangerous even for the amount of democracy and equality they may have favored before the last of them, Madison, I believe, died in the 1830s.
IN the preceding introductory note, I have attempted to state the general purpose of this work. But I feel that I owe my readers — and some friends whose advice I did not take — an explanation with regard to the manner in which I went about the performance of my task. Perhaps the best way of doing it is to answer in advance some expected criticism.
The first criticism of this work which will naturally suggest itself relates to its purpose. The purpose of the work has already been stated. But a purpose ought to be practical. And what practical results can one expect from attacking the existence of the Judicial Power — particularly since the book does not suggest any remedy, any way of either abolishing or curbing it? The answer is that I believe there is a remedy or, rather, a choice of remedies but that I considered the discussion of remedies premature, in view of the fact that most people do not understand the nature of the disease from which our body politic is suffering.
One of the best-known liberal judges of this country, who knew I was working at my task, once asked me, with a shrug of the shoulders ‘What’s the use?” This question and shrug of the shoulders is typical of the attitude of our liberals towards the Judicial Power. It is based on the firm conviction that a frontal attack upon that Power is hopeless. The logical result of this conviction is a program of prayer. We must pray—and occasionally argue—for good men in the seat of power. I am at once more optimistic of the situation as a whole and less so about the efficacy of prayer. I do not think that the prayer for good men is of much use once we dare not attack the foundations of the power which these men wield. On the other hand, I think the case is not quite as hopeless as the noted judge’s question would indicate. I believe that if the Judicial Power is impregnable —and I am ready to admit that it is so to all appearance— it is due largely to the unwillingness of liberals to fight which is also indicated by the same question. I confess to being old-fashioned enough to believe in old-fashioned democracy. What is more, I believe that the people of the United States are not ready to abdicate their right to self-government. And if they have actually done so—and this book proves that they have—it is because they did not know what they were doing, and still do not know what has actually happened to them. The Judicial Power is based not so much on an initial act of usurpation as on continued ignorance as to the actual workings of our governmental system, which leaves the illusion of self-government while destroying its substance. It is my belief that if the true inwardness of this system were to become generally known its days would be numbered, unless, perhaps, the “good men" were put in power by the beneficiaries of the system as a means of saving it.
This makes my purpose practical. It also limits my task. If I succeed in bringing home to the people the true nature of the system I am attacking, they can be relied upon to take care of the question of remedies. My task, as I conceive it, is best expressed by a statement once made by the late Frederick R. Coudert, staid and conservative leader of the bar:
“As Dr. Johnson says: "Let us rid ourselves of cant;" let us not do one thing and say another; let us not act upon the theory that the Constitution is as unchangeable as the law of the Medes and the Persians, when it is being constantly changed by judicial interpretation, in many respects quite as effectually and much more easily than it could be by amendment in the prescribed form.”
(Certainty and Justice, p. 60.)
When Boudin says:
I do not think that the prayer for good men is of much use once we dare not attack the foundations of the power which these men wield.
that, I presume, atheist made a very potent and righteous religious critique of the act of praying as popularly imagined by religious people. I have pointed out a number of weeks back that when Christians pray "Your Kingdom come, Your Will be done," they are praying for governance superior in equality and justice to any human created scheme of government, even the best one available at the time of its creation because rule according to the Will of God is bound to be superior in every way. THAT IS CERTAINLY NOT ANY KIND OF THEOCRACY BECAUSE ANY THEOCRACY IS RULE BY AN, ULTIMATELY, SELF-PERPETUATING AND SELF-INTERESTED CLASS OF HUMAN BEINGS. There is a reason that Jesus said his Kingdom is not of this Earth. It is an aspiration for something which no human government will be.
That said, whatever Will of God that is to be done on Earth will be done through God's creatures, in regard to anything that human beings can articulate as a code of conduct of human affairs, that Will will be done by us, in our imperfect and inadequate ability to carry that out.
I think that in a country in which the large majority of citizens and others are religious believers, by a large majority believers in the Abrahamic religions or other religions that, I for one believe, are an expression of a similar understanding of the ultimate reality, the point I just made is essential for any progress.
Americans will never change the corruption that was created by the slave-owners and self-interested financiers who wrote the Constitution, wrote the laws that were adopted under it and, in the case of the Supreme Court the lawyers who gave themselves powers to destroy democracy continually by thwarting laws that a more legitimate body adopted and were signed into law by the executive, all of those elected and all of them able to be cast out of office by The Voters. As the lecture by Paul Finkelman linked to the other day noted, from the start of the Supreme Court the personal wealth and class interests of the slave-owner "justices" had an obvious and direct effect in them wielding their powers, impregnable under the tragically flawed system of the Supreme Court. The Founders' remedy for wrongdoing through impeachment was one of the first things that was definitely shown to be most obviously ineffective in the early 1800s as it so obviously is today when we cannot even impeach an obvious felon, would-be and nearly was dictator and scumbag due to the other defects of putting that power in the hands of a, first, unelected, then an elected but still outrageously anti-democratically constituted Senate.
I hope either that Louis Boudin's optimism about democracy is right and we finally get over the Hollywood, pop-history bull shit that we must forever put up with the corruptions baked into and sprinkled on top of our Constitution and change things for the better as a whole or that those sections of the country which,. in a majority, want equality and democracy once and for all separate ourselves from those who don't, in the majority, and form actual egalitarian democracies from the ruins - TAKING INTO FULL ACCOUNT WHY THE PROMISES OF THE DECLARATION OF INDEPENDENCE FAILED IN THE CONSTITUTION THAT THE FOUNDERS GAVE US AND THE FURTHER CORRUPTIONS PUT ON IT, NONE SO BAD AS THOSE THE UNELECTED MEMBERS OF THE SUPREME COURT HAVE FOISTED ON US.
LISTENING TO DAHLIA LITHWICK and Neal Katyal waxing romantic about Stephen Breyer during the week I'm going through Louis Boudin's far harder and cooler look at the Supreme Court is rather stomach turning. Lithwick talking with Rachel Maddow talking more in sorrow over Breyer's silly idealistic refusal to admit that the very courts he has sat on are political tools of Republican-fascism mixed with Katyal talking even less realistically about him to Lawrence O'Donnell AND HIS RIDICULOUS ADVOCACY FOR BIDEN GOING SLOW as to honor Breyer is pretty infuriating. That amber tinted, soft focus lens I talked about the other day is the one that is reached for whenever the Supreme Court is talked about when the topic isn't their many rulings against the common good and for the oligarchs and even some time when it is.
The media habits in regard to its presentation of the Supreme Court are what make the public accept the outrage of that court as the ultimate road-block to equality, to economic justice, to fairness, to environmental protection. Stephen Breyer's ridiculous assertions over the past year about the character of the Court was made with the same ridiculous romantic assertions about it made in terms of its allegedly idealistic performance and motives. I would say they are anachronistic due to the fact that that court doesn't exist anymore but that would be the wrong word BECAUSE THAT COURT NEVER HAS EXISTED.
I think people don't realize that because the law is opaque and often not easily understood by lay people due to both its complexity AND THE FACT THAT LAWYERS AND JUDGES PUT A LINGUISTIC VEIL OVER WHAT THEY DO with their lawyerly often liarly language. Because of that, like much of science reporting, the public presentation in both reporting BUT EVEN MORE SO IN ENTERTAINMENT MEDIA is often wrong and frequently contrafactual. The absurdity of so much of what is held about the Court is made obvious by even a moderately deep look at the "justices" and considering their prejudices, their biases, their self-interest and that of their professional and personal friends, allies, patrons and family members. I would bet the occasions in which the privileges of any of them are put at serious risk by the rulings of that court are few to none.
I will proudly take my place among those who are extremely critical of Thomas Jefferson and the rest of the friggin' framers but when he was right he was right. As in that letter quoted the other day it is clear that after seeing the government he helped form in action for almost three decades, he saw that the Supreme Court as it was constituted was the most dangerous of the branches of the government. As Louis Boudin noted, it became steadily more dangerous in the years after that. Today we are about to see six Republican-fascists rigged onto the court by the Republican-fascists and such oligarch financed operations as the Federalist Society destroy the hard work of the Civil Rights movement, the Environmental movement, the Labor movement, Womens' Rights movement, etc. by fiat of five or six of them. And the way that the founders founded things, they have that power by their own say-so, not on anything written in the Constitution that, as seen in the posts yesterday, they regularly override with no stopping them.
Stephen Breyer is a romantic, not a realist. His brilliance is in mastering a set of given facts and fantasies, such as serve a life in the law. Perhaps the fact that the civil law is an entirely artificial, man-made structure with man given power makes it more prone to become corrupt due to those fantasies being replaced for facts and the fantasies being what is taken as the proper and serious thing, not the effect that those fantasies made law by Supreme Court fiat override things like Congressional fact finding. He may not have the character flaws that constitute the predisposition of the majority of his colleagues to do evil but his willful ignorance of what they're up to is his character flaw, one encouraged by the mythology and fantasy encouraged about the Supreme Court and "the law".
HERE IS A LINK to the 1911 paper of Louis Boudin. Government By Judiciary which he developed into his masterful book on the topic. It is worth reading in itself, showing what a good scholar he was in abbreviated form, though, of course, a 33 page paper can't do what two large volumes can. It can make some of the arguments in a more easily digested form.
Ideally I should be linking to all of the records of all of the cases and other things Boudin cites so you can read them for yourselves but this is going to be a huge amount of work as it is. I am certain that I won't be able to go over his entire two-volumes, I may pick and choose parts of it to go over though I have yet to find a passage in it that isn't worth consideration.
I will point out something in it about the infamous Lochner case which has been brought to mind because the Republican-fascists on the Supreme Court have been set on a course to abolish more than a century of hard fought progress in labor rights and other rights bringing us back to the appalling status quo of 1911 when Louis Boudin wrote this:
Under the old rules of interpretation, which limited judicial inquiry to the matter of legislative competence, these two cases must have been decided in the same way. Either both laws were constitutional or they were both unconstitutional. In the earlier case, Holden v. Hardy, the Supreme Court decided that the state legislature had the power to pass a law limiting the hours of work in any industry when it-the legislature-came to the conclusion that longer hours would endanger the health of those employed in that industry. It followed as an irresistible conclusion that the bakery law was constitutional, the legislature enacting it having come to the conclusion that it was necessaryfor the protection of the health of those working in bakeries.The decision in Lochner v. New York, declaring that law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers. They could not understand it. They accused the Supreme Court of inconsistency. But the truth is that the court had discarded the old rules of constitutional interpretation and had adopted an entirely different theory. An examination of the dissenting opinion in that case, when it was before the New York Court of Appeals, and of the prevailing opinion in the United States Supreme Court, clearly shows this shifting of ground. Under the new rule of interpretation, it is no longer a question whether the legislature has the power to limit the hours of labor, when it determines that such a limitation is necessary for the health of those engaged in a particular industry; the question is whether that power has been wisely used. The power of the legislature is conceded, but its discretion is reviewed and is determined to have been improperly exercised. The legislature has found that work in a bakery beyond a certain number of hours is dangerous to health. But, says the court, we don't consider it so. And it was their judgment on the matter of the healthfulness of work in a bakery, not their judgment on the constitutional power of the legislature, that led five out of the nine judges to declare the law unconstitutional.
He further points out the whimsicality and arbitrariness that is typical of Supreme Court made law and the fact that in doing all of this the Supreme Court through its self-given power of judicial review and having a swing vote fomenting a revolution that overthrows the actions of elected government and, more often than not, grants victory to the rich and privileged over common people.
Another glaring instance of the open assumption of legislative discretion by the judiciary is furnished by the recent decision of the United States Supreme Court in the case of Mullerv. Oregon. In that case the Oregon statute under consideration limited the hours of work for women in "mechanical establishments, factories and laundries," to ten hours a day. This law was declared constitutional "as to laundries." The Supreme Court conceded the power of the state legislature to limit the hours of work for women, on the ground that "as healthy mothers are necessary for healthy offspring" the health of women is a matter of special concern to the state. And yet the court limited its approval of the exercise of that power to the case of laundries, reserving to itself the right to declare the law unconstitutional as to "mechanical establishments" and "factories" if it should conclude on future investigation that the state legislature had made an unwise use of its conceded powers as regards such establishments.
Approval of the decision in Muller v. Oregon as a matter of legislative policy, because of its effect upon the condition of the working class of this country, should not blind us to its significance as regards the distribution of political power in our governmental system. In the latter respect it openly, I may say almost defiantly, maintains the position that to the judiciary belongs the supreme control of all legislation and that it means to use it. To say, in the face of these decisions and the many more that could be cited but for lack of space, that our courts do not exercise any legislative power, seems like adding insult to injury. And it is certainly a strange commentary on Judge Lurton's declaration, that the judicial power insures to us "a government of laws and not a government of men," that within three months after the publication of these words the New York court of appeals rendered a decision ' which led the editors of two important magazines to the doleful conclusion that nothing can help us-not even an amendment to the Constitution-except the election to the judiciary of proper men, not men learned in the law and in the Constitution, but men with a knowledge of life and plenty of common sense. These editors meekly accept the political situation created by the latest phase of the development of the judicial power and merely suggest a remedy for our social and economic ills on the basis of that political situation. But the great question before the people of the United States is: Shall we permit this political situation to become firmly and irrevocably established? Shall we permit this great revolution in our political institutions to take place undisputed? And the question before our leaders of thought is: Shall we permit this revolution to take place without even calling the attention of the people of the United States to its momentous character?
Obviously, through the ahistorical and absurd reverence as taught in civics classes, through the romantic and absurd presentation of the Supreme Court in a soft-focus, amber tinted lens and, to people who know better, emetic of pious lies we have been suckered into permitting it BECAUSE THE PEOPLE WHO HAVE CONTROL OF THE MEDIA BENEFIT THE MOST FROM IT. I would hold that Louis Boudin went too easy on "justice" Holmes even though his pointing out his two-step on the question that is at the heart of his critique is far more rigorous criticism than Holmes is ever subjected to by just about anyone else.
The Supreme Court is about to undo all of the progress of the last century and more while leaving a false front of that to sucker the suckers. They've been at this a long time. As I've had to point out to a lot of people online since I started writing, Earl Warren's been dead a hell of a long time and if you look honestly at the atypical record of his court it is an outlier that was often as bad as whatever good he and his colleagues did is a mixed bag. The pieties built up over the reputations of such "justices" as Holmes and Brandeis and the Warren court are dangerous absurdities when you have a fixed Republican-fascist majority set on destroying equality and decency and have their eyes set on rigging electoral democracy for their party and the economic elite it works for.
If we are going to have an egalitarian democracy there is no question but that we have to have a revolution that strips the court of its power to do what this one and the ones before it have done repeatedly. There is no limit on what they won't do to reach their predetermined ends, the ones they lied through their teeth about under oath during their confirmations as every single person in the Senate knew they were lying through their teeth.
Update: Thinking about this I wondered if the reason they allowed the regulation of work in laundries and not in factories isn't directly a matter of real or perceived benefits to the wealthier class who were far more likely to own factories whereas laundries were probably more likely owned by those of far more modest fortunes. Not to mention the likely racial-class differences between the class who owned factories and those who were more likely to own laundries in 1908 when the Muller v Oregon ruling was handed down. I think it's never the wrong question when you consider both the level of wealth and, even more so, the race and ethnicity of those who the Supreme Court "justices" imagine will benefit from their rulings or be subjugated by them. As the lecture linked to yesterday pointed out, even when there is not a technically corrupt self-interest in a case, the economic or other interest of the "justices" even the most lauded and admired in history certainly is reflected in their rulings. I am tempted to transcribe a large chunk of the lecture in regard to John Marshall's self-interest as a slave master, one cold blooded enough to have recorded his resentment of a slave who died and whose burial he had to pay for, not recording his sorrow over a life lost but an investment lessened.
LOOKING WITH only slightly rested eyes at what I posted this morning, I have apologize again by pointing out that what I am taking this from is the machine generated text files of the books which I got at Archive.org. The pdf file of the first volume I downloaded took so long to download from a library in India that I downloaded the far faster to download text files. I mentioned that in one of my recommendations that people read the book a couple of months back.
Going back to download the pdf of the second volume, those seem to have disappeared and you can only get access right now on a "Books To Borrow" basis which is certainly far less accessible for the kind of work I want to do on them. It is curious that that change happened after my recommendation, though I don't know if it's a permanent issue or if it has anything to do with my recommendation. Sometimes coincidences are coincidental. Though as things are developing I wouldn't say paranoia is entirely unwarranted.
Enough for dark humor that isn't that funny.
Louis Boudin at the start of the 1930s was pointing out that those lies were were all piously taught, which were constantly reinforced by the pieties surrounding the cult of the Constitution and the sacralized Supreme Court were already well known by informed lawyers to be lies back then. Not only back then but, as the quote from Jefferson proves, they were known a hundred ten years before Boudin wrote, expressed by the first man whose administration was the loser in Marbury v Madison, the case that started the avalanche in Supreme Court legislation from a bench of unelected lawyers that held itself able to overpower the Congress who were elected by the alleged ultimate power and legitimizers of government, The People.
He points out a number of times that on occasion one of the Supreme Court members, frustrated with their fellow Justices would give away the game while, on other occasions, going along with the Supreme lie that all they were doing was following the words of the Constitution, at times pretending to take the legislative record into account.
The recent article I cited in regard to Supreme Courts, from the man who made liberals rather stupidly superstitious about the actual nature and history of the Supreme Court, Earl Warren, through his far more conservative successor, Warren Burger and his voter-intimidating, racist, Republican-fascist successor, William Rehnquist did something similar in ignoring the 14th amendment and the legislative history that proved their decisions not only negated laws, THEY NEGATED THE ACTUAL LANGUAGE OF THE CONSTITUTION WHEN IT SUITED THEIR PREFERENCES.
The actual history of the Supreme Court would make the corruption of the husband of Ginni Thomas so much in the news this week look pretty much par for the course, if a little more obvious to lay people. Obvious and serious corruption started with the generation of John Marshall when over and over again the Court made rulings against the rights and freedom of Black People on behalf of the institution that they participated in and profited from, slavery. You should listen to this lecture, Supreme Injustice, by one of the greatest living American historians, Paul Finkleman. He points out that by the time Roger Taney wrote the infamous Dred Scott decision the Supreme Court had set the record and handed down the decisions that make what Taney said in Dred Scott "settled law." He shows that that kind of judicial influence through making the traditions and habits of the legal profession which are held up as a virtue was a powerful enough force of influence and genteel coercion that it was capable of turning an anti-slavery "justice" into a supporter of slavery as it did Story, one of Marshall's colleagues.
The history of rottenness on that most adulated, idolized, lied about branch of government is actually as sordid as the worst episodes in the other two branches. Only, since federal courts have lifetime appointments, many members of it holding onto their office well into their senescence, the method of correction that Jefferson said made the excesses of the Congress less dangerous, them losing elections and losing office doesn't cleanse and correct the Supreme Court. You can look directly to that fact for why the Supreme Court is the only Court in the federal system which is not subject to a real, effective ethics code, one which would not have the kind of self-interest that Clarence Thomas practices present on an ongoing basis.
I AM OVERLAPPING with the last paragraph of Louis Boudin's introduction to Government by Judiciary I posted last time because it is necessary to understand what follows:
Unfortunately, the official theory does not at all tally with the facts. The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason of such disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject. So much so, that to declare laws unconstitutional has become a matter of almost daily routine for the judicial machine, and “unconstitutional” has become a “term of art,” as the lawyers call it, a facon de parler, a manner of speaking, the real meaning of which is: “We, the judges, think this is a bad law.” The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the judges' exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.
This is well-known to the elite of the legal profession, who speak of it more or less openly in the professional press. It is also stated occasionally by judges, usually in dissenting opinions, and almost always in technical language not easily understood by the uninitiated. But recently Mr. Justice Holmes has been goaded by his brethren on the Supreme Bench into saying it without circumlocution in plain and forceful English. In a dissenting opinion in the case of Baldunn v. Missouri, (281 U.S. 586), decided on May 26th, 1930, Mr. Justice Holmes, (Justices Brandeis and Stone concurring), said:
“Although this decision hardly can be called a surprise after Farmers' Loan & Trust Co. v. Minnesota, 280 U.S. 204, and Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, and although I stated my views in those cases, still, as the term is not over, I think it legitimate to add one or two reflections to what I have said before. I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred.”
It is the correctness of this statement of the great Associate Justice of the United States Supreme Court, that there is “hardly any limit but the sky” to the power of the Judiciary because the Constitution has ceased to be the measure of “constitutionality,” that these volumes prove, by giving a circumstantial account of the most
important judicial decisions during the past forty years. But these volumes do more than that: They cover the history of more than forty years, and consider more than the “constitutional rights of the States.” They give a fairly complete history of the growth of the Judicial Power, from the first modest assertion of its rights by John Marshall as a necessary “last resort” power—to be resorted to in extreme cases in order not to make the courts participants against their will in legislative defiance of the Constitution to its present position of command, when it can, and does, bid defiance to the people and the Constitution, so that its most distinguished member must repeatedly rise in protest and cry out in anguish that there is “no limit but the sky” to what it may and does do, since the Constitution no longer furnishes any restraint upon its action.
And in the course of this history, it becomes apparent that it is not even a question of “strict” or “liberal” interpretation of the Constitution. With the disappearance of the Constitution as the measure of “constitutionality,” these terms, which played such a great part in old-fashioned histories, have lost their meaning. While judges still divide into “schools,” these schools are not the result of different methods of interpreting the Constitution, but relate to the judges' general outlook upon life, chiefly economic life. Hence we find judges who in one case favored what might be called a “strict construction’* of the Constitution adopting in another case what used to be called a “liberal interpretation” of that document. The alignment —whenever there is an alignment— is seldom, if ever, based upon some particular method of constitutional interpretation; the line of division usually being some economic or political assumption or predilection which determines the judges’ opinion as to what is desirable or undesirable in legislation, or in the power to legislate which ought to be permitted to legislatures.
It is part of the official theory that the right of the courts to declare laws unconstitutional is necessary to the end that this may be a government of laws and not a government of men. Mr. Justice Holmes’ last statement not only proves our government to be one of men, but stamps it as one of irresponsible men. And of that, too, these volumes furnish abundant proof. For the details of our judicial history, recited in these pages, show how decisions of the gravest political consequence, decisions affecting the welfare of the people and the destinies of the country, frequently depended on the will or whim of some one Man, or on the accident of whether this or that Man happened to sit in the seat of power. A careful review of the facts of our history on this showing forces one to the conclusion that the only real difference in this respect between our government and the governments of other civilized countries is that in other countries the Men are accountable to the people, and their decisions subject to be revoked and reversed by the people; while in this country the Men who wield the real power of government are not accountable to the people, and their decisions are irrevocable and irreversible except by themselves. The net result is that we are ruled frequently by dead Men (not, however, the dead “Framers," but generations of dead judges), and always by irresponsible Men,
New York, May, 1931,
The proof of what Boudin said about the Constitution being the plaything of the "justices" on the Supreme Court and, especially, those who manage to be in a working majority might best be shown by an article dealing with the further use of the 14th Amendment against the most basic rights of individuals, written almost 90 years after he wrote his introduction. A use of an entirely different character than what Holmes complained about then.
From: The 14th Amendment Was Meant to Be a Protection Against State Violence
The Supreme Court has betrayed the promise of equal citizenship by allowing police to arrest and kill Americans at will. By David H. Gans
The Fourteenth Amendment effected a fundamental transformation in the constitutional law of policing in two respects. First, it required states to respect basic fundamental rights, including those to life and personal security. State police could not indiscriminately search and seize Black Americans. Second, as Senator Jacob Howard—one of the amendment’s framers—explained in congressional debates, its guarantee of “the equal protection of the laws” demanded “one measure of justice” for all persons, regardless of race. The requirement of equal protection ended “the injustice of subjecting one caste of persons to a code not applicable to another,” according to Howard.
Together, these guarantees sought to put an end to racialized policing practices. In doing so, the Fourteenth Amendment embedded directly in the Constitution the idea that violence against Black people must stop. This reflected the obvious and most basic truth that bodily integrity and security are fundamental to freedom. The Fourteenth Amendment struck at centuries of history that permitted Black bodies to be violated indiscriminately, instead promising personal security to all. Open-ended police power, the framers of the amendment recognized, was a tool of racial oppression and violence. Equal citizenship and true freedom could not be enjoyed without limiting police abuses.
The history of how the amendment came to be reveals that foundational promise. In 1866, Congress formed the Joint Committee on Reconstruction to investigate conditions in the South. Some of the leading lights of the 39th Congress, including Senator Jacob Howard and Representatives John Bingham and Thaddeus Stevens, served on the 15-person bipartisan committee. The committee took testimony from white southerners, Black Americans seeking to enjoy freedom for the first time, and Union officers working in the South, learning firsthand of the gruesome violence and systemic violation of fundamental rights. The committee drafted the Fourteenth Amendment, and its findings and the testimony it heard bore directly on the amendment it wrote.
The committee’s report—released in June 1866 and widely distributed across the country—made the case for securing “the civil rights and privileges of all citizens in all parts of the republic.” If southern states were left to their own devices, Black people “could hardly live in safety” and “acts of cruelty, oppression and murder” would flourish.
Five different kinds of police abuse of power were detailed in the report: home invasions, theft of personal property, indiscriminate and pretextual arrests, wanton state-sponsored racial violence, and a refusal to protect Black people from private violence. In all these ways, the police and the criminal-justice system functioned as a lever to take freedom—and even life itself—from Black people. In vivid, terrible detail, the report cataloged how police officers acted “in respect to violence and ill usage, in every way equal to the old days of slavery”; how they arrested Black Americans as vagrants “simply because they did not have in their pockets certificates of employment from their former owners or other white citizens”; and how the police “go in squads and search houses and seize arms,” fleecing Black people of their possessions.
Police brutality and murder escalated in the summer of 1866, as Congress completed its work on the amendment and the ratification process began. In Memphis, Tennessee, and New Orleans, police officers led bloody massacres that left hundreds of Black people dead and many more badly beaten. These acts of murder and pillage, led by the so-called chosen guardians of the public peace, convinced Americans that the Fourteenth Amendment’s sweeping guarantees of fundamental rights and equal protection were necessary to redress state-sanctioned violence and inequality. As an investigation of the New Orleans massacre concluded, without new protections, Black Americans would continue to be “hunted like wild beasts, and slaughtered without mercy,” and police would continue to murder innocent men and women “with entire impunity from punishment.”
This history has been brushed aside. The Supreme Court has betrayed the Fourteenth Amendment’s promise of equal citizenship by allowing police to stop, seize, arrest, beat, and kill Black Americans at will.
For example, stop-and-frisk policies, first upheld by Earl Warren’s Supreme Court in Terry v. Ohio and repeatedly expanded during the Warren Burger and William Rehnquist Courts, permit the police to subject people of color to arbitrary, degrading, and humiliating intrusions on a regular basis. The upshot is that stop-and-frisk bears a startling resemblance to the enforcement of vagrancy laws that the Fourteenth Amendment took aim at. However, by turning a blind eye to the Fourteenth Amendment, the Court has allowed racial profiling to run amok. The Court consistently ignores the role of race, even as it pervades policing.
As we have seen so often, what begins with a stop often ends in brutal police violence. In fact, as the killings of George Floyd, Eric Garner, Philando Castile, and many others show, police stops for trivial offenses can easily end in death for Black people. But the Supreme Court has never recognized that ending state-sponsored racial police violence was a core purpose of the Fourteenth Amendment. Instead, it measures whether police violence is permissible according to a hazy “reasonableness” standard. By blessing police violence if reasonable—without any showing that it is necessary to respond to an imminent threat—the Court has allowed the vicious cycle of racist police violence to repeat.
The Supreme Court has simply refused to take the Fourteenth Amendment’s text and history seriously. It is a basic idea that we can better understand the meaning of the Constitution by looking at the context of its adoption and the abuses it aimed to eliminate. The Supreme Court does this regularly. But, in a vicious form of selective originalism, the Court has ignored that ending police abuse, including police violence, lies at the core of the Fourteenth Amendment. As police officers continue to destroy innocent lives, the Court has concentrated more and more power in the police.
Liberal or conservative, "constructionist" or whatever, Warren or Berger or Rehnquist, they lie about their consideration of the legislative record, they lie about the text as they put their preferences or predilections or prejudices above the very Constitution they claim to exercise their will on behalf of protecting it and the People that that document is supposed to serve. While the Supreme Court has generally and always been devoted to the protection of surplus wealth of the class to which its members belong or aspire to belong, they have never been exactly careful about protecting the lives of those the power of government routinely kill. As the author points out, especially if those are members of the underclass or racial and ethnic minorities.
They can make the same text mean whatever they want it to mean for whatever occasion they want it to mean that for. Putting themselves, a body of always fewer than 10 without the ability to do what David Gans proved the Congress did in drafting and adopting the 14th amendment, gathering real information about real life that isn't hemmed in by the habits of tidiness that the Supreme Court primly defines reality by. That is how you can get Supreme Court members unbothered by the probability that a state is about to execute what may well be an innocent person on the basis that they missed an arbitrary court deadline for filing paperwork or a "justice" making jokes about painful methods of execution from the bench without their fellow "justices" so much as censuring them.
The Roberts Court is in the process of ripping up a century and more of reforms sending us back to the most florid periods of corruption in our history using the ersatz virtues of legal babble to do it with. They deserve to bring all of the rot that Boudin listed in his massive study of Supreme Court down.
You might want to also consider the letter of Thomas Jefferson to Thomas Richie on December 25, 1820 that the "sappers and miners" phrase comes from:
I ascribe it to the inattention of Congress to it’s duties, to their unwise dissipation & waste of the public contributions. they seemed, some little while ago to be at a loss for objects whereon to throw away the supposed fathomless funds of the treasury. I had feared the result, because I saw among them some of my old fellow laborers, of tried and known principles, yet often in their minorities. I am aware that in one of their most ruinous vagaries the people were themselves betrayed into the same phrensy, with their Representatives. the deficit produced & a heavy tax to supply it will I trust, bring both to their sober senses. but it is not from this branch of government we have most to fear. taxes & short elections will keep them right. the Judiciary of the US. is the subtle corps of sappers & miners constantly working underground to undermine the foundations of our confederated fabric. they are construing our constitution from a coordination of a general and special governments to a general & supreme one alone. this will lay all things at their feet, and they are too well versed in English law to forget the maxim ‘boni judicis est ampliare jurisdictionem.’ we shall see if they are bold enough to maintain the daring stride their 5 lawyers have lately taken.
I WOULD VERY much like to see a production of Marty Chan's play Bone House. Which seems to make a criticism of the media (cabloid TV, specifically) sensationalizing of serial murderers that I made in some blog posts about the same time he was writing it. Of course I'd welcome a radio drama version of it if the author wrote the script and the actors and director were good and followed his intentions.
My question was if they ever asked themselves how many of the sickos watching their "true crime" programs were watching them for encouragement and ideas to put into practice and whether or not anyone involved would care if they knew that there were serial killers in their audience share.
An audience comes to hear a lecture about serial killers. Self-proclaimed mind hunter, Eugene Crowley, recreates gruesome murders to convince the audience that a serial killer is on the loose. As the lecture progresses, the audiences suspects Crowley might actually be the killer himself. But before they can act, members of the audience are shuffled throughout the lecture hall so that they sit beside strangers. Crowley presents his final proof, an inkblot that the audience must scrutinize for a full minute. The lights are turned off and the negative image of the inkblot forms the face of the killer. However, in the blackout, the true killer makes his presence known and proceeds to eviscerate Crowley, leaving the audience’s imaginations to create the picture to go along with the sounds and sensations in the dark. This play is a psychological experiment about the nature of fear, imagination, and deification of serial killers.
Update: What can I say? I like to do a bit of reading and get bored with only reading the same kind of stuff. What'reya gonnna make of it? .
WHEN I WRITE something as long as these last two posts I do it on a text editor because I need to get rid of the formatting of quotes that I cut and paste to preserve accuracy. The spell-check for the text editor I use is old-fashioned and clunky and doesn't have a very big vocabulary so it often doesn't catch things. I am, as announced, fairly indifferent to the standard spelling of the English language so I'm rather shameless. My misspelling the Powell's first name is due to the fact that I type these things in my spare time - most of the time I spend on this is researching and reading and checking citations - and I don't have that much on Tuesdays.
I'm not going to lose sleep over misspelling a segregationist-fascist's first name, I'm too busy looking for more important things when I come back and get around to fixing my bigger errors.
I'd rather get the evidence and reasoning fairly right than get fussed about the mechanics of writing.
Eighteenth Burmaire, refers to a date by the silly French Republican calendar, the date of the supposedly bloodless coup by Napoleon and other military officers taking over the government of France from the rump of (their fellow) revolutionaries as those boobs who were left after the repeated fratricide of those governing under the banner of "Liberté, égalité, fraternité" as the liberty lovin' brothers individually and through their factions, sought to gain unequal power for themselves, imprisoning their political rivals (depriving them of their liberty) and chopping off their heads, lost steam. The lesson of revolutions is they are as likely to produce a mockery of their announced ideals almost as soon as they are won, it is one of the most unreliable means of changing life for the better that there is. America's did nothing to cleanse us of our original sins of slavery, subjugation of women, etc. That said, the rarity of a hero of a revolution such as Washington was here, relinquishing power to a regular order of somewhat democratic succession, is sufficiently rare as to justify at least that act of his even as his many other character defects, slave-owning, genocide, etc. show the wisdom of not allowing the kind of self-granted power that Napoleon got for himself, making him a hero to many though many were put off when he crowned himself emperor. A point that even the often meat-headed Byron was smart enough to notice.
I think it's entirely justified to make a comparison of the Supreme Court's self-granted powers which appear nowhere in the Constitution to the act of Napoleon in making himself a dictator though translated to American English. The present day Supreme Court, led by a man who started the restoration of American apartheid in his destruction of the Voting Rights Act but who realizes if his fellow Republican-fascists go too-far, too fast people will notice the restoration of enough of of the program of the billionaire-millionaire oligarchs too fast that it will give the game away. Roberts wants us to acclimate to oligarchy like the frog in the heating pot hoping enough will be lulled into complacency before we boil.
I find myself hoping that they are so outrageous in their ambitions to destroy equality and self-government that there is a reaction that will once and for all end what Marshall started on February 24th, 1803. I'm hoping the backlash to the destruction of Roe v. Wade, the re-imposition of American apartheid and the myriad other evils they are delivering for their patrons and the members of their economic class will end with term limits, lifetime bans on having a financial interest in matters they adjudicate, real and binding and career ending ethics codes and an honest method of choosing members of that court. I hope it ends in the exposing and discrediting of masses of corrupt Supreme Court and other precedent and of the corrupt conspiracy started by Louis Powell and pushed by the Federalist fascists and Republican-fascists.
Boudin proves his case in his two-volumes quite convincingly, I fully believe this is the case
It is our contention that Marshall’s act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the courts' own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is.
That bad as John Marshall's original usurpation of power for the court (I have no need to be as circumspect in that as Boudin chose to be) was, it became steadily worse in use by future Supreme Courts which went way beyond the theory that Marshall justified that Supreme Court amending of the Constitution with. I think his argument is obviously true, that the steps taken to increase Supreme Court empowerment as of a century ago has, entirely, gotten out of hand.
The motivation of Louis Powell for laying out his mapping for the "Court Capture" in the 1970s was his hostility to the Civil Rights movement as its demands went from a theoretical "level playing field" to the demand for real equality. I don't think it would be at all unfair to say that he, like Roberts is a genteel segregationist at heart, though they may tolerate a few Black People of the acceptable type on occasion. This paper certainly makes a good case that in the years up to what should be a deservedly infamous plan to capture the court for the oligarchs such as himself and Roberts was his hostility to the Civil Rights Movement, though I would go much farther and say that like almost all Supreme Court made law - apart from the few things done in the Warren Court that break that mold - it was a means of establishing actual inequality in real life through the mere language of equality and the lie of judicial impartiality.*
The lip-service paid to the Brown v Board of Education ruling by the Warren Court is belied by the fact that schools desegregated under it quickly became resegregated by various means, economic inequality being one of the most potent means of reimposing a de facto American apartheid in even public education in most places.
The fury and rage of the American elite over integration at the most elite of training grounds for the ruling class, such as the case to destroy affirmative action through Harvard, the announcement of which inspired me to start this discussion, shows how they will protect those private bastions of reliable class branding even though they were ready to relinquish the public schools on a lower level, at least theoretically. That is what Powell's conclusion that 1960 was the high water mark in racial equality means, the racial equality that retained most of American apartheid under the Constitution and which is resurgent under first Rehnquist and now Roberts.
The present day romantic fantasies about the Supreme Court are entirely anachronistic and largely due to the entirely atypical use of judicial review for a few years in the 1950s to the early 1970s to do the opposite of what that tool has most been used for. It is a reaction against that atypical use of Government by Judiciary which led to Powell's Court Capture scheme because it's obvious that they had no problem with a Supreme Court exercising both legislative and executive-regulatory powers as long as it was on behalf of the elites and the rich and not on behalf of the least among us. I would not argue that the Warren Court's every decision even with the best of intentions was wise or sustainable. I think much of what they did played right into the hands of the enemies of equality and, especially, government of, by and for The People.
Class as much as race is behind this, which I am quite certain played the biggest part in Louis Boudin's massive effort to document and expose the corrupt practices of the Supreme Court. I am certain that he was aware that his association with Marxism was a liability which would be used against his scholarship, knowing that today anything he said would be attacked because of that, one of the reasons that I have not done what I've encouraged for the past several years, reading his book and checking his references and his reasoning.
That's the thing about argument backed by evidence and logic, the foibles and even the character of the person making the argument can be surpassed by a well and honestly evidenced logical argument. Of course, today, with our TV-trained, entertainment-internet addled population - perhaps even more those with college-credentials than those without, dishonest use of Boudin's Marxist associations will be used as a weapon by those interested in maintaining government by judiciary because it works so well for the oligarchs today as it almost always worked so well for the slave owners such as John Marshall and a majority of pre-Civil War members of the Court, for the segregationists after and those who use "equal justice under law" to enrich the rich and impoverish the poor.
* However, Powell’s critiques of King and the movement in the 1960s are worth revisiting, not least because they provide insight into his ideas about black rights, racial justice, and the appropriate relationship between law and social equality, all ideas that went on to shape some of his most important opinions in the 1970s and 80s. Though remembered as a moderate, Powell displayed little sympathy for the black struggle in the 1960s, concluding instead that Brown’s mandate had been met with the dismantling of overt segregation, and that the quest for racial reform had, by the close of the 1960s, reached its logical conclusion. This view reflected a larger sense on Powell’s part that the Constitution was not a vehicle for reform so much as a framework for pluralism, a guarantor of procedural fairness, and a bulwark against socialism; a doctrine that Powell felt was emerging increasingly, and alarmingly, in the words and writings of Dr. King. While Martin Luther King’s early call for the eradication of overt Jim Crow laws in the South in the 1950s struck Powell as an acceptable, if not completely copacetic, constitutional position; King’s shift from overt segregation to more aggressive demands that the federal government end poverty, abolish racial inequality and provide “compensatory” justice to blacks in the 1960s were not, as Powell saw it, legitimate constitutional matters.11 Social inequality, believed the Virginia native, constituted a basic reality of life in the United States, even contributing to what he termed America’s “pluralistic society,” a society
marked by racial, ethnic, religious, and economic “diversity” – a diversity of experience and achievement that the Constitution was bound not to change but to protect.12
Powell’s faith in diversity and doubts about equality provide particularly relevant insight into one of the single most important questions confronting litigation in the school arena today, namely the continued constitutionality of race in university admissions.13 To Powell, who sanctioned the consideration of color by admissions committees, diversity warranted constitutional protection on its own terms, independent of affirmative action or other “compensatory” schemes, precisely because it was a defining characteristic of American civilization that distinguished the United States from the Soviet Union.14 Though his negative views of the movement reeked of Confederate mothballs, Powell’s vision of diversity and pluralism as bedrock values that distinguished the United States from Russia provides an intriguing, perhaps even useful frame for assessing the continued relevance of diversity in university admissions today.15 Courts have tended to miss this, presuming instead that diversity constitutes little more than a guise for affirmative action programs aimed at addressing racial discrimination,an argument popularized by Robert Dahl in the 1980s.16 However, Powell’s vision was different. He discounted the need for affirmative action, arguing that African Americans had not suffered any more discrimination than whites and did not deserve special dispensation by the state. However, he conceded that blacks might nevertheless bring a unique perspective to the classroom, as might certain privileged whites, both of whom could have low scores forgiven to achieve.
Just as Marshall's original usurpation of power, under use by later Supreme Court "justices" became more extreme, Powell's genteel racism and hostility towards equality is changing in both strength and character under the present Roberts Court. "Judicial impartiality" is a potent and treacherously dishonest slogan to cover the very partiality of the elitists of the Supreme Court and you should always look for that whenever it or its equivalent is claimed
OVER THE PAST FEW YEARS as the Supreme Court was packed with Republican-fascists by the Republican-fascist controlled Senate and Republican, now Republican-fascist presidents and as things were rigged by them to deprive Democratic presidents of their appointments, I've repeatedly advocated a serious curbing of the self-granted powers of that most reactionary roadblock to progress peddled as a sacred protector of exactly what they have had almost as much of a role in killing as the anti-democratically constituted Senate.
In doing that I have repeatedly advocated people read the paper of 1911 and then the massive two-volume book on the subject by the radical lawyer Louis Boudin. I have long wished that I had the time and stamina to go through at least it's major arguments for reigning in the imperial court which has, except for the rarest exception in its history, proven the virtue of elected officials making the actual law that judges and "justices" are supposed to administer.
It would be a massive undertaking probably taking at least a year and it would probably dominate all of my time and it would definitely tax whatever audience this blog has.
But with the announcment of the radical Republican-fascist majority on the court getting ready to send us back to Plessey v Furgusson something has to be done.
Here is the beginning of the first volume of the book Government By Judiciary, it has some eye-opening things to say as well as a few things that probably need going over, I'll try to keep my commentary to a minimum.
I will ask you to note several things in mind,
1. I am doing something I hate to do, using the machine generated text of the book as found at Archive.org, I generally prefer to type it out from a pdf file. I have attempted to catch all of the "typos" the machine made, machines not being intelligent at all. I am sure there are some I will miss and I'll, no doubt, introduce new flaws.
2. Louis Boudin's writing style is academic and old fashioned, though he was not a bad writer at all of the type at that time. He is always worth the effort of reading him because he was a very good scholar as well as someone who looked at it from the unaccustomed point of view of someone who was a radical egalitarian and, in his early days, a Marxist. I believe, from what I've read, even before he became somewhat disenchanted with communism as he saw it put to the test of use, he was honest enough to denounce the jackasses around such figures as destroyed the old and somewhat successful Socialist Party crackpots, which most of them are.
3. Since Boudin uses so many lengthy quotes in his text I will alter my usual practice and only highlight his text so I can put things he quotes in italics. Any comments by me will not be highlighted and unitalicized.
------------------------
By Way of Introduction
IN a sense it may be said that it is the purpose of the present work to prove one statement made by Mr. Justice Oliver Wendell Holmes and to disprove another,—although both of these statements were made after the present work was practically finished and at the time of its commencement the writer had no expectation that Judge Holmes would make either of them.
The earlier of these statements—the one the present writer has endeavored to disprove—was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, (275 U.S. 142), decided November 21st, 1927. It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph. Says Judge Holmes:
“Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty that this court is called on to perform.”
Such a statement coming 'from such' a source should give pause to any one—and the present writer is- second to none in his admiration for the Grand Old Man of American Jurisprudence. Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by the present writer in an essay published by him twenty years ago in the Political Science 'Quarterly (Government by Judiciary, 26 P.S.Q, 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.
This belief notwithstanding, the term “usurpation” has never been used by the author in this work as his own characterization of the assumption of power involved—for the reason that the use of this term places the emphasis on a wrong aspect of the historical phenomenon under consideration. To the ‘legitimist” the most important question about the Napoleonic regime was the great Corsican's “usurpation.” But to the true historian this is a comparatively minor matter in estimating the character and quality of that regime. Also, the use of that term is misleading, in that it gives an entirely erroneous impression of the meaning of Chief Justice Marshall's act in delivering his famous dictum in Marbury V. Madison, The impression created is that on the American Eighteenth Brumaire, which happened to be February 24th, 1803, John Marshall put the crown on his head by delivering his celebrated opinion, and that thereupon the American Court Empire as we know it was complete. This is history as she is usually written, by official historians as well as “muckraking” radicals. With this difference: According to the official historians the crown was forged in the smithy of the “Framers” and lay more or less hidden in the folds of the Constitution,— like Wotan's sword embedded in the oak, waiting for Siegmund to bring it forth and use it for mighty deeds—so that nothing actually took place on February 24th, 1803, but a legitimate coronation, when the rightful heir assumed the crown rightfully his. While the “muckraking” radicals contend that the act amounted to a usurpation of powers never granted by the Constitution, and the exercise of which by the court is a continuous invasion of the rights of the Legislature.
But nothing is further from the truth. Marshall's decision was far from the dramatic event which it is usually pictured to have been. Nor did it have the implications usually ascribed to it. It is our contention that Marshall’s act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the courts' own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is. Hence the actual plan of this work, which—while giving to the pre-Marbury history of the Judicial Power all the attention it deserves—devotes most of its attention to the development of that power since the decision of that famous case, in an endeavor to prove that there was not one dramatic assumption of power, but rather a continuous and gradual encroachment by the courts upon the legitimate rights of legislature, executive and people. So that what was admittedly intended to be a government consisting of three equal and coordinate departments, with the primacy in the Legislature and the ultimate power in the people themselves, has in course of time, through work which Jefferson had characterized as that of “sappers and miners” steadily working to undermine the Constitution, become what some of the Judges have themselves termed a Judicial Despotism, with all powers lodged in an irresponsible judiciary.
This brings us to the second of Mr. Justice Holmes’ statements. As we have seen, Mr. Justice Holmes believes that the courts rightfully exercise the power of declaring laws unconstitutional. But what is that power? The official theory as laid down by Marshall in Marbury v. Madison, and as it has been re-affirmed and re-asserted many times since, is that it is a necessary consequence of our system of government, and that its existence depends upon, and its exercise is measured and limited by, that necessity. It is a fundamental point in this theory that the courts have no general supervisory power over legislation, but that when in the course of the regular administration of their own business, the courts are confronted with the dilemma of following either the Constitution or legislative enactment which conflicts with the Constitution, they are of necessity compelled to follow the Constitution rather than the legislative enactment, since the Constitution is superior to both courts and legislature. It is a necessary corollary to this fundamental position, and therefore a canon of constitutional “interpretation” well-recognized by the official theory, that before a statute can be “disregarded” its conflict with the Constitution must be clear and beyond doubt. In other words, the primary duty of judges is to enforce the law as made by the Legislature, unless they have a clear mandate from the Constitution itself to do the contrary. If this theory, announced by the courts themselves, were observed in practice, the question of the rightfulness of the power, while still important, would not be so pressing a problem to the people of this country as it actually is, for the simple reason that cases where either Congress or state legislatures disregard a clear mandate of the Constitution are so rare—if any have ever occurred at all—that the question would be rather of theoretical interest to philosophically-minded students of our system of government than of practical import to the ordinary citizen.
Unfortunately, the official theory does not at all tally with the facts. The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason of such disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject. So much so, that to declare laws unconstitutional has become a matter of almost daily routine for the judicial machine, and “unconstitutional” has become a “term of art,” as the lawyers call it, a facon de parler, a manner of speaking, the real meaning of which is: “We, the judges, think this is a bad law.” The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the Judges exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.
BEING GREATLY REDUCED in income due to the Covid epidemic and the devastation it's had on my profession I haven't yet ordered this book but it's one I will get as soon as used copies start appearing on the online small-bookstore sites. I don't usually talk about a book before I've read it but just as The Gospel In Solentiname filled a huge gap in my understanding of the Scriptures, commentary by Nicraraguan peasants living more as the image of God than any academic theologian do, I'm expecting Shelter Theology: The Religious Lives of People without Homes By Susan J. Dunlap will fill in yet more of those big gaps.
This interview with the person who is credited with producing the book is pretty revealing by itself. It starts with a description of her work and how the book became an expression of that.
Durham, N.C. — Three mornings a week, Susan Dunlap holds a half-hour prayer service for the overnight guests at Urban Ministries of Durham, a shelter for people without homes.
Unlike other shelters, some of which often require attendance at such services, there's no sermon here, no order of worship, no hymnal.
The idea is to allow shelter residents to create a zone of belonging and recognition that is not controlled or scripted by others, she writes in her new book, Shelter Theology: The Religious Lives of People without Homes.
The description of the book in the introduction in terms of "anthropology" almost put me off of it but this doesn't sound like a traditional condescending "study" where the People who are the center of the book are "interpreted" to make them safe for elite, polite, academic digestion. Like the irreplaceable Jonathan Kozol, the author is obviously aware of why that's especially wrong when it's a white professional doing it.
RNS: You write that, as a white clergy person, you hesitated for a long time before writing this book. How did you overcome that?
Dunlap: There are risks trying to represent people different from you, particularly if they're very vulnerable. You risk violating them. It can be an act of violence. But it can also be an act of violence not to represent them. I thought to keep hidden what I learned about their insights and theology and lives was also wrong. My teacher, Mark Lewis Taylor, said these representations can be justified if you're actively involved in changing the circumstances that victimize them. The whole time I've been working with them, I've been involved with Durham CAN [Congregations, Associations and Neighborhoods] to build affordable housing. That also justifies telling the stories of vulnerable people on the margins.
You refrain from calling the shelter's guests homeless, for the most part. Is there a new style around that?
It's become accepted to call them unhoused or people without homes. I prefer "people living without homes." It's a people-first language. I prefer saying they don't have homes rather than saying they're unhoused, because a home is a place of safety and nurture, more than just a house.
You talk about the horror of homelessness. Describe what you mean.
One of the things that symbolized that for me was walking down the street and one of my guides who lived at the shelter said, "That's where Black people go for sex. That's where white people go for sex. You see that pile of rocks? That's a good place to hide for drug deals." There's a place under a railroad trestle where there was an old mattress, and he said, "That's where you go to trade sex for drugs." To me, that's horror.
You have to wonder how many of the people talked about in the Gospels lived the first century equivalent of that. I think the lives of the destitute throughout time must have similar qualities, far more so than the lives of the rich and famous of today. These People are the ones who are presented as identical to God, in terms of how we treat them by Jesus. The Lord trading sex for drugs, I think I should meditate on that for a month or a year to see what I learn from it. I have a beloved member of my extended family who lived a lot like that for several years. I don't think I know her nearly well enough.
What did you have in mind when you created the prayer service and what did it become?
I had in mind creating a space that was not a place for my agenda, but theirs. They would walk into a quiet room and bring their own prayers to the front and light a candle, and meditative music would play in the background. It would be a place of nurture that affirms their connections to the divine. But they brought their religion with them, which is mostly Southern evangelical Black church. The music evolved from being instrumental to being gospel and organ music and singing. Rather than long spaces of silence, people gave testimony, they gave sermons, they encouraged each other, they praised God using common African American prayers like, "I thank God for waking me up this morning!" The music I felt was calming, they didn't like. One woman told me, "It sounds like a funeral."
It's tempting to just post the entire interview but I hope I've given enough to make you want to read the rest of it and the book. I expect it will jar me a lot, maybe even more than I have been by the interview. I am jarred out of the comfortable idea of morality and religion that is so tempting, calming like the music described. What good is that to people who are forced to live such dangerous, chaotic lives? It's enough to make me question even my musical life in a shattering way. Who is it who needs 18th century counterpoint and who is it who needs music that doesn't sound like a funeral? Maybe I should have been serving them instead of me.
