and as actually exercised by our Judiciary, is based on the theory of the centralization of the powers of government in the Judiciary, which is thereby made the supreme political power in the nation. Part 2 Marshall
CONTINUING ON:
Chief Justice Marshall, in his famous opinion in Marbury V. Madison, followed closely the reasoning of Justice Wilson, as may be seen from the following passage in the opinion which is the foundation of the Judicial Power:
“The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
“That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental, And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
“This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
“The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited
powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed. are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
“Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
“If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
“This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in further consideration of this subject.
“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
“If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
“Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
“That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
“The judicial power of the United States is extended to all cases arising under the constitution.
“Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
“This is too extravagant to be maintained,
“In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?
“There are many other parts of the constitution which serve to illustrate this subject.
“It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law?
“The constitution declares That no bill of attainder or ex post facto law shall be passed.'
If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve?" (Mar- bury V. Madison, 1 Cranch 137, 176-179)
This argument seems not only logical, but really very simple, Chief Justice Marshall assures us. Unfortunately, neither life in general, nor the growth of political institutions in particular, is governed by logic. And what to one mind may seem perfectly simple, may to another appear beset with insurmountable difficulties. Particularly, what may seem perfectly simple in one generation, may appear to be exactly the reverse in another generation.
As a matter of fact, like all purely logical deductions, the thesis contended for by Justice Wilson and Chief Justice Marshall is very far from simple, as will be seen upon closer examination of the subject further below. But more important than any flaw that can be found in these learned Justices' reasoning, is the treatment which it received from history. And history — that is to say, the actual experience of mankind since those statements have been put down by the eminent jurists — has been very unkind to the legalistic argument. This is particularly true of Mr. Justice Marshall’s formulation of the argument, which has been refuted on every page of history dealing with this subject since Marshall delivered his famous opinion.
It will be noted, first of all, that, according to Marshall, the right of the judiciary to declare acts of the legislature void and unconstitutional is inherent in every written constitution.
"Certainly,—says Marshall—all those who have framed written constitutions contemplated them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
‘‘This theory is essentially attached to a written constitution, and is consequently, to be considered, by this court, as one of the fundamental principles of our society.”
At the time the great Chief Justice penned these famous words, mankind had had very little experience with written constitutions. When the United States Constitution was adopted there were no other written constitutions in existence outside of our own state constitutions. This situation had changed somewhat, but not very materially, at the time the great Chief Justice wrote his opinion in Marbury v. Madison. But since then the world went on a written-constitution basis, so to say, so that now there is practically no civilized country in the world, with the notable exception of Great Britain, which has no written constitution. The number of written constitutions now in existence is legion. And practically each and every one of these written constitutions is a refutation of Marshall’s basic assertion, the assertion which he considered, according to his own words, “as one of the fundamental principles of our society.” For under none of those numerous constitutions has the judiciary department the power to declare unconstitutional a legislative act of its own government as in contravention of its own constitution.
As a consequence of this ruinous effect of the march of history upon Marshall's logic, the supporters of the Judicial Power find themselves compelled to look for other arguments with which to buttress, or to provide a substitute for, the great Chief Justice’s logic. But there is another reason why the modern upholders of the Judicial Power should look for older and better reasons for the support of that power than the legal logic of Wilson and Marshall. And that is the all-important fact that the Judicial Power today is not the Judicial Power asserted by Wilson and Marshall. It is a far cry from the Judicial Power based upon the separation of powers of government into three co-equal departments, which was asserted and defended by Wilson and Marshall, and the Judicial Power as we know it today, and as asserted and defended by their modern successors. The new Judicial Power was thus explained by Simeon E. Baldwin, one time professor of constitutional law at Yale University, Chief Justice of the State of Connecticut, and Governor of that State, and near-contender for the presidency of the
United States:
“No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test. The judiciary holds this position in the United States."
This new exposition of the Judicial Power was first made by Judge Baldwin in 1905, the foregoing quotation being the opening paragraph of his well-known work published in that year under the title The American Judiciary. In 1914 it was adopted by Professor Charles G. Haines, who uses it in the opening paragraph of his book The American Doctrine of Judicial Supremacy, and who adds on his own account:
“In the United States supreme power is exercised for most purposes through a judicial system in contradistinction to those governments in which the legislature is supreme and the courts subordinate. . . .
“With the few exceptions noted the United States stands alone among the great countries in the world according the judiciary, the function of guarding the fundamental law and in establishing thereby judicial supremacy. . . .
“This principle of law and political practice which places the guardianship of written constitutions primarily in courts of justice, combined with the Anglo-Saxon idea of the dominance of judgemade law, constitute the basis of what may appropriately be termed the American doctrine of judicial supremacy”
Not only is the Judicial Power here described an entirely different governmental institution from the Judicial Power envisaged by James Wilson and John Marshall, but it rests upon an entirely different governmental theory. The Judicial Power as understood by Wilson and Marshall was based on the theory of the separation of powers—the distribution of the powers of government among three co-equal departments; while the modern Judicial Power as
expounded by Baldwin and Haines, and as actually exercised by our Judiciary, is based on the theory of the centralization of the powers of government in the Judiciary, which is thereby made the supreme political power in the nation.
And the theory of the separation of powers is not the only one abandoned by the modern supporters of the Judicial Power. There is a tendency also to abandon the written basis of the power and to substitute for it a sort of Judicial Prerogative, claimed to be inherent in the office itself, independent of any written constitution either as a source or measure of the power. According to this theory, the judiciary is the repository of a higher law, of which the conscience of the judge is the only evidence and sole measure, which requires and enables him to declare “unconstitutional,” and therefore null and void, any law which conflicts with that higher
law as understood by him.
Our present situation shows under the Roberts-Plessy Court, what Boudin said about that old and moldy chestnut is true, the "separation of powers" theory is complete hooey. The gutting of the Voting Rights Act by Roberts Court fiat, alone proves that.
Tempted as I am to include the Executive Branch, as embodied in the Department of Justice in the matter of such criminal referrals as the one still pending after almost two months against Mark Meadows, as it was conducted under Sessions, Whittaker and Barr, both in the Republican-fascist collusion with the likes of Devin Nunes and the apparent delay, perhaps nonfeasance under Garland . . . I'll save that rant for later. Let me just say I've never been less impressed by the legal and judicial establishments than I am now.
One of the things you can depend on happening when you attack the self-granted powers of the Supreme Court to make law, to overturn law made in the Constitutionally mandated way of the legislature passing a law, the executive either signing it or allowing it to become law without signature or vetoing it (the legislature then, perhaps, overriding the veto by a two-thirds vote in both chambers and the bill becoming law, will be for the horrified defender of the sanctity of the Court coming up with Brown vs Board of Education or some other sacrosanct ruling by the long dead Warren Court or Roe vs Wade or some other instance when a Court took it on itself to do something that the legislature wouldn't do - OFTEN BECAUSE A POPULAR BILL WAS KILLED IN THE ANTI-DEMOCRATICALLY CONSTITUTED SENATE.
I remember when, in the face of the increasing success of the Federalist fascist court capture scheme was succeeding I commented online that we needed to impose term limits on the Court because lifetime is too long for the Republican-fascists who were placed on the Court since the Reagan administration. "Oh, but what about Ruth Bader Ginsburg" "What about this one or that one." to which the answer was easy, what about Rehnquist, Thomas, Scalia, etc. etc. Much as I was generally glad that RBG was on the court, she stupidly stayed on it past the point where anyone should be retired from such an arduous job, especially after surviving serious illnesses. I hope that Stephen Breyer hasn't waited too long, making his replacement subject to McConnellesque ratfucking of the kind that Merrick Garland's nomination was subjected to, putting the overtly oligarchic fascist Neil Gorsuch on the Court. Not that I'm thinking Garland was an inspired choice by the too every overly cautious Obama.
But for any such instance of alleged judicial heroism there are myriads of other decisions by tools of the oligarchy, the slave power, with the Roberts-Plessy Court, neo-Jim Crow, that are the opposite of enlightened expressions of equality and good will. And as we are seeing, even those bulwarks of progress alleged to be permanent are as easily overturned by the Court as they decided on them. No, that's not true because it's turning out to be a lot easier for the Roberts-Plessy Court to overturn rulings that were long and hard fought for using excuses that the original opponents of justice used in complaining about those rulings.
Note my citation of the power of the legislature to overturn a veto by a two-thirds majority - something that used to happen, if it ever will again, who knows?
But for the Supreme Court to do something far more radical, the destruction of duly enacted laws, long and allegedly established Supreme Court precedence, all it takes is five votes by unelected, generally conservative lawyers who are often liars (go review the record of the confirmations of the Roberts Court majority, it's obvious all of the six lied in the most obvious way during their sworn testimony).
Why should five unelected hacks in robes have such power? That the Senate gives a minority the ability to ratfuck the legislative process isn't an answer to that, it's only to point out what a terrible idea the Senate was to start with, made worse by the extra-Constitutional choices and traditions of that foetid body.
There's a reason that the United States is either alone or in very meager company in giving power like that to unelected people nominated and placed on the court with a definite POLITICAL AGENDA which they and everyone lies about knowing as they are lying in front of the Judiciary Committee of the Senate.
The system as set up in the Constitution in which, originally, not even the Senators would have been elected but appointed by the various state governments, makes the repugnant nature of the Supreme Court of the United States almost a guarantee. I'm not a lawyer, I'm not a law scholar, I've got no stake in pretending that the thing is any better than it most definitely is not. I'm watching the hard fought, bloody, sacrifices of those whose blood bought us the progress which the present Supreme Court is destroying, perhaps a destruction of rights and democracy unprecedented in its often stinking history.
There are so many points that can be made in refutation of Marshall's assumptions of the fixed nature of the Constitution and the permanence of its character as various Supreme Courts, now, as Boudin points out, given the power to make of it whatever the members of the Court want it to, overturning even long standing and widely accepted interpretations of the past, any illusions about that should be junked as fast as possible.
