Saturday Night Radio Drama - Rod Serling Host - The Zero Hour

 THE ZERO HOUR 

 

The upload contains the entire 130 episode run of the radio how, Zero Hour, which aired in 1973-1974 during the attempted radio revival.  Rod Serling hosted this dramatic anthology series, which focused on stories of mystery, adventure and suspense.  The first 65 episodes were 13 5-part stories, while the final 65 episodes were each 30-minute individual programs.

Another week with not much time to listen to new radio drama so here's another large collection, this one as broadcast complete with commercials and announcements.   The sound is low-fi but listenable in the ones I sampled.  A lot of the actors are well known from movies and TV shows of the time.   Patty Duke Astin and John Astin in the first one.

The Real American Left Has To Publicly And Forcefully Dump The Play- "The Left" For Whom There Is Always A Hitler-Stalin Pact In The Offing

SINCE THE THEME of my blog is what the American left has done wrong that has kept it perpetually out of power for is entire existence and how to get out of that rut, I bring you the lunatic take of Professor Richard Wolff, who bills himself as America's most prominent Marxist economist, on why the invasion of Ukraine is all the fault of President Biden and the Democrats.  

This isn't a single lunatic take on this, it has been the line of the publisher of The Nation and her late husband, a variation of it is spouting from the massive scumbag Glenn Greenwald, widely considered by idiots on the American left as a leftist even as he and his closest colleagues are supporting the same position as some of the worst fascists in the present day world.  And others.   All of them sounding like the Stalinists who turned on a dime, going from the biggest, fattest Hitler haters to doves for peace with Hitler when they found out about the Hitler-Stalin pact.   Only a lot of them never were much bothered by Putin, with whom, as I've pointed out, they share a history of Marxism even as its nature of turning into capitalist-fascist gangsterism instead of Marx's fairytale stateless world becomes ever more apparent.   Given that, Ukraine's progress toward democracy as Russia fell into Putin's gangster criminal facism is remarkable.

Particularly telling is Wolff's repetition of Putin's "de-Nazification" talk when the Ukranian president would have been murdered by the Nazis because of his Jewish heritage.   I will note, since I've so recently gone into the history of American left's stereotyping of Eastern Europeans that Ukraine had an elected Jewish president before the United States did.

The American left got sold a huge bill of good from Marxists in the late 19th and 20th centuries and with that they fell for the "my country always wrong" snobbery that was always a huge part of that.  As well, as Wolff's lunatic ranting has it, the worst of all Americans are the Democrats who are the best chance for egalitarian democracy ever being achieved here.   The reflexive Blame America Always will always target the Democrats because, like the Green Party collaborators with Republican-fascism,  I suspect under the patronage of Putin 

 

they have delusions that the thing between them and power is the Democratic Party.    They will certainly mount spoiler candidates in this years election and the 2024 elections, I strongly suspect that such play-lefty sources as The Nation and In These Times will carry support for that along with their eternal condemnation of Democrats.   

Update:  For more on the American "left's" falling for Putin's lies, in a frank discussion of the far right in Ukraine AS WELL AS HOW PUTIN'S REGIME IS FULLY TIED IN WITH RUSSIAN NAZIS listen to what is said here after 9:00.

 

psychology’s ambiguity, abstractness and susceptibility to contemporary ideology allowed the Nazis to thoroughly exploit on all levels Footnotes, Footnotes, Footnotes

HERE AS A PASSAGE from a paper studying the role of psychology and psychiatry just before and after and, especially during the Nazi regime.  After a number of topics within that, including psychiatry's and, to a somewhat lesser extent psychology's role in mass murders and the individual focus on the career of one of Germany's prominent psychologists,  it concludes:

The Nazi era left a black mark on the history of psychology and specifically psychiatry. If it had not occurred perhaps German scientific findings from that period would still be held in the same regard as before they were permeated with the corruption of the opportunism and racism that flourished under the Nazi regime.

Psychology’s inherent susceptibility to be influenced by contemporary beliefs and concepts allow it to be easily molded to support popular ideas. While other branches of science, such as physics and chemistry were certainly exploited by the Nazis, psychology’s  ambiguity, abstractness and susceptibility to contemporary ideology allowed the Nazis to thoroughly exploit on all levels. Additionally, the perception of much of psychology as being ‘Jewish’, coupled with the Nazis’ extreme anti-Semitism, gave Hitler a pretext to purge the discipline of dissidents and fill the empty positions with scientists who were aligned with Nazi ideology. Each of the various branches of psychology were used by the Nazis in different ways: holism helped define the purpose of the Volk and their role in the German nation; gestalt studied Rassenkunde and gave the Nazis empirical ‘proof’ of Aryan superiority; and psychiatry delved into the study of hereditary traits, which helped lay the groundwork for the Holocaust. On an individual level,many German psychologists were co-opted by the Wehrmacht and Luftwaffe and many of those who remained in the universities clearly became corrupted by the opportunism that was so rampant during the Third Reich. As a whole, many of the broader concepts in psychology formed the basis for much of Nazi ideology. Psychology’s slow shift rightwards during the Weimar Republic led to the development of many theories and even entire branches, such as mass psychology, which gave National Socialism a base from which it could perpetuate itself and form the authoritative, totalitarian state that Nazi Germany became under Hitler’s rule.

That is certainly a good reason to be suspicious of any psychologist or historian of psychology praising an ideological position as among the most important things about their "science" considering that history.   I would love to see an exhaustive anthology of the American, English and other review, quotation and citation of such published German language Nazi psychology, psychiatry, sociology, anthropology to see the extent to which its ideological involvement with Nazism was even noticed by those professionals who were not among those targeted by that "contemporary ideology".  I have shown before that English language eugenics, even well into the Nazi era and even up till America's entry into WWII had the most cordial, collegial and approving intellectual comment on the Nazis' science.  The paper shows that even those who were involved with mass murder under the Nazi regime who were professional psychologists just picked up and continued to ply their trade under the new management after the fall of Hitler.  Those in the behavioral sciences were seldom seriously forced to face what they did, at least one was awarded a Nobel prize after the war and as it was well known that they had provided "race science" congenial to the mass murder program of the Nazis.  That ideological flexibility inherent to such science was certainly a boon for Nazi scientists even as Nazi science was condemned.   For show, at least. 

That can be seen in the last, concluding, paragraph of the paper which, if you've read the whole thing might make you gape in shock at its own moral ambiguity.

Nevertheless, psychology underwent a system wide development and professionalism due to some of the laws and regulations set in place by the Nazi government. Nazi Germany’s need for psychologists in the army allowed the field as a whole to prosper immensely and without these regulations and the desperate need for psychologists after the war, psychology as a profession could be different today.  

So could psychology sticking with scientific method, starting with the need to actually be able to objectively observe what they claim to be studying.  Which, of course, it can't.   It should not be considered science, it is lore.   But as I said yesterday, that's not my call to make.  Science as a whole should be answerable for that. 

Quick Hate Mail Response Before Getting Back To Boudin and Brueggemann

IT'S RIGHT HERE in  this paper by the American psychologist Donald Dewesbury:

This article provides an introduction to the special issue on Darwin and psychology at the bicentennial of his birth and the sesquicentennial of his publication of On the Origin of Species. His core contributions, as viewed today, were his theory of natural selection, his naturalistic philosophy, and his mass of evidence for evolutionary change.

It states it right there, crediting Darwin with giving psychology an ideology.   He certainly he doesn't mean "methodological naturalism" better known as the methodology of science.  Which predates Darwin by centuries and  which psychology seems to have little use for and, to be perfectly frank,  Darwin did not much practice.  He can only mean a philosophical view point, ideological "naturalism,"   That is what the author considers one of his greatest contributions to psychology.    

That any science would be said to have an ideological point of view is already a serious indication that the science isn't especially interested in objective description of reality but in propping up an ideological preference.  Which should be considered a problem when it pretends to be doing science but which, as the decay of this sort set in, people had a professional interest in continuing and people got used to it being there, unquestioned.  The history of psychology, which, apparently Dewsbury specializes in, is a testimony to the ephemeral "science" produced by that practice.  The history of psychology is about the opposite of the history of physics in terms of producing durable findings about the physical universe.

But even if you missed the real meaning "his naturalistic philosopy" the idea that evolution could properly be part of a scientific study of psychology should be rigorously criticized.  

It should jump out at anyone who gives it even a moment's thought that not a single one of our pre-literate ancestors who never left a even a fragmentary written record of their thinking can have their minds studied.  We have no access to their minds, not even a vague clue of it which is a product of our, not their minds.  Even their fragmentary manufactured or used artifacts can tell you little to nothing about what they were thinking.  You can't even reliably tell the gender of whoever made those, never mind their cultures or individual minds.   Yet psychologists and their allies pretend they can do something so necessarily specific as science about them when they definitely can't.

As bad and worse,  they propose to do so with the ancestors of non-speaking living species in the far distant past when evolution into what is scientifically defined species was ever the subject of any valid scientific observation or measurement.   

Anything which was said about the psychological aspects of those long-ago lives has never been witnessed by any scientist, never mind any psychologist.  Every single thing said about the lives and minds of those organisms for which psychology is even claimed to be relevant is forever unavailable to us and so everything that is said about the minds of those long, long ago dead animals and other possibly conscious organisms is entirely the product of the not at all objective and uninterested imaginations of the scientists who make such claims about them within science.   The derided "Clan of the Cave Bear" novels are no less valid than much of it.

Every single thing that psychology says about the minds of animals who they can't ask about their internal, unobservable experience is a product of the imagination of the psychologist or ethologist and is probably entirely more of a revelation about the scientists' own wants, desires and interests than it is about any organism they claim to be speaking for. 

It's all a just-so story.  Stephen Jay Gould got only a little way towards clarity that when he called out Sociobiology and Evolutionary Psychology for doing that.  It's a critique he could have made of far more that was being called "science" including much of conventional evolutionary biology, the entirety of the dogma of natural selection. 

In the case of the mainstream of psychology, of "evolutionary psychology" etc. it is told by people whose profession is and has been dominated by those who have an ideological and emotional attachment to materialism, to "philosophical naturalism" and, I'll point out, probably a sensed if not thought about professional interest in asserting that same ideology as a means of getting by and getting ahead in their professional lives.

That is exactly the kind of thing that scientific methods were invented to keep out of the formal practice and literature of science.   

--------------------------------

As I pointed out yesterday the use of natural selection to promote that kind of ideology and gross speculation as biological science is intimately tied to the introduction of natural selection within the study of evolution.   Ernst Haeckel's  History of Creation, is a book which Darwin, himself, held up as superior science to his own major work on the topic of evolution,  The Descent of Man,  

This last naturalist, besides his great work, 'Generelle Morphologie' (1866), has recently (1868, with a second edition in 1870), published his 'Naturliche Schopfungsgeschichte,'[History of Creation] in which he fully discusses the genealogy of man. If this work had appeared before my essay had been written, I should probably never have completed it. Almost all the conclusions at which I have arrived I find confirmed by this naturalist, whose knowledge on many points is much fuller than mine. Wherever I have added any fact or view from Prof. Haeckel's writings, I give his authority in the text; other statements I leave as they originally stood in my manuscript, occasionally giving in the foot-notes references to his works, as a confirmation of the more doubtful or interesting points. 

Haeckel declared in that book that 

This final triumph of the monistic conception of nature constitutes the highest and most general merit of the Theory of Descent, as reformed by Darwin.

For this and more on it, read here. 

That certainly isn't a scientific declaration, it's a declaration of ideological triumphalism, one for which there is not only no scientific support now,  there was none in 1868 when he wrote that.  Yet that ideological point of view was being promoted as science, as if it had the same kind of verification that physics or chemistry had as a requirement, for which such ideological claims are now widespread, as well.

As I pointed out the genealogy of natural selection flows from the political-economic support for Malthus's most depraved interpretation of the British class system which is in no way a natural phenomenon but a system of laws put up starting under Elizabeth I to impoverish the English poor so as to enrich the aristocracy and the feudal rulers of England and whatever countries were unfortunate enough to have been under their boots which Malthus's pseudo-science made far worse in 1843.   It was born in what science was supposed to keep out and it was retained for largely ideological uses, covering up any discrepancies such as were needed to pretend that natural selection and, soon after, psychology was in any way a product of scientific method.  Wedding the two, natural selection and psychology has produced some of the most depraved of junk given the status of science in the history of science with the power to do some truly terrible things.  

Yet you wonder why I've spent so much time researching this and writing criticism of it.

Jonathan Orland Quartet - The Seaman

 

Direct link to video 

Jonathan Orland: sax and composition
Nelson Veras: guitar
Yoni Zelnik: double bass
Donald Kontomanou: drums

There Are Many Reasons To Slam The Supreme Court, Them Opening Up Our Politics For The Interference of Putin One Of The Most Glaring Of Them

I'm getting complaints about the Government by Judiciary series.

AS YOU CAN HEAR people amazed that Republicans in the Congress, the pundit class, the Republican-fascist media are siding with the murderious dictator Putin as he invades Ukraine in a war that will likely kill tens if not hundreds of thousands, topple a democracy as he tries to reestablish the Soviet Empire - this time without the pretenses of Marxism - there's really nothing amazing about it.  The Republican-fascist majority on the Roberts Court were handing the country to him, paving the way for Putin to join other billionaire gangsters, foreign and domestic to put his puppet in place here.   And they were told that's what they were doing only to have one of the worst of them lie about it.  This account puts it rather well.

Ten years ago, the U.S. Supreme Court issued its disastrous ruling in Citizens United, giving corporations the right to unlimited political spending. Since then, independent groups unrelated to political parties have poured $4.5 billion into federal elections, including almost $1 billion of secret “dark money” that cannot be traced to its source. Raising further concerns, a significant amount of that political spending comes from foreign-influenced U.S. corporations.

Americans are demanding bold reforms to protect elections and make elected leaders more accountable to voters. The good news is that a popular solution exists, and it’s gaining newfound momentum: a ban on election-related spending by foreign-influenced U.S. corporations.

In his 2010 State of the Union address, President Barack Obama issued a dramatic warning about the just-issued Citizens United decision. Standing only feet away from the high court’s justices, Obama predicted that Citizens United would “open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” Justice Samuel Alito, a member of the Supreme Court’s conservative majority that decided Citizens United, could be seen mouthing the words, “not true.” Obama declared, “I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

Unfortunately for our democracy, Obama’s warning was accurate. Americans have witnessed the inglorious rise of super PACs and a deluge of corporate and secret dark money political spending, which have warped our political and policymaking processes. At the same time, the United States has fallen victim to Russian interference in the 2016 presidential election, continued foreign interference efforts in advance of the 2020 presidential election, and President Donald Trump’s unconstitutional solicitation of foreign assistance for his re-election.

That was done, with full warning of the consequences by the unelected, court-capture-created Roberts Court through the kind of Government by Judiciary that I've been laying out here using the roadmap to understanding it that Louis Boudin laid in 1931.  He would be amazed at how much worse the Court got after that, I cannot imagine he would possibly have imagined a Republican controlled Court undermining American electoral democracy in favor of a Russian imperialist dictator with the full support of a Republican Party under the sway of that Russian dictator's degenerate American puppet.  But that's exactly what we got, with the help of the "free press" and such toadies as James Comey.  

The Supreme Court as it is now is one of the most dangerous institutions in the United States, its power, self-given, self-expanded, self-unlimited has brought us to where we are now.  It was the Congress, especially the House that tried to save democracy here, formerly with the help of elected presidents, the one the Supreme Court, in effect, appointed, George W. Bush and the one who lost the election in 2016 showing how dangerous our Constitution as it remains really is because of the in-specificity and general vagueness of so much of what we are supposed to revere.  

What's amazing isn't that I'm attacking the Court and its self-created privileges, what's amazing is that in light of the above record it isn't the universal cry to cut it down to size and save our democracy. 

Hate Mail Redux - "Galton wasn't a scientist." - That Would Be News To Science

THE DEFINITION OF WHAT SCIENCE IS and who is a scientist is not in my hands, it's in the hands of scientists, those who do science and, more so, those who publish science, those who review papers and give them a pass, those who cite published papers, those who hire faculty members to be their colleagues in science departments and labs.   In other words what "science" is at any one time is what those who are credentialed to do those things call science say it is, scientists are those who are hired to work in science by scientists.  That's not me.  And once that near or real consensus has been reached, like it or not, it is entirely legitimate to note that that status has been granted to it by "science" itself.  

Every single one of the eugenicists and scientific racists I named and myriads of others I could have named were designated as scientists by their scientific colleagues, Haeckel, Galton, Huxley, even, for the love of Mike, W. R. Gregg were so deemed by your hero, Charles Darwin in his second major scientific publication, The Descent of Man where he cited some of their worst eugenic and scientific racist and, yes, in the case of Haeckel, overtly genocidal content.   There are many things in science, buildings and halls and medals, etc. that are associated with the names of scientific racists of the past, some of which are being renamed as the racism, etc. of those illustrious scientists is exposed to a more critical general audience.

If what is science were my call, I'd never call psychology or sociology. anthropology or ethology science because they don't follow what are the claimed methods of science used to study physical objects.  That is obviously because what they claim to study can't be seen, or looked at or reasonably objectively discerned or measured, excluding what might be more accurately called "physiology" that gets lumped in with psychology,  every datum that goes into their data are amassed or imagined from things other than direct observation of physical objects reliably described and simple enough to really do science on.  

Neither does the largest part of what must have comprised evolution because well over 99.999. . . % of what evolution consisted of is lost forever in the decay of time, of physical processes and geological processes and will never be recoverable.  The farther back in time, the less there is to study.  That is, of course, especially true of any behavioral components that led to some individuals leaving a successful line of descendants and others not leaving enduring lines of successful descendants and other methods proposed to have led to the evolution of new species.   But not only of the ephemeral issues of "behavior." Neither can we amass accurate data to take the, no doubt, random chance events and the merely contingent aspects of any even physical differences among those organisms relevant to the study of evolution.  That does matter if the proposed study is the study of evolution.  No matter how much the entire, allegedly scientific study of evolution pretends that they can do what they can never do or that, in view of the little that can be known, the gargantuan dimensions of what cannot be known matters not at all in comparison.  

If you would like me to go into the catastrophic character of the theory of natural selection and its associated "laws of nature" when those have been part of the practice of psychologists, it would probably be worse than what I've already gone into.  

When the likes of Leda Cosmides and John Tooby  dubbed their reintroduction of questionable and unverified genetic determinism and, inevitably, eugenics as asserted in "behavior"  into the mainstream of evolution talk "Evolutionary Psychology" it should have warned me that all hell was going to break loose because psychology has been the most fecund of venues of introducing pseudoscience into science of any university based departments.  Well, if you don't count even less scientific junk like ethology where the "subjects" can't even give an unverifiable account of their own conscious experience to those who pretend that their created and amassed lore about that is scientific.   I had a Bio-Anthropology teacher in college (soc-sci requirement) who said, "Scratch an ethologist and you'll find a Nazi."

The history of the revival of overt academic scientific racism and eugenics in the 1960s and 70s was led by psychologists such as the infamous Arthur Jensen and Richard Herrenstein working at even some of the most highly respected universities, often funded by those with ties to white supremacy and even neo-Nazism.  The renowned geneticist Francis Crick (of DNA fame) worked behind the scenes to try to get his colleagues to support Jensen and his racist neo-eugenics, there was enormous cross over between the two sciences.   

That revival of both scientific racism and eugenics has continued right to the present with only a few sacrificial victims such as Kevin MacDonald belatedly black-balled because those he chose to mark  were, largely, white and no longer part of the deemed-expendable Western underclass.  Few if any others in the revival of scientific racism have suffered any consequences for their racism within academia, I suspect because they generally concentrating on promoting the superstition that People of Color are intellectually inferior to White Europeans, as the first generation of Darwinists almost uniformly held. 

I will note in passing that before WWII, scientific antisemitism was mainstream science, in English as it was in the German language.  It was the Darwinist establishment and academic psychologists who got the first overtly antisemitic federal laws passed in the United States, excluding Eastern European Jews form entry into the United States, such as turned the M.S. St. Louis into a death ship as its Jewish passengers were sent back, a third of  them to die under Nazism.  

Scientific antisemitism's post-WWII eclipse shouldn't be counted on to endure, as it clearly did not remain in shadow within the world of Evolutionary Psychology up till the 1990s until it was exposed to the sunshine outside of science.*  If Kevin Macdonald had said the same kinds of things he did about Jews about People of Color, he would still be a scientific racist in good standing, though he'd probably get op-eds published in the Wall Street Journal (such as the scientific racist Linda Gottesfeld has) and the New York Times as others have, some of them on staff.  When that species of scientific racism is exposed to the wider world, wider than the scientific community which had hired them, promoted them, published them and honored them within science even as were publishing that antisemetic science, all of it based on the theory of natural selection.   

No group which has been targeted under scientific racism since 1860 should imagine that their vilification as science, discrimination against them supported by science, in truth, by scientists, and those politicians, judges and "justices" influenced by such science (which will unsurprisingly support their own predilections as it so often has among the purportedly unprejudiced) should imagine that the science that did that in the past will remain unrespectable.  I certainly wouldn't count on that.   Natural selection started in the Brit class system, in Malthus's economic laws for starving and letting the poor die, such as were embodied in the even more depraved British New Poor Law, a system of government and economics of, by and for the rich and, so, powerful, it will never escape that character even as a century and a half of Darwinists try to make that go away.   It was one of the earliest critics of Thomas Malthus, the English radical politician William Cobbett who made what should have been a definitive refutation of Thomas Malthus's call for allowing the British poor to die by "leaving them to the law of nature." 

The audacious and merciless MALTHUS (a parson of the church establishment) recommended, some years ago, the passing of a law to put an end to the giving of parish relief, though he recommended no law to put an end to the enormous taxes paid by poor people. In his book he said, that the poor should be left to the law of Nature, which, in case of their having nothing to buy food with, doomed them to starve. They would ask nothing better than to be left to the law of Nature; that law which knows nothing about buying food or any thing else; that law which bids the hungry and the naked take food and raiment wherever they find it best and nearest at hand; that law which awards all possessions to the strongest; that law the operations of which would clear out the London meat-markets and the drapers' and jewellers' shops in about half an hour: to this law the parson wished the parliament to leave the poorest of the working people; but, if the parliament had done it, it would have been quickly seen, that this law was far from 'dooming them to be starved.'

It's remarkable that more than a hundred sixty years of scientific true believers in Darwin's extension of Malthus as a law of nature couldn't see what Cobbett saw before Darwin picked up Malthus and had his eureka moment.  It's no wonder that the aristocratic gentleman's son and alleged keen observer of nature didn't understand that about nature and the discrepancy between it and Malthus's aristocratic lies. 

*  As I pointed out last week the overt neo-Nazism of David Irving wasn't enough to get him black balled by English academia until he was stupid enough to sue one of the relatively few historians to call him out and he spectacularly lost his British style lawsuit with the judge noting his academic writing was obviously neo-Nazi propaganda.    About the only good thing I can say about psychology is that they have had a scandal over its appallingly loose standards of publication, review, verification, etc. when it's hardly the only area of academia, scientific and others, which are pretty bad.  There's way too much publication and way too little fact checking in modern academia, including science. 

NOTE:  In doing some reading for this the entire matter of the promotion of ideology as a virtue in science came to my attention again.  If I were not busy with the Louis Boudin book I'd ask why isn't the appropriateness of scientists listing the promotion of ideology AS SCIENCE the topic of rigorous debate because if there's one thing science was alleged to do it was to exclude such stuff from the literature of science.  That's not a modern issue, as I've noted Haeckel, writing as a scientist in a book held by scientists to be high science lavished praise on Darwin for giving the final victory to his own ideology of materialistic monism.  One of the papers I looked at yesterday praised Darwinism for making "naturalism" the required framing of psychology.   I know it must mean ideological naturalism because, as I point out above, methodological naturalism is impossible in the study of psychology.   You can't even get past the most obvious and overt of active subjectivity in the topic of psychology, which was another of the alleged purposes for the invention of scientific method.

if the makers of that instrument really foresaw what they were doing

 if the makers of that instrument really foresaw what they were doing, and the consequences involved, and yet left such questions to be determined as they have done, with no provision for what might occur while the legislation was undisputed, anything more unfinished than their work can be scarcely mentioned

Richard C. McMurtrie

CONCLUDING THE FIRST chapter of Government by Judiciary,  Louis Boudin did a little tidying up of things before he continued.   He showed in this chapter that there were various excuses for and definitions of what has turned into government under the direct rule of the Supreme Court, overturning, at will, democratic and even republican governance.  The excuse that it was necessary to a written Constitution for them to have some power in that direction, as argued by James Wilson (and others from the Constitutional Convention, BUT NOT BY ALL OF THEM), morphed into what is conventionally asserted and incorrectly universally believed were those powers claimed by John Marshall and his colleagues in Marbury vs Madison, which further changed with ever more frequent and ever more expansive powers which, by the time of the Legal Tender cases, meant no more or less than the Constitution - when that was resorted to by the "justices" - meant only what a majority on the Court deemed it to mean for any particular ruling,  that governing Court majority having no more fidelity to the previous rulings of the Court declaration of what the Constitution said than they did the document, its legislative history or its supposedly fixed meaning as established by lower court judges - some of them certainly better and more honest scholars of the law than some of the sitting "justices" - or by their colleagues on earlier Supreme Courts.

That the Legal Tender Acts under which we have been unfortunately living now for some sixty-five years were absolutely unconstitutional as well as unwise, unjust, and oppressive, has been asserted not only by the great judges who constituted the majority of the United States Supreme Court in the first Legal Tender case, but also by other wise and great men. For the ghost of those acts will not down; and there are some learned constitutional lawyers who still believe that those acts were unconstitutional—even though officially, we must, as good patriots, consider them constitutional.

And it is interesting to note in this connection that it was the decision in the last of the Legal Tender cases that gave rise to the early works making the beginning of the modern literature on the subject of the Judicial Power. It happened in this way: After the decision in the last of these cases (Juilliard v. Greenman, 110 U.S. 421) was rendered in 1884, declaring legal tender laws constitutional both in peace and war, George Bancroft, the
great historian of the United States, as well as of the Constitution of the United States, wrote a pamphlet under the title The Constitution Wounded in the House of Its Guardians,  in which he roundly scored that august tribunal for its decision, and predicted untold evils to the country and to our institutions as the result of the complicity of the judiciary in foisting upon the country this dishonest, oppressive, and unconstitutional legislation, Mr. Richard C. McMurtrie, a famous lawyer of that day, replied in a pamphlet entitled A Plea for the Supreme Court: Observations on Mr. George Bancrofts Plea for the Constitution, in which he defended the United States Supreme Court against the great historian's attacks. In his defense of the Supreme Court in its final decision on the legal tender question, Mr. McMurtrie declared himself whole-heartedly in favor of the right of the judiciary to declare laws unconstitutional, but defended this right in a manner which seriously threatened that power as it was then beginning to shape itself. Briefly stated, his thesis was this: The power of the Federal Judiciary to declare laws unconstitutional is not given expressly in the United States Constitution. It is based upon logical deduction or inference from the whole system of government provided for by that instrument. In other words, it is what lawyers call an “implied power.” But if the entire Judicial Power can be based upon a mere implication, then other vast powers may have been granted by the Constitution in the same manner; and there is no valid reason for assuming that the judiciary is the only one to whom great powers have been granted by implication. If, therefore, Marshall and his followers were correct in exercising the right to declare legislation unconstitutional, Congress should have the right to enact all such laws as it may reasonably find implied in the powers granted to the legislative department by the Constitution. 

I will break in here to, again, note that among those who hold themselves up as the biggest, fattest "originalists, textualists, founding-father-fudamentalist"  "balls-and-strikes-umpire" pretending scholars of the Constitution and its alleged meaning are also the ones who found such extra-Constitutional powers that made presidents (of their own party) into kings and tyrants under unitary executive theory.   That isn't shocking in the least since their professional lives are spent in the make-believe of such "originalism" and, especially, "textualism" as created this Court power and, unadmittedly or unreflectingly expanded it out of any possible interpretation of the stated intentions of even the most supportive of the Founders generation, such as Wilson and Hamilton.  That "stench" that Justice Sotomayor startled the cultured and delicate Court watchers by admitting she smelled has only grown in strength.  It's been there from at least Marbury vs Madison, though I'm sure it was there earlier.  And not just in instances in which such powers were claimed by John Marshall and his colleagues but pervades such things as the slavery decisions of his and other courts.  

I'm not cultured or delicate or a lawyer who might hope to remain respectable and work in the courts and I don't mind calling shit "shit" and noting it stinks.

In the course of his Observations Mr. McMurtrie said:

“Let me ask, whence is derived this power that we are now discussing, that of declaring void a legislative act? ... Is there any such grant in the constitution, or any allusion to it? Since C. J. Marshalls judgment in Marbury v. Madison, I should have said, but for the facts contradicting me, that no one probably has been able to question that the power does not exist, and that it was created by the Constitution. But it is a mere deduction of logic. Impossible (to my apprehension) for a sane mind to question, but still derived by tacit implication, a process which one of the most conspicuous members of the Convention assured the most important of the communities that enacted the instrument, could not be a ground for asserting a grant. 

“It is certainly true that before the adoption of the constitution Mr. Hamilton asserted this power was placed with the Court, but he limited it to the determination of the extent of the powers granted by the instrument; and if the makers of that instrument really foresaw what they were doing, and the consequences involved, and yet left such questions to be determined as they have done, with no provision for what might occur while the legislation was undisputed, anything more unfinished than their work can be scarcely mentioned. But intended or not, is it not a power that is to be ascertained to exist by reasoning and reasoning only? Why is the judiciary the only branch of government, whose views as to the powers they possess by the grant, are to be regarded? If this be not implication and inference, and the exact converse of an express grant, I am at a loss for a meaning to these words.

“Therefore it seems to me plain that as it has been demonstrated for seventy years, and acquiesced in by all, that one of the most important functions of the government, nothing less than a control over legislatures, executives and the sovereignties which formed the United States, has been created and lodged by inference, and by inference only, in one branch of that government, uncontrollable by the united powers of the imperial state and of the states which constituted the imperium, and this has been done without any reference to the subject in the Constitution, and probably as to one branch of the subject (the right to determine the illegality of state legislation), without any person concerned in the matter, seeing that it had been done, is it impossible that other high powers may be found to have been similarly granted?''

This certainly did not fit in with the new conception of the Judicial Power which the Supreme Court had unsuccessfully attempted to exercise in the Legal Tender cases, and which it did successfully exercise in the Civil Rights cases, and which was destined to make it that “supreme authority” in the United States Government of which Judge Baldwin speaks, and which it undoubtedly is today. It was therefore up to the advocates of that
power to abandon Marshall's logic as their main reliance, and to look elsewhere for new foundations for the new Judicial Power. In response to this urgent demand for new props for the Judicial Power, Mr. Brinton Coxe, a noted lawyer and scholar, undertook to prove that Mr. McMurtrie was wrong in asserting that the Judicial Power rested merely on inference, and to demonstrate the existence of an express grant of that power in the United States Constitution, notwithstanding the fact that neither Marshall nor any of his successors had ever claimed any such express grant. Unfortunately, Mr. Coxe did not live long enough to write his treatise, which was to be entitled An Essay on Judicial Power and Unconstitutional Legislation but he did write what he called an Historical Introduction to the contemplated work. This was published posthumously (Philadelphia, 1893) under the above title. Historical Introduction is in itself a substantial volume; and it is, to our mind, the only work of genuine scholarship produced by the supporters of the Judicial Power. We shall have occasion to discuss it at considerable length in the following pages. In the meantime we must turn our attention to another problem. 

I'm not certain, off hand, which cases Boudin meant as "the Civil Rights Cases," though I wouldn't be surprised that if those dealt with minority rights, that the Court and such as those who brought business to them would think there was much in the way of pressing necessity in doing justice to mere humans when more important issues surrounding money and wealth and the accumulations of it by the wealthy clamored for their attention.  

I'm tempted to skip much of the discussion of these works, especially the last one.  They go into enormous detail over the matter of the alleged evils of governments being permitted to issue paper money, something which, a few really crack-pot level gold-bugs, excepted, we all accept with, up to fairly recently, less in the way of economic catastrophe than the metal-coinage years of such asserted virtue.   I will remind you that James Wilson, associate member of the Supreme Court who spent time as a member of the court in a debtor's prison, managed to get himself in trouble over land speculation, borrowing and an economic crisis in 1796.  Yet such concerns are as much a part of the Court and its weather-vane discernment of the true meaning of The Constitution, such as we are seeing in a really big way as the Roberts Court turns previously decided law on its head. 

I wish those idiots who wrote the Constitution had taken a little more time with the next-to-impossible matter of amending their work because in a lot of places their work turns out to really suck.

Hate Mail - The Quick Answer

BARBARA EHRENREICH'S 1997 essay The New Creationism provides a good specimen of the kind of dishonesty I referred to when I noted that the common received wisdom about Darwin and Darwinism is full to the top of easily corrected lies.  I use it only because it was recently thrown at me in accusation and ignorance, accusing me of the over-the-top kind of stuff that Ehrenreich cherry-picked to ridicule humanities-faculty-lefty style, politically based rejection of science when I've not only never done that but never entertained that stuff as more informed than what I have, in fact, rejected.  My criticism of Darwinism begins in its support of eugenics, scientific racism, etc. for which it provides its modern basis.  But my criticism also includes my contention that it is not a particularly good example of following scientific methodology.   I think it's a good example of the incorporation of class, ethnic, etc. bigotry into science through a combination of sloppy use of language, reification, the misidentification of artificial, man-made law as laws of nature,  self-interest and plain old bullying.

The paragraph I chose from Ehrenreich begins with a disarmingly generous admission, that those who she held up to ridicule had a point.

The new secular creationism emerged as an understandable reaction to excess. 

But she quickly starts to distort the record of conventional Darwinism, pretending that the mainstream of Darwinism, to which Ernst Haeckel, Francis Galton, W. R. Gregg, Thomas Huxley, and the entirety of what she dismisses as Social Darwinism were not the actual, published, taught and built on scientific tradition that started with Charles Darwin,  the man who cited all of the above, as not only producing valid science but, in the cases of two of the worst, Haeckel and Galton, lavishly praising exactly their worst eugenic, scientific racist, sexist and even genocidal content. 

Since the nineteenth century, conservatives have routinely deployed supposed biological differences as immutable barriers to the achievement of a more egalitarian social order. Darwinism was quickly appropriated as social Darwinism -- a handy defense of economic inequality and colonialism. 

Starting with the fact that Charles Darwin explicitly based his theory of natural selection on the political-economic theories of Thomas Malthus, based entirely on the British class system as if it were a product of "natural law" instead of human made, aristocratically made, ROYALLY MADE law by probably the most extreme of imperialist powers, you would have to overlook that glaring fact to assert there was a difference.  Of course, for those who were part of the British upper class, such as Malthus, such as Darwin, such as Galton and most of the other British men of science, the British establishment right up to the Queen all had a vested economic and social interest in mistaking man-made class systems as aspects of the natural order.  As did other elites in other places who pretty much ran and, to some extent, still do run science.

Natural selection is inherently and immutably an assertion of biological inequality and so, to materialists and biological determinists,  complete inequality among individuals and entire groupings of organisms within species and among different species.  As soon as his theory was published, its imagined application to the human species was made by Darwin and his closest colleagues including all of those named above and many others I could mention if you want me to. 

There is an ideological interest that shields it from real criticism as well as the fact that like any basic critique of the American Constitution legal system that forced basic reform would make  those holding professional expertise in those,  in science and the law need to learn a lot of new tricks very fast.  Never discount the force of professional interest among the professional class to resist that kind of criticism of what gets them their upper class lifestyle.

No number or character of add-ons like "mutual aid" can change that about the theory.  That aspect of natural selection is the very definition of what it claims to be a law of nature, what even as charitable and egalitarian a biologist as Stephen Jay Gould claimed was the most impressive of those human science has discovered. 

And whenever the theory has been applied to the human population it has been used to draw up rankings of human groups in terms of their valuation, or quality, or ability,  and everything up to and including what is, in effect, the right to have their lives preserved or ended.  All of that was known to Charles Darwin, he participated in that call and rather looked forward to the extermination of entire groups of People, especially when it was his anticipated British colonial extermination of the native populations of countries they had invaded and controlled.

In the twentieth century, from the early eugenicists to The Bell Curve, pseudo-biology has served the cause of white supremacy.

I'm sure it would be a surprise to a long list of academic, university based, published, peer-reviewed, taught, cited, built on Zoologist, Physiologist, Ethologist,  Evolutionary Psychologist white supremacists . . . not a few of whom were given Nobels and other highly sought after awards, including various ones named after Charles Darwin, that their eugenics and other work ranking "white people" over, typically, Africans and Native Americans but pretty much anyone they wanted to include as inferior to white, especially North-Western Europeans were not practicing biologists as they did their professional work.  

Charles Davenport, Harvard professor of Zoology and those who worked at the Cold Springs Harbor Lab he more or less founded would have been surprised that he was a "pseudo-biologist."  That is a trend in biology which, though he didn't start it, included Charles Darwin - and Thomas Huxley and Ernst Haeckel, etc.  It continues up till today among some of the most lauded and influential biologists of Ehrenreich's and my era, such as both James Watson and Francis Crick.

Most recently, evolutionary psychology has become, in some hands, a font of patriarchal social prescriptions. 

Which has been the mainstream practice of conventional Darwinist biology from its start.  Before the crimes of the Nazis TEMPORARILY put a lid on that it was, all of it, mainstream biology.   I have pointed out that the biology book mandated by the Tennessee legislature be used to teach biology in the 1920s when the Scopes Trial publicity stunt was mounted was uncontroversially full of Darwinism in that it included some of the most blatant of scientific racism and eugenics and, as my memory of actually reading through it tells me, patriarchal notions that are presented as valid science.*  In that its author was a entirely in the academic, scientific mainstream of his time, a time which started coming back in a big way with the reviving of scientific racism in the 1960s and 70s, Sociobiology and its spawn, evolutionary psychology were among the earliest successes of that reversion to type.

Alas, in the past few years such simplistic biological reductionism has tapped a media nerve, with the result that, among many Americans, schlock genetics has become the default explanation for every aspect of human behavior from homosexuality to male promiscuity, from depression to "criminality." 

Again, that is simplistic biological reductionism which was engaged in by the mainstream of academically credentialed, scientifically-mainstream science for the entire history of the science and, especially, in the wake of the publication of On the Origin of Species.   It is hard to make an honest case that something which was supported by Karl Pearson,  R. A . Fisher,  Watson and Crick, and literally hundreds of others high and low in the history and current profession of biology who could be named represent anything but the mainstream of biology.

Ehrenreich is close enough to my age cohort so that I think she was a child of the same post-WWII era media and educational practices I was, in which the actual pre-WWII nature of biological science was successfully covered-up because it was so intimately tied in with German and, so, Nazi eugenics and genocide.   You can hardly look at any, even the most cluelessly innocuous study-aids online and not see all kinds of lies such as the claim that Darwin believed in genetic inheritance and rejected Lamarckian inheritance of acquired traits when he, himself, supported Lamarckian inheritance and came up with a theory of that, himself.  The claim that such "default explanation for every aspect of human behavior," up to and including criminality was not mainstream Darwinist science could only be made in either complete ignorance of what Darwin, Haeckel, Galton, Pearson . . . up till today have claimed OR THROUGH KNOWING LIES. 

All you have to do is do what almost no one who makes such statements, ESPECIALLY IN THE MEDIA OF WHICH EHRENREICH HAS BEEN A PART, read Darwin and his conventionally acknowledged descendants who had and have mainstream careers in biology to see what a huge and successful lie that post-war cover-up of the consequences of believing in natural selection will always lead to.  Like the terrible lessons of the exposure of the crimes of the Nazis, the all-too-temporary eclipse of eugenics and scientific racism were already receding when she wrote that dishonest essay.   It will always return as long as natural selection is the required framing of thinking about evolution.

*  I have, years ago, here noted that it is ironic that the "evangelical" opponents of "Darwinism" as they imagine it to mean the teaching of evolution have rather fully adopted either passive or active eugenics pretty much as Darwin laid those out in The Descent of Man.  Darwin and his eugenicist sons and grandsons would not be that out of the mainstream of American Republican-fascism in 2022.  Including their opposition to universal vaccination, though they would almost certainly have supported it for the rich, the white, the socially prominent and academically credentialed as they sought to limit its availability to the underclass.  So much for claims that it's conservatives who are misrepresenting the legacy of Darwin.

If you want to fight about any of what I've said, I've got the citations and quotations to back all of that up. 

Even if you don't, if I get the time I will link to the posts I've written on these topics with their full citations and, when available, links to primary sources but I suspect most of the words will appear red if I do that.  This is the quick version of my answer.

Footnote About Executive Powers Not Written In The Constitution

IF YOU ARE TEMPTED to think that the question of unwritten powers claimed for the other two branches of government are a figment of my imagination you clearly weren't paying attention during the Reagan and George W. Bush administrations when future Supreme Court members were asserting the overtly fascistic theory of the unitary executive on behalf of Republican presidents they served as legal hacks.

Samuel Alito did so when he was working in the Office of Legal Council under Reagan as a means of un-illegalizing his covert arms sales-Central American terrorist funding operation, Iran-Contra, just as others have done and not only suffered no professional or legal consequences BUT WERE ELEVATED FOR THEIR PROMOTION OF FASCISM AS LEGAL SCHOLARSHIP.   

John Dean in his book "Broken Government: how Republican rule destroyed the legislative, executive, and judicial branches," after noting Alito's part in giving legalistic mumbo-jumbo to give the criminals in Iran-Contra cover, noted what happened when it came up during his confirmation. 

Judge Alito could not have been surprised when his position on unitary executive theory became a critical issue in his confirmation, and many people believe it was one of the key reasons [George W.] Bush selected him.  Yet Alito's answers to all questions relating to this radical theory were, as one journalist wrote, "either confused or less than candid."  For example, Alito was asked about a very recent dissenting opinion of Justice Clarence Thomas in Hamdi v. Rumsfeld (2004), claiming that The Founders intended that the president have primary responsibility and power necessary to protect the national security and conduct of the nation's foreign relations.  Thomas's dissent was a pure expression of unitary executive theory, written in unitarian-executive speak:

"The founders intended that the President have primary responsibility - along with the necessary power - to protect the national security and to conduct the Nation's foreign relations.  They did so principally because the structural advantages of a unitary Executive are essential in these domains.  "Energy in the executive is a leading character in the definition of good government.  It is essential to the protection of the community against foreign attacks."' The Federalist No. 70 (A. Hamilton).  The principle "ingredien[t]" for "energy in the executive" is "unity."  This is because "decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." [Emphasis added.]"

When asked about Thomas's opinion,  Alito's memory failed him - as it did every time this subject arose;  Alito did not recall Thomas's even using the term "unitary executive."  With Alito's confirmation to the Supreme Court there now are three justices who subscribe to this radical theory of expanded presidential powers:  Antonin Scalia, Clarence Thomas, Samuel Alito;  it is widely believed that Chief Justice John Roberts does as well.

I asserted at the time that every single person in the Senate Committee room knew that Alito (as well as Roberts) lied continually during their confirmations to cover up such activity of theirs, as well as other things other colleagues and the presidents they served did.   Such opportunistic forgetfulness is so common among these legal luminaries that that alone should call into question their fitness for the jobs they are to be confirmed for. 

Note that in coming up with his excuse favoring presidential lawlessness that Thomas didn't reach for the Constitution where no such powers are explicitly grated but to that most royalist, most democracy hating of the major founders, Alexander Hamilton in one of the propaganda papers written to promote the adoption of the thing.   I think Aaron Burr may have done more to save the United States as a republic than anyone who shot a red-coat during the Revolutionary War. 

I will note that the fascistic theory of the unitary executive was the creation of, if not wholly, mostly Republican law school faculties and other such intellectuals.   I have no doubt, whatsoever that it is not unrelated to the powers that the Supreme Court found for itself and, as Louis Boudin proved, shifted and expanded to the point where we have what I would guess would have been unthinkable to him, such things as the Bush vs. Gore decision in which five Republicans put a member of their own party in the presidency where he put two of those fascism friendly "justices" on the court and through "signing statements" attached to legislation he signed, announced he and future Republicans would practice such unwritten, unaccustomed powers of the presidency in the future. 

No doubt, as is typical of Supreme Courts, they would find ways of making such powers count only when the presidency is held by members of the Republican party such powers were creatively imagined for in the first place. 

I will also note that, bringing this chapter of Louis Boudin's book to full circle that James Wilson was responsible for a lot of the language in the Constitution dealing with the Executive Branch that modern Republican-fascists have used or distorted to promote presidential fascism.  I think Roberts and even perhaps Alito were a little bit scared when they saw how far that could go under a Trump (I have no doubt a Desantis or a Haley would do the same, though maybe not as gaudily) but I have no doubt that they would adjust their feelings to accommodate such a grab of power.   The legal profession is quite capable of coming up with permission for clients and sides to do what is clearly wrong, it's largely what they do, especially when they choose to serve the rich and criminal.

But if the entire Judicial Power can be based upon a mere implication . . . .

READING THE BOOK Government by Judiciary was full of pretty startling insights into the trouble with the Supreme Court as an institution and with the powers it has claimed for itself and, as was habituated through the decades and centuries of it being taught in law schools and civics classes, accepted unthinkingly and embedded into the lawerly and judicial manipulations to work things to the desired ends of the lawyers and judges and, worst of all "justices" and those of their class and clients, becoming the common received non-wisdom.  One of the most interesting to me was contained well in the next section I'm beginning to go over today, two main and other associated cases that expose what a sham the whole thing is.   It exposes the absurdity of the self-granted powers of the courts as defenders of The Constitution when the powers are no where found in that Constitution.   If they can do it, why can't the other two allegedly co-equal branches find that their given, even greater explicitly granted powers, contain hidden powers, as well?

Briefly stated, his thesis was this: The power of the Federal Judiciary to declare laws unconstitutional is not given expressly in the United States Constitution. It is based upon logical deduction or inference from the whole system of government provided for by that instrument. In other words, it is what lawyers call an “implied power.” But if the entire Judicial Power can be based upon a mere implication, then other vast powers may have been granted by the Constitution in the same manner; and there is no valid reason for assuming that the judiciary is the only one to whom great powers have been granted by implication. If, therefore, Marshall and his followers were correct in exercising the right to declare legislation unconstitutional, Congress should have the right to enact all such laws as it may reasonably find implied in the powers granted to the legislative department by the Constitution. 

Keep that in mind because I think it's an extremely important question.

Why not?  Unlike the unelected judiciary, appointed by the president and confirmed by the, originally, as well, unelected Senate, the House of Representatives and the President are directly placed into that position by what is pretended by the Supreme Court and the Constitution to be the ultimate authority, the Voters.  Though, as the Roberts Court and other Courts in the past have shown repeatedly, when Supreme Court "justices" make resort to such claims, they have little to no respect for the actual Voters being able to cast a vote and to have that vote count.   Whatever dangers you can point to in the elected Legislature enacting laws is as true of the Supreme Court's claimed powers, and in the case of the Legislative branch, it's far harder to enact a law and it has to, generally, have the assent of the President whose abilities to do such things as fund his own over reaching ambitions are checked by the House and Senate - theoretically, at least.   There are no such checks on the assumed powers of five or six Supreme Court "justices".   Though the same fascist legal theorists who have packed the courts have come up with theories that under their interpretations of the words of the goddamned Constitution give presidents (of their own party) dictatorial powers, at least a couple of the sitting members of the Court would seem to, at times, at least, agree with that.  When it's a president of their own party. 

The importance of that point is made quite clear by the dry sounding Legal Tender Cases and the conclusions to be logically drawn from them.

-------------------------------

OK, this is important to seeing through the common received and mandated point of view of this and I'm going to give it to you in large pieces.  Note that I have tried to attach footnotes on the printed page with the paragraphs or even within paragraphs to which they apply, putting the footnotes in square brackets and using ellipses when I have broken a paragraph, hopefully for clarity. 

 The moral of this case is the same whatever our guess may be on the last subject, and whatever our opinion may be as to which court decided correctly the famous case of Lewkovncz v. Queen Aeroplane Co. And that moral is; That legislatures do not usually pass laws which fly in the face of the constitution, and that when a legislature passes a law there is at least room for argument as to whether or not it is constitutional, so that honest men may honestly differ about it. Also, that giving judges the power to pass upon the constitutionality of legislation does not necessarily protect us against unconstitutional laws. And it may suggest at least the possibility, under our system, of law being declared unconstitutional which are not really so.

The last point is brought out strikingly in the Legal Tender Cases. In February, 1862, in the midst of the Civil War, Congress passed a Legal Tender Act which made irredeemable paper money legal tender for all debts. The act was passed after considerable agitation in the country and long debates in Congress, in which the opinions, pro and con, moral, political, and economic, were thoroughly canvassed and duly considered. It was passed on the
recommendation of that great jurist and statesman, Salmon P. Chase, then Secretary of the Treasury and afterward Chief Justice of the United States, who considered the measure wise, just, and presumably constitutional.

[There has been some question as to what was Chase’s original position on the constitutionality of the legal tender legislation. It seems to us that there can be no doubt of the fact that, whatever misgivings Chase may have had as to the advisability of the issuance of legal tender notes except in a case of extreme necessity, he
could not possibly have doubted the constitutionality of the legislation actually recommended by him. Aside from the extreme improbability of a man of Chase's type recommending unconstitutional legislation, it must be remembered that the question of constitutionality hinged on the question of necessity, and Chase’s final
recommendation of the legislation was due to the fact that he had become convinced of its necessity. Mr. Justice Strong, speaking for the Court in the Legal Tender Cases, said: “Even the head of the Treasury represented to Congress the necessity of making the new issues legal tenders, or, rather, declared it impossible to avoid the necessity.”]  

February, 1870, after the law had been in operation for eight years and its constitutionality upheld by every State Court but one, the United Supreme Court declared this law unconstitutional by a divided court, Mr. Salmon P. Chase, as Chief Justice of the United States, writing the prevailing opinion. . .

[Justice Miller, in his dissenting opinion in Hepburn v. Griswold, said: “Fifteen state courts, being all but one that has passed upon the question, have expressed their belief in the constitutionality of these laws.”]

. . . The minority of the court wrote vigorous dissenting opinions. At the time of the decision the court consisted of seven members, four of whom constituted the majority declaring the law unconstitutional. There were two vacancies in the court at that time, and on the day when this decision was announced the President filled the two vacancies by appointing two new judges. It so happened that, technically, the decision rendered applied only to debts contracted before the passage of the law, although the rea-soning of the court was broad enough to include all debts; and it was commonly believed by the profession and the country that the opinion written by Chief Justice Chase settled the question of the constitutionality of the law both as to pre-existing debts as well as to debts incurred after the passage of the law.

After considerable manoeuvring which need not be gone into here, the subject obtained a new hearing fifteen months later, with the result that the court reversed its first decision and upheld the constitutionality of the law both as to pre-existing as well as after-incurred debts. The decision this time was by a majority of five to four, the minority consisting of the four judges who constituted the original majority; while the new majority consisted of the three judges who constituted the original minority plus the two new judges. These cases will be considered at considerable length further below. Here we shall only remark the following:

The Constitution, as is usually the case when the constitutionality of a law is called into question, is silent on the subject in so far as its express provisions are concerned. Both sides, therefore, argued by a process of deduction. So far the famous Legal Tender case was like the obscure Lewkowicz case. But the Legal Tender case involved really momentous questions. And the arguments, while seemingly technical, were in reality of a quite different character, in that the upholders as well as the opponents of the constitutionality of the law argued not from dry texts and legal erudition but frankly from political and economic considerations. The upholders of the law considered it wise, just, and, above all, absolutely necessary for the preservation of the very existence of the nation in war time. On the other hand, the opponents of the law held it to be not only unwise and unjust, but also utterly unnecessary for the successful conduct of war. In short, they thought it an utterly worthless and even harmful law both in peace and war. And both sides were quite convinced that the Constitution was on their side. Their respective dissertations on the subject are interesting examples of what lawyers and judges mean when they say that a law is either constitutional or unconstitutional, when they speak in terms of living reality instead of legalistic jargon.

But the controversy did not end there. Fourteen years after the original decision of the Supreme Court holding the wartime Legal Tender Act unconstitutional on the ground that even the urgency of war does not give Congress the power to pass such a law, the same Supreme Court decided that Legal Tender laws are constitutional not only as war measures but even in times of peace. In the meantime the court had undergone some more changes in personnel. Chief Justice Chase was gone, and so were Judges Nelson and Clifford; so that of the former majority of the court
who declared the Legal Tender Act unconstitutional Judge Field alone remained on the Bench, and he wrote a very vigorous dissenting opinion, protesting against the decision of the court which
now held that Congress had the right to do in times of peace something which it had fourteen years ago held could not be done even as a war measure.

The following lessons may be drawn from this preliminary examination of the Legal Tender Cases:

First: Honest men will honestly differ as to what is wise, just, or expedient, in public measures.

Second: In a government like ours, in which the judges possess the power to declare laws null and void for alleged repugnance to the constitution, every judge tries to read into the constitution his notions of what is wise, just, or expedient.

Third: In passing upon the constitutionality of a law our judges interpret the constitution in the light of their notions of what is wise, just, necessary, or expedient; and declare unconstitutional what they consider unwise, or unjust, or inexpedient,— being guided almost exclusively by their philosophic, political, social, and economic beliefs, and little or not at all by constitutional texts.

Fourth: Under our system, which gives the judiciary power to declare laws unconstitutional, important laws which are constitutional under our own established mode of testing the subject  be declared to be unconstitutional by the judges and there is no redress. If it had not been for the chance of the change of personnel at the very time that the original decision on the Legal Tender Act was rendered, that decision would still be law today, and would have inflicted upon the country the untold woes which the original minority foretold would be the result of that unfortunate decision.

Fifth: Giving the judiciary power to declare legislation unconstitutional does not protect us against unconstitutional legislation. For if Mr. Chief Justice Chase and Associate Justices Nelson and Clifford and Field be believed, we have been living under unconstitutional legal tender laws ever since the passage of the original Legal Tender Act in 1862, with the brief interval of fifteen months which elapsed between the first and second legal tender decisions.

Not being a lawyer or law scholar or judge or "justice" I will assert that Louis Boudin was being lawerly in his limits put on the problems of such judicial thinking to abstract ones, I think it is at least as likely if not more so than the personal preferences and desires, the class, ethnic and financial interests, the partisan interests of the "justices" have constantly motivated their finding impersonal and, so, dishonestly clean reasons for doing what they do from the bench.  I would guess that that's often truer than not when it is a case of clear judicial injustices in which the economic, ethinic, religious, or social class the "justice" belongs to benefits and one he or she is not a member of suffers as a result of their ruling.  Perhaps the nobler of the dissents are less infected with that than the winning majorities, I'd have to be a far better scholar than I can imagine being to discern that but it's my hunch that is the case.  If my hunching is any better than Supreme Court "justice" hunching is something I'll bet isn't decided in view of their legal educations and my lack of it.  You don't have to have gone to college to know grift and a con job dressed up in pantomime black robes.  In the case of the original majority in the Legal Tender case, their hunch would have been a continuing and intolerable disaster for the country and the world if it had remained in place.  And it dealt with money, something dear to all of their hearts. 

Personally, I'd like to see all judges and "justices" be required to take the robes off.  It might surprise you but I don't mistake them as religious figures or even elevated ones, they should be defrocked of such implications that so impress idiots in theatrical presentations and court reporting.    The Roberts Court should dress in sack cloth and ashes for its rulings overturning equality and justice.