May They All Spend An Aeon In Hell - To Make That Distinction Of The Worst Of The Worst Of Murderers You End Up Thinking Like One Of Them Our Intellectuals Often Do

IT IS DOUBTFUL that many of the young to middle-aged Twitter-tots would recognize the name of Bertrand Russell but to lefties of my generation he was a hero, due to his secularist, anti-religious nonconformism, his reputation as a giant of logic, though few if any of us could follow him on that count, but, to me at least, for his role in the anti-nuclear movement of my youth and young adulthood. 

I thought of something Russell said in the early 1960s when someone sent me a post from Baby Blue a little while ago slamming the hapless diplomat Michael McFaul for committing the recently created sin among those in-the-know -  which I don't remember being a sin - of comparing Putin to Hitler.  McFaul, quickly realizing he'd violated a rule that I don't remember being a rule until recently, apologized abjectly but, in the way of secularist in-the-knowism, there is no such thing as forgiveness and redemption for violating such rules.  The condemnation of him has been something to behold.

I wonder what those in the online commentariat, untillectual class would have made of this.

“We used to think that Hitler was wicked when he wanted to kill all the Jews, but what Kennedy and Macmillan and others both in the East and in the West pursue policies which will probably lead to killing not only all the Jews but all the rest of us too. They are much more wicked than Hitler and this idea of weapons of mass extermination is utterly and absolutely horrible and it is a thing which no man with one spark of humanity can tolerate and I will not pretend to obey a government which is organising the massacre of the whole of mankind. I will do anything I can to oppose such Governments in any non-violent way that seems likely to be fruitful, and I should exhort all of you to feel the same way. We cannot obey these murderers. They are wicked and abominable. They are the wickedest people that ever lived in the history of man and it is our duty to do what we can.”

— Bertrand Russell 

Would him saying that today get him on the list of those with Twitter cooties?  The unforgivable?  The forever damned?

It should always go without saying that Hitler was surpassingly evil, but other surpassingly evil men have also killed tens and scores of millions of People, done terrible things short of murdering, blighted lives and landscapes, continents and history.  There is something surpassingly vulgar and unspeakably vile about excusing one of them as being less evil by denominating someone as the most evil.  How are you supposed to do that?   By the numbers murdered?   Given the difficulty of figuring mass murders into the tens of millions, there are such estimates that would put Stalin and Mao ahead of Hitler in such a means of measurement.  

Worse, is, of course, practicing Nazi thinking by giving a variable weight to the value of lives taken according to what group they were part of that got them placed on a list for extermination.  And I think it's often done on the most Nazi like of thinking about race and ethnicity as rendering people unequal in value.  Or, really, assigning People to the practice of valuation.   That is something which Western intellectuals and scribblers and politicians have done, it is endemic to the kind of "enlightenment" thinking which Russell, as well found it hard not to practice.  

It is why, as I've pointed out, some of my once fellow lefties could wax nostalgic over crap like the Progressive Labor Party and other Maoists who had their Maoist asses planted firmly and safely on the democratic United States as their hero, Mao,  was planning and overseeing the murders of millions during the Cultural Revolution.  That someone in the 2000s writing for what is taken as a respectable magazine could write about that moral atrocity in terms of nostalgia certainly proves that for them that the lives taken were not Europeans makes them of lesser value, if they even consider them worth considering. 

I've pointed out that the great leftist historian Howard Zinn noted something like that about the Harvard historian and biographer of Columbus the initiator of the European genocide of the inhabitants of the Western Hemisphere, Samuel Elliot Morrison.

 Past the elementary and high schools, there are only occasional hints of something else. Samuel Eliot Morison, the Harvard historian, was the most distinguished writer on Columbus, the author of a multivolume biography, and was himself a sailor who retraced Columbus’s route across the Atlantic. In his popular book Christopher Columbus, Mariner, written in 1954, he tells about the enslavement and the killing: “The cruel policy initiated by Columbus and pursued by his successors resulted in complete genocide.”

That is on one page, buried halfway into the telling of a grand romance. In the book’s last paragraph, Morison sums up his view of Columbus:

"He had his faults and his defects, but they were largely the defects of the qualities that made him great—his indomitable will, his superb faith in God and in his own mission as the Christ-bearer to lands beyond the seas, his stubborn persistence despite neglect, poverty and discouragement. But there was no flaw, no dark side to the most outstanding and essential of all his qualities—his seamanship."

One can lie outright about the past. Or one can omit facts which might lead to unacceptable conclusions. Morison does neither. He refuses to lie about Columbus. He does not omit the story of mass murder; indeed he describes it with the harshest word one can use: genocide.

But he does something else—he mentions the truth quickly and goes on to other things more important to him. Outright lying or quiet omission takes the risk of discovery which, when made, might arouse the reader to rebel against the writer. To state the facts, however, and then to bury them in a mass of other information is to say to the reader with a certain infectious calm: yes, mass murder took place, but it’s not that important—it should weigh very little in our final judgments; it should affect very little what we do in the world.

No one will ever get me to believe that he would have done that if those enslaved, murdered and wiped out had been white, Western Europeans.  He would not have figured that was an unimportant, though unfortunate detail of his life's story.

That is what's most dangerous about this, is that you can't make the claim that Hitler's surpassing evil was more suprassingly evil than that of Stalin or Mao without doing what was done in both of those cases, holding, tacitly if not explicitly, that some lives taken by dictators are more significant than those taken by other dictators.   In the case of Putin in Ukraine, if his nuclear or biological or chemical weapons are used as we have every reason to believe he is contemplating as Russell warned about, he may be recreating or surpassing what Stalin did in the Holodomor, the genocide by starvation he mounted against Ukraine in the 1930s.   I would bet that easily most of the Twitter-blog-rat crowd would have never heard of that before this year, if they have now.  

May they all spend an aeon in hell for their evil.  All of them.  I won't dishonor any of the victims by ranking their killers as less-evil-than.

Breaking The Most Ingrained Of Bad Thought Habits Will Be Necessary To Save Us - No Matter What The Clever Guys Think You Can't Have Both

IN TALKING ABOUT THE DANGER of the undemocratic, unanswerable, life-time appointed Supreme Court grabbing and creating powers for itself, on its own, I said that it's difficult for me to imagine what it would be like if the Court had those powers taken from it and put back to what such courts in other countries do and what, apparently, the Court was originally imagined as being.  Deeply ingrained habits of thought and a lack of alternative information are an obstacle to changing things, so is the pessimistic, sometimes cynical acceptance of the present evil because even if you can imagine something different you don't have faith in enough other people to imagine that they, presented with the dangers of our run amok Court could accept that change. 

But this is about Tucker Carlson carrying Putin's polluted water into the minds of FOX viewers, very possibly preparing his dupes for the Putin use of biological weapons in his war on Ukraine, hoping to blame it on the Ukrainian government and the Biden administration.   Tucker Carlson is Putin's Axis Sally, FOX is his #1 media asset in the United States and  Republican-fascist oligarchs are all-in with him in that. Certainly including those on the courts (and not a few idiot "civil libertarians"),   That's not in any way shocking, FOX and its allies in the media put Trump, Putin's most important asset in the White House, after all.  

This is a direct product of the way the Supreme Court interpreted the First Amendment and, I'm going to say, the lazy and truncated process of the First Congress in writing the "Bill of Rights" with its absurd absolutist language that, expanded by post-WWII courts has enabled the biggest, most corrupt liars into doing to the American People what Putin does in Russia, controlling power through mass media magnified lies.  It comes from idiots on that and other courts pretending that lying through mass media is NOT far more of a danger than unamplified lies heard by a limited number of hearers.

Either you really believe the obvious, that Putin's puppet, Trump nearly destroyed the fabric of America's deeply flawed electoral democratic process through lies AND YOU CARE ENOUGH ABOUT THAT TO MAKE SURE LIES CAN'T BE USED TO DO THAT AGAIN or you may as well admit that you are an asset in that effort.

I realized that a long time ago, that what got us here were the lies spread by the media when they weren't originating them, just as what got Russia where it was were the lies that they got fed to them through the mass media.   Dictators, especially modern dictators gain and keep power through lies, democracy depends on The People knowing the truth. 

THERE ARE SOME THINGS YOU CAN'T HAVE BOTH WAYS, no matter how cleverly you think you can manage things to get what you want.

- You cannot have both slavery and freedom, as the framers of the Constitution thought they could.   Jefferson and Madison demonstrably chose to believe they could have freedom for white males but not for Black People.   They, both of them intellectually sophisticated men were wrong, their personal selfishness and economic greed triumphed over their cleverness.   Lincoln was right about that, I think his refusal to participate in slavery and his refusal to overlook it augmented his intelligence.  Being right about something as real and important as human equality is one of the guaranteed symptoms of superior intelligence, one so often lacking in those of conventional intellectual status. 

- You cannot have the benefits of the truth, among which the Gospel of John tells us is freedom, while permitting the massive and stupid lie that anyone has a right to lie.  Yet our courts, staffed with people of such conventional intellectual status, tell us that there is not only a right to lie but because the like of Madison wrote the First Amendment so carelessly and so irresponsibly to imply nothing should be done about even the most dangerous of lies, SUCH AS ISSUE 24-7 FROM OUT MASS MEDIA, even as we have experienced close calls and dangers and disastrous results of that.   For the comfortable, the wealthy, the safe due to their wealth, they don't really much care about even the most deadly results for other people.  Especially Poor People, Black People, other People of Color, Women, LGBTQ, . . .  As I surprised at least one person when I said it,  it's no wonder that people as corrupt as Clarence Thomas and Amy Coney Barrett would issue rulings and concurrences stripping Black People and Women of their full person hood, white men have been doing that to other white men and Black People and Women for the entire history of the Supreme Court.  

There is a seductive stupidity among those of such conventional superior intellect that permits them to imagine that they can engage in extremely dangerous behavior which can be expected to result in terrible consequences that leads them to believe they can control the danger and work it to their advantage.  I think that is what a lot of clever Republicans thought they could do in managing the racist, violence prone fascist element that they welcomed within their party, providing the financial-Republicans, the money-men, with electoral victory while controlling them to minimize the violence and danger for themselves.  They learned in some numbers that they aren't able to do that and they are not tempted to try again what, in Trump, became dangerous enough for their intelligence to overcome their selfishness.

Clearly William Barr who announced this week, even as he promotes a book trying to distance himself from his corrupt lawyering for Trump says that he would vote for him again in two years, is the poster boy of Republican-fascist intellectual degeneracy.   It's not as if that wasn't apparent when he worked for previous Republican presidents, doing the lawyerly thing of coming up with schemes for letting them do clearly wrong and illegal things, coming up with lawyerly ways to let them get off for doing that.  Our legal system does that all the time for the rich and powerful and to service it's own prejudices.   I think that rot throughout the legal system gets a lot of its permission to do that from the corruption of the  self-created imperial Supreme Court but that's a really long argument.  

We, if we survive, have to make the choice.  You cannot have a government that is both democratic and not egalitarian.  You cannot have a government which is corrupt on behalf of one group of people and which does justice for everyone.  You can know the truth and the truth will make you free - that truth including that you are to do to others as you would have them do unto you - or you can privilege lies with the lie that there is a right to lie and the results will be the loss of freedom and the evils of despotism.  

There is no reason for us not to learn from the terrible history of the last two hundred fifty years, only idiots refuse to learn from the consequences of choices and actions - what makes history important to know - and our Constitutional system makes idiots of us all if we think we shouldn't change our course even with our experience of such dangers as Trump and the horrific example of Putin to teach us the hardest of lessons.  

We can have egalitarian democracy or we can have FOX with Tucker Carlson carrying Putin's water along with a good number of Republican-fascists who our media have put into power.  We can't have both.

an instance of rebellion on the part of a dissenting member of the United States Supreme Court not duplicated in the entire history of that court

THE OUTRAGEOUSNESS of the Taney Court majority in the Dred Scott decision declaring that no Black Person could be a citizen of the United States through the lie that that was the intent of "the framers" when they wrote the Constitution and reaffirming AND VASTLY EXTENDING the "rights" of slave-masters and entirely denying the rights of people living in free territories and states to make the laws that govern them and those visiting their states are rightfully the primary things noticed about it.  The evils of things like their Court nullification of the Missouri Compromise in the real lives of real slaves and others, the purpose of the Taney Court's outrageous action, are the results of and substance of the danger of its usurpation, just as the nullification of the Voting Rights Act and its re-nationalization of the bodies of Women is in the neo-Taney Court under Roberts is the manifestation of their power grab.  But the means through which they forced those ends, their origin, is in the Court's nullification of democracy and the common good.

In typing out this section I am a little afraid that a legalistic assertion by Boudin might be misunderstood.  It was the assertion that, when the Taney majority decided to demote Nelson's original decision for the one Taney would author, sealing his infamous reputation for all time, the assertion that any court coming to the conclusions as to the Supreme Court's power to declare duly enacted laws unconstitutional, could rightfully decide on the legal person-hood of any group of people, excluding them permanently from citizenship seems outrageous.  And if it was asserted that that right of the Supreme Court was real, it would be an unfortunate way of putting it, at bets.

It is an outrageous notion in normal meanings of talking about reality, about real life and real lives.  Though not if you consider he was speaking merely in the terms that lawyers, judges and "justices" use to turn words on their heads, none of those more so than words such as "rights" when such rights are not those endowed equally by God but, in the law,  are the artificial inventions of such things as Supreme Courts, which would better be considered a species of unequally granted privileges.  "Justices" and, to an extent, other judges can create hypotheticals that have no real existence but which become, on their say so, powers that lead to real life results, from mild to disastrous effect.   The powers given to judges and, even more so, such "justices" as our Constitution created are too dangerous to not question.

It's one of the reasons that such powers of creation by an unelected, unanswerable Court are so dangerous and that there should be some mechanism for rejecting rulings when they are dangerous and unjust, the theoretical means of doing that through amending the Constitution is inadequate and often impossible.  

If it were possible to get rid of the expansive powers of governance that the Court gave itself, the problem might be far more manageable.   We seldom consider just how artificial and arbitrary "the law" is and how much obvious wrong is accomplished through that artificiality and arbitrariness.  No Court, no Constitution has a "right" to nullify the full person-hood of anyone, there was never any right by those truly vile and evil men who issued the Dred Scott decision to give what they said the power of the State or the slave-power they served in doing it.   More about that later.   

I am certain that Louis Boudin, in his real life, would never have considered anything they did in regard to declaring Black People or anyone else to be non-persons was rightfully done.  This is an example of how legalistic thinking is an inadequate stand-in for reality.

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Louis Boudin notes that the two dissents from the Dred Scott decision were extraordinarily strong, in the case of McLean, unprecedented in its condemnation and rejection of the power grab the Taney majority had to do to come to their preferred, predetermined conclusion that would cement slavery into the law - no doubt they hoped permanently - end abolitionist agitation for its end, vastly expanding the powers of slave-holders to extend the evil institution and to override the laws of any states where they were in the minority and, so, could not win such privileges through the vote.   The privileges that the Taney Court gave to slave owners is something that should be considered more.

The decision was that the lower court was right in its decision upon the merits of the case, but wrong in considering the case upon the merits - for the reason that Scott was not a citizen within the meaning of the U.S. Constitution, and could not, therefore, sue in the Federal courts. (19 How., 393)  The disposition of the case was that the judgement for the defendant upon the merits should be reversed and the suit dismissed for want of jurisdiction.  This, it will be noted, was contrary to the disposition which the Supreme Court had originally decided to make of the case, as shown by Judge Nelson's opinion,  which was that the judgement be affirmed.

In order to appreciate the significance of this change, it should be remembered that it mattered not in the slightest either to Scott or to his master whether the judgment of the court below was affirmed or the suit dismissed.  In either event Scott and his family remained slaves.  But if the judgment of the court below had been affirmed, Chief Justice Taney's opinion would not have been written, and neither the question of the constitutionality of the Missouri Compromise nor the citizenship of free Negroes under the Constitution could have been touched upon.  The change of the form of the judgment enabled the majority of the court to pass upon both of these questions.   That the change of the form of judgment rightfully enabled the court to consider the question of citizenship of free Negroes must be conceded.  But that even the change in the form of the judgment has rightfully enabled Chief Justice Taney and his associates to consider the constitutionality of the Missouri Compromise has been strenuously denied by justices McLean and Curtis in their dissenting opinions; and the question must be decided adversely to the Chief Justice and his associates of the majority, notwithstanding their laborious efforts to prove the contrary and despite their repeated protestations that they were passing upon the question only because they were compelled to do so by the requirements of the case.  At the time, this was made as much a ground of attack upon the court, or even more so, at least among lawyers, as the actual decision of the constitutional questions involved.  And from the present-day point of view, this is one of the two great questions involved in that justly celebrated case - the other being the historically revolutionary fact that a general law of Congress was, for the first time in the history of the country, actually declared unconstitutional in such a manner as to make an actual difference in the country.

Associate Justice Curtis was so positive in his opinion that the court had no right to examine the question on the merits after it had decided that the Federal courts had no jurisdiction in the matter, that he declared the opinion of the court, in so far as it touched on the constitutionality of the Missouri Compromise, an unwarranted assumption of authority, saying:

" I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person of African descent cannot be a citizen of the United States;  and I regret I must go further and dissent both from what I deem their assumption of authority to examine the constitutionality of the Act of Congress commonly called the Missouri Compromise Act, and the grounds and conclusions announced in their opinion."

And Justice McLean went even further.  He not only declared that he did not consider the part of the opinion which declared the Missouri Compromise unconstitutional good law, but he announced that he did not intend to be bound by it - an instance of rebellion on the part of a dissenting member of the United States Supreme Court not duplicated in the entire history of that court.

"In this case - says Justice McLean - a majority of the court have said that a slave may be  by his master into a Territory of the United States, the same as a horse or any other kind of property.  It is true, this was said by the court, as also many other things which are of no authority.  Nothing that has been said by them,which has not a direct bearing on the jurisdiction of the court, against which they decided, can be considered as authority.  I shall certainly not regard it as such." 

I have, in thinking about this, been unable to get the two acts of the Court out of my mind, three acts, really.   The first is the original assumption of powers not granted in the Constitution to assert things not said in the Constitution, effectively amending the Constitution by Supreme Court fiat.  Those include 

-  creating their power to overturn legitimately passed and adopted federal laws

- the entirely dishonest assertions turning  Black People  into non-people under the law in perpetuity.  

The second thing is that not that long after those outrageous acts, a later court used such powers and created "corporate persons" which, due to their potential to concentrate wealth and the possibility of immortality, etc. had vastly more power than the People who the founding document of the country said possessed rights given by God and not by Supreme Courts.  

I don't doubt that that act of judicial, self-asserted god-hood is intimately related to the expanded powers that the Court, itself, god-hood that the Court has never seen fit to end since it has never formally overturned the Dred Scott decision, as they are now overturning Roe vs. Wade and a host of previous Supreme Court decisions in realms from Civil Rights and Voting Rights to environmental protection and others as the new-Taney Roberts Court tries to set us back to the 19th century, if not the antebellum period with legal slavery to the de facto slave days under Jim Crow.    This time granting former slave states and those where Republican-fascism has the upper hand to disenfranchise not only People of Color but any white voters who could substitute for white abolitionists in 22nd century contexts.  Working with Republican-fascist state governments, which are, in fact, the political descendants of the slave-power the Taney court worked with and for.

Until that self-given power is taken from the Supreme Court they will use it to prevent equality because if there is one thing clear about the history of the Supreme Court, it is seldom about equal justice under law and it never will be as long as they can hold themselves unanswerable and above any real moral or ethical code.  The "justices" are selected from an already select group, atypical of the population at large, often through growing up in affluence, going to elite schools where their associates are, largely, affluent.  They are members of a lucrative and privileged profession that has the ability to further seek privileges, many of them by serving, primarily, the rich and well connected and, if they go into an academic side-line, theorizing law on their behalf.   The recent Biden appointment is the first nominee to the Supreme Court in its history who has worked as a public defender.   That is an outrageous fact, in itself.  The Supreme Court is not only the most undemocratic institution in government, it is also the most elite.   Poor People will seldom if ever fare well under such a thing.  The Warren Court was, only occasionally, atypical in that and it was when they were that drew the most fury from conservatives.  And, as I've pointed out, the Warren Court's best decisions were not necessarily that wise in their effects.

As well as stripping the court of the most outrageous powers they have given themselves, ending life-membership on the Court is also essential.  No one should be on it for more than a decade and those who choose to go on it should have a lifetime ban on any activity or association with any entity that had business before the court when they were members of it.   As can be seen through the behavior of Thomas, Alito, Gorsuch, Barrett, etc. they don't even hide their schmoozing and accepting fees from such as they rule in favor of now.  The Court is probably the most flagrantly corrupt part of the federal government as a given, the other branches, against their attempts to reform, further corrupted through the Court's "free speech-money-speech" line of rulings from Buckley v. Valeo down to the most dangerous and evil rulings about that in the Roberts Court.  

I'm Not Making This Up You Know - See How Much Of It Sounds Familar

I AM CERTAINLY not the only person to notice that the Taney court had, on its own usurped power, amended the Constitution, asserting a number of things, including that it rightly had the power to do that.   While checking on some of Louis Boudin's later citations and quotations, I found this from a book-length response to the Dred Scott decision by one of the most eminent of the statesman-lawyers of the 19th century,  Thomas H. Benton in which he said that was exactly what they did.  I include more of the passage than Louis Boudin did because what Benton said would result from the Supreme Court doing what it had,

- inserting it directly into political matters that, formerly, had been considered outside of the legitimate function of the Court - in that I would assert it is among the things that enabled or encouraged the Rehnquist Court to install George W. Bush, one of the worst presidents in our history in one of the most outrageous abuses of illegitimate authority in American history,

- making the Court and its actions a direct topic of partisan and electoral politics, including not only the constituents of the court but in those who selected and confirmed them - leading to, among other things, the Louis Powell, now Mitch McConnell Court Capture scheme financed by wealthy oligarchs,  

- leading those outraged by the outrageous actions of all future judges, which would be rightly assumed to have been made for extra-judicial reasons to contemplate things like adding positions of judges and "justices" and circuits to dilute the sitting members of the courts and the Supreme Court to overturn their political rulings.  

Read what he wrote in 1857 and see how much of it sounds familiar.  The exact place that supports my contention, I've put in red.

In assuming to decide these questions, - (Constitutionality of the Missouri Compromise and the self-extension of the Constitution to Territories,) - it is believed the Court committed two great errors: first in the assumption to try such questions; secondly, in deciding them as they did.  And it is certain that the decisions are contrary to the uniform action of all the departments of government - one of them for thirty-six years;  the other for seventy years;  and in their effects upon each are equivalent to an alteration of the Constitution, by inserting new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now.

The Missouri Compromise act was a "political enactment," made by the political power, for reasons founded in national policy, enlarged and liberal, of which it was the proper judge and which was not reversed afterwards by judicial interpretation of words and phrases.

Doubtless the Court was actuated by the most laudable of motives in undertaking, while settling an individual controversy, to pass from the private rights of an individual to the public rights of the whole body of the people;  and, in endeavoring to settle, by a judicial decision, a political question which engrosses and distracts the country; but the undertaking was beyond its competency, both legally and potentially.  It had no right to decide - no means to enforce the decision - no machinery to carry it into effect - no penalties of fines or jails to enforce it and the event has corresponded with these inabilities.  Far from settling the question, the opinion itself has become a new question, more virulent than the former!  has become the very watchword of the parties! has gone into party creeds and platforms - bringing the Court itself into the political field - and condemning all future appointments of federal judges, (and the elections of those who make the appointments, and of those who can multiply judges by creating new districts and circuits,)  to the test of these decisions.  This being the case, and the evil now actually upon us,  there is no resource but to face it - to face this new question - examining its foundations - show its errors;  and to rely upon reason and intelligence to work out a save deliverance of the country.

He noted that the Supreme Court doesn't have the competence to perform a legislative function, there are too few members, their "fact finding" (which is often a joke and quite often contra-factual in its assertion) inadequate as compared to Congress and, the "justices" being laws unto themselves and appointed for life (Benton's citation of the impeachment provision to remove the worst of them is a pious myth that has never been used for a Supreme Court member) they are free to follow the most lazy, inadequate, malfeasant and thoroughly dishonest course with no realistic inhibition to stop them.   Over and over again "justices" have pretended to cite things like "Congressional intent" while their conclusions are clearly at odds with the legislative record and, sometimes, even the stated opposition to their position by members of Congress who wrote and got bills made into law.  

Yet "justices" from the thoroughly dishonest and even corrupt, Alito, Gorsuch, Barrett, to the piously deluded, Breyer, pretend the Supreme Court is above partisan and even political actions when their own record, their own decisions demonstrate beyond any shadow of any doubt that that is a lie.   

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In going through this one of the things I continually find myself doing is being unable to imagine how an alternative to the present, non-Constitutional power grabbed power exercise by the Supreme Court would work.   That is certainly due to having lived under and come to expect the way the Court acts under the unrepealed Dred Scott decision my entire life.  Yet other countries don't or hadn't allowed their Supreme Courts to usurp such powers for themselves and some of them have healthier democracies than ours has become, largely due to actions of the present and past Supreme Courts.   I directly attribute the reign of lies that brought us to Trump and the disasters he sowed, the disaster of George W. Bush, oligarachy run amok, etc. to the actions of the U.S. Supreme Court not only as it is laid out, written in the Constitution but as expanded extra-constitutionally by those unanswerable "justices."  

As I said earlier in this series going through Louis Boudin, any large and consequential change in this is bound to be opposed by lawyers and law professors because it would render much of their expertise moot or, at least, in need of serious post-doc study.   But there is no reason for the country as a whole to tolerate the status quo AS ITS EVILS MULTIPLY AT AN EVER MORE RAPID RATE AS GOVERNMENT BY JUDICIARY CONTINUES.   The Court itself has done much to make the evils embedded into the Constitution by the anti-democratic force among the "founders" and the First Congress who hastily wrote and adopted the Bill of Rights worse.  A run amok Court that literally makes of the Constitution what it wants to is capable of doing with it exactly what Thomas H. Benton noted the Taney Court did in the Dred Scott decision. 

The bare contemplation of such a possibility makes us pause in our boastful assertion that our written Constitution is clearly the best adapted to all exigencies, the last, best gift to man

BEFORE STARTING  on the next section about the Dred Scott decision, itself,  and following up on the last piece quoting Lincoln's First Inaugural Address on the dangers of the Court assuming the powers it has created for itself, I'm going to jump ahead for this post to the next chapter dealing with the Supreme Court in the last year of Taney's leadership of it, especially in the second of two cases in which Taney and the Supreme Court acted in cases brought so they could hamper Lincoln's conduct of the Civil War. 

Louis Boudin quoted a letter by one of the lawyers who argued the Prizes Cases which attempted to end Lincoln's blockade of Confederate ports.  That lawyer,  Richard Henry Dana, better known today as a novelist,  wrote about the extent to which the pro-slavery side on the Taney Court was ready to test their powers as the Civil War was going on in, "The Prizes Cases" that would have prevented President Lincoln from enforcing his blockade of Southern ports, making it impossible for the Union to win the war.   I have no doubt that Taney, stung by Lincoln's refusal to honor writs of Habeas Corpus in Maryland, Taney's district, would have liked to strike back.

The case was decided in Lincoln's favor by the narrowest of majorities, but if he hadn't been able to already appoint three of the "justices" before then it would likely have gone the other way. One of them having quit the court to go home to Alabama, defecting to the Confederacy.   As Louis Boudin said in regard to the arguments in the case, "It is, however, very doubtful whether his [Dana's] argument really determined the decision of any one of the judges—such decisions usually being arrived at in other ways than by listening to the arguments of counsel."  Something I've never doubted to be the case in any court in any case.  I think generally the determination of how they "justices" are going to vote precedes the case and, in fact, precedes their appointment to the court in a large number of instances.  Oral arguments on the slavery cases is as pro forma as the ones on the abortion cases and the Voting Rights cases before the Roberts Court are.

In a letter to Charles Francis Adams, dated March 9th, 1863,  Dana said:

"These causes present our Constitution in a new and peculiar light. In all States but ours, now existing or that have ever existed, the function of the Judiciary is to interpret the acts of the Government. In ours, it is to decide their legality. The Government is carrying on a war. It is exerting all the powers of war. Yet the claimants of the captured vessels not only seek to save their vessels by denying that they are liable to capture but deny the right of the Government to exercise war powers,—deny that this can be, in point of law, a war. So the Judiciary is actually, after a war of twenty-three months' duration, to decide whether the Government has the legal capacity to exert these war powers. This is the result of a written constitution as a supreme law, under which there is no sovereign power, but only co-ordinate departments.

"Contemplate, my dear sir, the possibility of the Supreme Court deciding that this blockade is illegal! What a position it would put us in before the world whose commerce we have been illegally prohibiting, whom we have unlawfully subjected to a cotton famine and domestic dangers and distress for two years! It would end the war, and where it would leave us with neutral powers, it is fearful to contemplate! Yet, such an event is legally possible - I do not think it probable, hardly possible, in fact. But last year, I think there was danger of such a result, when the blockade was new and before the three new judges were appointed. The bare contemplation of such a possibility makes us pause in our boastful assertion that our written Constitution is clearly the best adapted to all exigencies, the last, best gift to man.” (Adams, Life of R. H. Dana, II, p. 266)

And Mr. Dana was optimistic at that. For with the three new judges, and the age of the blockade, the Government escaped defeat by the narrowest possible margin. The opinion of the Court in this case was delivered by Mr. Justice Grier, who said some rather sharp things of the argument on behalf of the claimants, besides presenting a legal argument on the questions of international law involved. Among other things he said: "This argument rests on the assumption of two propositions, each of which is without foundation in the established law of nations. It assumes that where a civil war exists the party belligerent claiming to be sovereign, cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may.  Being sovereign, he can exercise only sovereign rights over. 

With the power that the Court claimed for itself six years earlier, it left the very issue of the survival of the United States up to the whim of one "justice."   Though if it were a matter of the whimsy and unstated prejudices, interests and bigotry of a unanimous court it would have still left the United States divided once and, certainly, what some states could do once others would do on that precedence, so the very pretense of why the Constitution was written as it was and the Supreme Court created by it was made could be disposed of by unelected Supreme Court "justices" who had declared they had such powers by fiat, removable only through their death or decision to pursue other interests.  If Grier, who had voted for the damnable Dred Scott decision,  had been from Virginia instead of Pennsylvania he would probably have let his tender feelings he, nevertheless, expressed for the claimants win the day and he would have gone home to be a hero of the Confederacy which would have won the war aided by foreign textile and other interests.  

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court

I'D INTENDED to take a long excursion into what the great Abraham Lincoln said about the Dred Scott decision and the power that the Supreme Court gave itself in that worst decision that court has made, so far.   Instead of a long one that might discourage people reading the longer post below, I'll do a short one.  In his first Inaugural Address,  delivered right after Roger. B. Taney as Chief "justice" had given him the oath, as he sat listening.  Lincoln said this about it:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Aside from being one of the smartest of our presidents, an experienced and able lawyer, and probably the best writer of the entire bunch, it's necessary to read what he said very carefully.   His apparent bowing to the power of the Supreme Court is mitigated by his pointing out that no court is all wise, they will always make mistakes and warns that none of their decisions should ever be considered as binding except to the parties in that particular case in order to limit the spread of such evils.   He holds out the chance that they might be overruled, that was, certainly in answer to one of our worst president's, James Bucanan's, declaration of the duty to submit to the Court in his only inaugural address, insisting on the universal applicability of the Dred Scott decision that he, himself influenced and which, apparently with his blessing,  the Court used to give itself the very powers that Lincoln warned against in about as strong a way as it could be put in polite language.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

You have to wonder what Lincoln would make of the Rehnquist and Roberts' courts assaults on the majority vote in the election in 2000 and the rights of all citizens to cast a legal vote and to have that vote count.   The "eminent tribunal" working hand-in-glove with the Federalist-fascists, the Republican-fascists, Mitch McConnell and others to disenfranchise Black Voters, Latinos, Native Americans,  groups likely to vote more heavily for today's Democrats, favoring the corruption of our political process by billionaires and millionaires foreign as well as domestic, etc. if he may have not been even stronger in his warning.  

It wouldn't be that long after that, in the next several years that Lincoln had to disobey Taney as he tried to interfere with his fighting the Civil War that they had done so much to ensure would happen.   When Taney issued the order negating Lincoln's suspension of Habeas Corpus to prevent slavery men in Maryland, Taney's circuit, from by sedition, sabotage and treason aiding the Confederate traitors.  Lincoln refused to go along.   You have to wonder if he hadn't been assassinated by a slavery man if he may have, after the war, done something to limit or strip the Court of the powers he warned the Court was assuming for itself, the "government by judiciary" that Louis Boudin exposed in his book.

Back To Boudine: The Supreme Court Granted Itself Legisltative Powers In The Dred Scott Decision, The "peace and harmony" They In Their Wisdom Established Was The Civil War

GOING BACK TO the chapter on the Dred Scott decision.  Starting with the last paragraph I posted last week.

Under the theory upon the lower Federal court disposed of the case, the question of the Missouri Compromise was not in any way involved in the decision.  Scott appealed to the United States Supreme Court.  The Questions presented to the Supreme Court by the arguments of counsel were as follows:

 First: Was the question of the correctness of the decision of the lower court on the plea in abatement before the Supreme Court - or was that court precluded from the considering that question by reason of the fact that the case had actually been tried and decided on the merits?

Second:  If the question raised by the plea in abatement was open for consideration in the Supreme Court - was the ruling of the lower court on that question correct?

Third:  If the disposition of that question was correct, and the merits of the case were therefore to be considered - was the decision upon the merits made by the lower court correct?

The last question in turn resolved itself into the following questions:

1. Was the lower court right in considering itself bound by the law as laid down by the Supreme Court of Missouri in Scott v. Emerson?

2. If the court below was wrong in that regard, and the question may be inquired into in the Federal Courts independently of that decision - what is the law of the subject?  That is to say;  Did Scott lose his freedom upon his return into Missouri, assuming that he had become a free man while residing in free territory?

3. If it be held that by returning to Missouri Scott did not lose the freedom which he may have acquired while out of the State - did he become a free man while residing either in the State of Illinois or in the Territory of Wisconsin?

The logical order of the problems involved required that the above enumerated points be considered by the court in the sequence in which we have stated them - for the necessity to consider subsequent points depend on the answer given to the prior points, and the decision against Scott on any one of the points except the first would decide the case without the necessity of considering any of the remaining points.

It is now known that the case was actually decided twice, and that before the decision which we now know as the Dred Scott decision had been made, the Supreme Court had decided by a majority vote to affirm the decision of the court below, approving the grounds upon which that decision was made, and that Judge Nelson was commissioned to write the opinion of the court.  That opinion was actually written and appears in the printed record of the case.  It is a curious document in more ways than one.  It is not labeled either as a concurring or a dissenting opinion,  although it is usually spoken of as if it were a concurring opinion, the usual statement being that the Dred Scott Case was decided by a majority of seven to two.  As a matter of fact, it is - at least technically speaking - a dissenting opinion, because it advises a different disposition of the case from that actually made by the court.  But the most striking thing about it is that, although a dissenting opinion, it reads as if it were actually the opinion of the court, disposing of the case in the name of the court.  It is clear that it was written in pursuance of the commission given to Judge Nelson to write the opinion of the court affirming the judgement of the court below.  And it is evident that for some reason or other Judge Nelson refused to change the formal parts of his opinion as originally written so as to adjust his opinion to the new disposition of the case.

The importance of this lies in the fact that Judge Nelson's opinion avoided the ambitious project of "settling the peace and harmony of the country by judicial decision."  If, therefore, the Supreme Court had stood by its original decision and the case had been disposed of on Judge Nelson's opinion,  there would have been no Dred Scott Case in the historic sense of the term.  But fate willed otherwise.  Chief Justice Taney and a majority of his Associates decided that the moment was opportune of the Supreme Court's taking a hand in the disturbed condition of the country, unsettled as it had become by the repeal of the Missouri Compromise, and they attempted to establish by judicial decision that "peace and harmony" which Congress could not establish by legislation.

That this change of mind on the part of the majority of the court was actuated by purely political considerations, and had nothing to do with the requirements of the case is shown by the opinions of the judges as actually delivered,  and it is now fully proven as a matter of historic fact; although it was for a long time denied by the court as well as by its defenders.  It is a minor point in this chain of proof, but significant on the purpose of the decision, that it was communicated to President-elect Buchanan in advance of its official announcement, contrary to the proprieties, as to enable Mr. Buchanan to foreshadow the happy solution of the problem and the restoration of "peace and harmony" to the country in his inaugural address delivered on March 4th, 1857, a memorable day in the judicial annals of this country.  The opinion of the court was delivered by Chief Justice Taney, and each of the other judges wrote a separate opinion.  These opinions vary in length from a few lines written by Justice Grier to the seventy pages of the official report covered by Justice Curtis' opinion.

I am going to disagree with Louis Boudin on one thing, I don't think the actions of the seven "justices" in the Supreme Court majority of this case had "purely political" considerations as their motive, some of them had financial motives, either personally benefiting from slavery or having family and associates who did.   That was the reason for those two long side-trips into the pre-Dred Scott slavery cases I made over the weekend.  John Marshall certainly had a vast financial interest in slavery as did members of the Taney court.   I believe "justice" Grier may have had a "purer" political motive because some say he voted the way he did through the political pressure of James Buchanan who apparently was working hand-in-glove with the majority side on the Taney Court.   They wanted to have a Northern "justice" voting with the Southerners so they could claim it was a "national" decision.  

I have little doubt that that kind of behind the scenes political involvement of the Court goes on quite often,  and it is clear there is one on the basis of an understanding if not actual behind the scenes communications.  Given what is now known about that in this instance and the cultivated cult of mystery and opaqueness of the least open, entirely undemocratic and completely corrupt through its own lack of oversight locus of power branch of government is, anyone who suspects such political motivation and involvement is justified at least in their suspicions.  

As the actions of Clarence Thomas (and his wife), Samuel Alito, Neal Gorsuch, Amy Coney Barrett, previously Antonin Scalia and their social and recreational activities with oligarchs and the like of Mitch McConnell* prove, their financial motivations are in plain sight and so provide evidence that their financial corruption is a given.   In the case of several of them, Clarence Thomas especially, the lack of any kind of binding code of ethics including mandatory recusal in such cases,  it is clear that the Supreme Court tops the Senate and House in complete amorality of that kind. 

Clearly the Supreme Court, comprising nine members, not elected by selected by one man, is a lousy replacement for a legislature.   When it has stepped in to take it upon itself to impose laws or dispose of them because the Congress doesn't seem to be able to fix pressing national problems - in more cases than not due to the anti-democratically elected Senate and its power for a minority of citizens to thwart the wisdom of a majority of better will - it has had the most mixed of results.  I have said that what is one of the high points of the Courts aspiring to do the right thing, the renowned Brown vs. Board of Education banning racial discrimination in public schools, those results have been mixed at best and, due to economic segregation and the ability of rich, white parents to put their children into allegedly private schools (which later Supreme Courts have made sure can suck money out of public education) and school integration has actually gone backwards, though perhaps not to the depths of pre-Brown segregation. 

In the case of Roe v. Wade, the Court has or is about to nullify that decision by the Berger Court, even if it has to enable state legislatures to clearly violate what just about all of the "justices" voting to do that claimed to consider "settled law" when they testilied in their Senate Judiciary confirmation hearings.    Clearly when the Court is allowed such power they will eventually not need to maintain a semblance of logical or even legal coherence and will adopt principles and stands and standards that have no internal integrity when what they want to do necessitates that.  That got its major support in the Dred Scott decision, as Louis Boudin demonstrates.   But it was ever thus, as Paul Finkelman noted in the "great" John Marshall speaking out of both sides of his mouth depending on what he wanted to do in a case about whether or not "natural law" is relevant in Constitutional matters, claiming its authority in money cases and denying it should ever have such power in slavery cases.  You can see the same thing all over the New Taney Court, the Roberts Court, which turns into a game of double-speaking word-salad and, since it's the court of final appeal, nothing can overrule it.  Not even the voters. 

*  There is little that can top the hypocrisy and blatant dishonesty of "justice" Barrett appearing at the Mitch McConnell center, speaking right next to Mitch McConnell, the man who broke his own instantly invented rule against election year appointments to the court, so he could put the odious Neal Gorsuch on the court, so she could claim the court was above politics.   What she proved, as have the others, is that the court is not above politics but it is beneath contempt. 

Update:  I should have added that I think the extreme measure of nullifying the Missouri Compromise which had been seen as valid law for nearly forty years and which, in any case had already been repealed in favor of what would turn into "states rights," was because the Dred Scott majority of "justices" felt they needed to make that gesture to cement slavery into the Constitution by declaring Black People to be non-people. They had to do that in order to pretend that the Constitution had never considered Black People to be eligible to be citizens, even though it was clear that in a number of states Black men could and did vote.

It's clear that whatever "peace and harmony" reigned, they wanted it to include the violence and murder of slavery because all of them had a personal or cultural or racist interest in protecting it from both those held in slavery, Black People who were not in slavery and white abolitionists who opposed slavery.   No matter what the majority of People thought about it.  Like the Electoral College and the anti-democratic Senate, they figured they could install slavery into the Constitution and it would be next to impossible to get it out, especially if they could extend what the slave-power were trying to accomplish in the Kansas Territory through violence that extended to white abolitionists as well as Black People.   That was the reality under which the Taney Court worked their Supreme Court magic within. 

 

Posted Directly From The Post At Lit Hub by Jonny Diamond Without Further Comment

 

Writer and translator Artem Chapeye sent the following earlier this week in response to recently resurfaced comments by Noam Chomsky about the Russian invasion of Ukraine. While Chomsky has been a clear and much-needed critic of American imperialism over the last 50 years, his reluctance to recognize similarly imperialistic inclinations in Vladimir Putin’s Russia has been frustrating to many of his admirers. This includes Chapeye, who has in the past translated much of Chomsky’s writing into Ukrainian.

A short letter to some Western intellectuals. Please share to whom it may concern. I can’t write anything long because we’re still on the run, with my kids who are right here next to me. So, in brief: Ukraine was not “dragged into” war, it was attacked. Without even a pretext like Hitler’s attack on Poland. I know other countries have faced their share of foreign intervention, and right now you’re witnessing overt Russian imperialism. I don’t want to make any flawed historical comparisons, but empires have lost wars against smaller peoples before, and in the end, the Russian imperialist government must lose. When you’re being bombed, when you’re thinking of ways to evacuate your kids, you have a different perspective than when you’re sitting cozy in an office somewhere in Arizona. Yes, Noam Chomsky, I’m looking at you, among others.

I started as a volunteer translator of “The Responsibility of Intellectuals” into Ukrainian—now I’m aghast at how you mention, in one sentence, the lead-up to this invasion: “What happened in 2014, whatever one thinks of it, amounted to a coup with US support that… led Russia to annex Crimea, mainly to protect its sole warm-water port and naval base,” Chomsky said. What if the US occupied Baja, California? Before “overthrowing capitalism,” try thinking of ways for us Ukrainians not to be slaughtered, because “any war is bad.” I beg you to listen to the local voices here on the ground, not some sages sitting at the center of global power. Please start your analysis with the suffering of millions of people, rather than geopolitical chess moves. Start with the columns of refugees, people with their kids, their elders and their pets. Start with those kids in cancer hospital in Kyiv who are now in bomb shelters missing their chemotherapy.

________________________

Artem Chapeye was born and raised in the small Western Ukrainian city of Kolomyia and has spent much of the last twenty years living in Kyiv. He has authored two novels and four books of creative nonfiction, and is a co-author of a book of war reportage. A four-time finalist of the BBC Book of the Year Award, his recent collection The Ukraine was one of three finalists in the award’s new nonfiction category in 2018. His work has been translated into seven languages, and has appeared in English in the Best European Fiction anthology and in publications such as Refugees Worldwide in translation by Marian Schwartz.

So, here's what's interesting - A Footnote About The Supreme Court Giving More Care To Property Cases Than To Even Questions of Enslavement And Freedom

IN PROTECTING DEMOCRACY against the attacks on equality and even voting  by Republican-fascists on the state and federal level, most of all the Supreme Court, first the Rehnquist Court and now the neo-Taney Roberts Court, I think it's essential to point out the lies and shabbiness of the tradition of holding that corrupt Supreme Court up as a sacred institution. 

I made an accusation yesterday that the Court has repeatedly, from early in its history practiced the most excruciating care to the protection of money and wealth (of its own members and its own class) while having an entirely different and far lower standard of care when it was the rights of poor people and those not favored by those with money and, so, power.   In his excellent talk given at Montecello which I linked to a few days ago, the fine American historian Paul Finkelman points out that about the most celebrated and adulated member of that court in our history, John Marshall.  Starting about here in the video, remembering that it's only my transcription and so any deficiencies and errors are mine and not his:

In every one of these cases he [John Marshall] finds a way to hold somebody in slavery.  He hears a number of cases involving the African slave trade and in every one of - and by the way the African slave trade is illegal after 1808 And American participation in the trade is illegal after 1794.  So he finds people who have been illegally involved in the African slave trade and he always finds a way to let them off.

In one case there is a boat that leaves either the port of New York  or Perth Amboy which is in New Jersey, goes out into the Atlantic Ocean, picks up a bunch of illegally imported slaves in the middle of the Ocean and brings them to Louisiana and tries to sell them in New Orleans. Marshall rules that the conviction is to be overturned because the prosecuting attorney said that he left either New York or Perth Amboy and the prosecuting attorney doesn't know where he left and therefore we have to throw the case out. Never mind that the boat arrives in New Orleans with obviously freshly imported African slaves in clear violation of the law. Any judge, particularly a judge as smart as John Marshall could have figured out how to uphold this conviction.  He doesn't.

[The] final slave case I want to mention is the case called The Antelope becaues The Antelope is the big John Marshall African slave trade case.  And in The Antelope John Marshall says things that make his biographers happy because he says that slavery is a bad.  He even says that slavery violates natural law. But then he goes on to say that natural law has no place in American Constitutional law and you cannot apply natural law to American Constitutional law. This is, in fact, a direct slap in the face of his closest colleague on the court, Joseph Story who had said it in the case I mentioned way back in the beginning of this talk [he's talking about a circuit court decision that Story handed down, not a Supreme Court case] where Story said slavery violates natural law.
 
So, here's what's interesting.  When I taught Con-Law in law schools for 20 years, I would teach Fletcher vs. Peck and Dartmouth College vs. Woodward, and Ogden vs. Sanders, and in all of these Marshall makes natural law arguments.  In Ogden vs. Sanders [Marshall] writes one of his six dissents, he is dissenting from a law, a case upholding New York's bankruptcy law.  He hates bankruptcy laws because people who owe you money don't have to pay you if they are allowed to be bankrupt. And Marshall has a significant amount of money that is being lent out and so he doesn't like debtors, he likes people who hold debt.  Like himself.  And so he dissents in this case and he says that a bankruptcy law is a violation of natural law and, therefore, it should be struck down.

So, when it comes to slavery, natural law doesn't apply but when it comes to money it does.

Remember that as the Roberts Court disposes of the most basic rights of Black People, People of Color, Women, etc. the right of us all to a livable, sustainable environment, especially as those come up against profits of billionaires, millionaires and giant corporations.   Remember it as they summarily deny hearings to People on death row or as they dispose of their lives citing things like paperwork that didn't get in under the deadline or the right not to be put to death, the last minutes of someones' life taken by the state being in mute, paralyzed agony.   Ask how depraved someone has to be as a Clarence Thomas or a Amy Coney Barrett as they do it to People like them who aren't "people like us".  

Also remember that having given itself the power to overturn duly enacted legislation of the democratically elected House, the imperfectly elected Senate and the President, the unelected and unanswerable Supreme Court has done other things in its self-expanded powers.  One you can contrast with its typical refusal to do justice to mere poor people, to Black People, to members of beleaguered minority groups, to Women is its creation of "corporate personhood"  "persons" for whom the courts have often had a far higher standard of care and concern for their "rights" than they have for actual People. And in another history of Supreme Court outrages that could be written on at length, that status was the invention of sleazy Gilded Age corporate lawyers and Supreme Court clerks, some say based on a brazen forgery by one of the sleazy lawyers that the learned "justices" clearly liked enough to not bother checking to see if it was authentic. 

 Conk­ling argued to the Supreme Court in San Mateo County v. South­ern Pacific Rail Road that the 14th Amend­ment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congres­sional Commit­tee that draf­ted the amend­ment vacil­lated between using “citizen” and “person” and the drafters chose person specific­ally to cover corpor­a­tions. Accord­ing to histor­ian Howard Jay Graham, “[t]his part of Conk­ling’s argu­ment was a delib­er­ate, brazen forgery.”

As the article linked to shows, some of the less dishonest, perhaps even wiser members of the Court have objected to its use by the Supreme Court "justices" to distort the 14th Amendment, one designed to make People able to equally enjoy their rights into a weapon against mere human beings, those without money and, so, power. 

Some Supreme Court Justices objec­ted to the Santa Clara approach. Dissent­ing in Wheel­ing Steel Corp. in 1949 Justice William O. Douglas and Justice Hugo Black noted that the corpor­ate person­hood issue was not such an open and shut case: “[In Santa Clara] [t]here was no history, logic, or reason given to support that view. … [T]he purpose of the [14th] Amend­ment was to protect human rights-primar­ily the rights of a race which had just won its free­dom.” Justices Douglas and Black thought the ques­tion of corpor­ate person­hood should be decided by the people, not the Supreme Court. But they could not convince their fellow Justices.

And once that evil was released, mixed with ACLU style "free speech-free press" blather (their amicus briefs all, I believe, sided with the "corporate persons") the results opened up electoral democracy to, not only domestic billionaire and millionaire corruption, but to the likes of Putin and other foreign dictator-gangsters through dark money.  The results are the most criminal and corrupt presidency in our history enabled by the worst enabling of the thoroughly corrupt Republican-fascist Congress.  Lest anyone forget the Mitch McConnell Senate* which blocked the elected president Obama from replacing a Supreme Court member and the solidifying of Republican-fascism on the Court.  

It was such an obvious danger that one of their own, the partisan, voter intimidating William Rehnquist could see it was dead dangerous. 

 In the 1970s, Santa Clara was used to justify grant­ing corpor­a­tions the First Amend­ment right to spend unlim­ited corpor­ate funds on ballot initi­at­ives in a case called Bellotti. The Court relied on Santa Clara’s read­ing when it stated that “[i]t has been settled for almost a century that corpor­a­tions are persons within the mean­ing of the Four­teenth Amend­ment.” Justice Rehnquist, in his dissent, ques­tioned the wisdom of extend­ing corpor­a­tions polit­ical rights: “those prop­er­ties, so bene­fi­cial in the economic sphere, pose special dangers in the polit­ical sphere.” Again Rehnquist could not convince his brethren.

In Citizens United, when the Supreme Court held that polit­ical speech is “indis­pens­able to decision making in a demo­cracy, and this is no less true because the speech comes from a corpor­a­tion, ” they cited Bellotti. Thus it’s only a hop, skip and a jump from Santa Clara to Citizens United.

* Continuing the program of corruption that got Trump impeached the first time,  Mitch McConnell and his Republican-fascist colleagues are threatening to use their power in the Senate to hold up vitally needed aid for Ukraine even as McConnell's patron, Putin is attacking it.  Lest anyone forget,  a Kremlin connected oligarch funneled money into Kentucky to prop up McConnell.  I doubt he's bothered if anyone wonders if this might be the quo for that quid.  The Supreme Court has opened us up to not a new Gilded Age but a Platinum age of corruption.  And they did it with "rights" talk through lying about one of the best intentioned of all of the Amendments to the Constitution.

how a mistaken doubtful, and hesitating exercise of power in the commencement, becomes, by use, a conviction of its correctness

THINK OF THIS AS A SIDE TRIP to the posts on the Dred Scott decision and Louis Boudin's overwhelming evidence that it and not the earlier and innocuous case of Marbury v. Madison was the origin of government by judiciary as wielded by Republican-fascists on the Roberts Court. 

Considering Louis Boudin didn't come to the United States, fleeing Czarist oppression in Russia, until he was seventeen, that he must have learned English as a second language fairly late to expect fluency, his achievement in becoming so learned in not only English composition but in an enormous range of the law and the history of the United States and other countries relevant to his topic is extremely impressive.  I've lived in English my whole life and I couldn't do it.  

His writing about members of the Supreme Court and their proclamations, from the most renowned to those forgotten except to specialists,  is deep and penetrating.   I found his understanding of the personalities of a number of them extremely enlightening, one of the most interest of those the associate justice of both John Marshall and Roger Taney,  Joseph Story is especially revealing.  

Story was a New Englander who personally claimed to hold slavery to be a moral abomination but who became, I think under the influence of Marshall and his slave-holding colleagues, more concerned about legalistic scrupulosity  than in the injustice he could have wielded his own office to fight against.  But such is the law, so often and, especially at the Supreme Court level which more often than not, produces injustice.  Though I think his pride in his knowledge of the ancient lore of English Common Law was Satan's point of entry leading to his self-earned damnation.

In Volume One, in the section leading up to and preparing his argument on the Dred Scott decision creating the judicial-power on behalf of the slave-power, Boudin goes into a explanation of how Joseph Story earned the scorn of those held in slavery and those who opposed it when he cited ancient property law in favor of protecting Black People from abduction into slavery.  That starts in an earlier case, a long discussion of the, I'd imagine, largely forgotten Charles River Bridge case, described here, thus:

Facts of the case

In 1785, the Massachusetts legislature incorporated the Charles River Bridge Company to construct a bridge and collect tolls. In 1828, the legislature established the Warren Bridge Company to build a free bridge nearby. Unsurprisingly, the new bridge deprived the old one of traffic and tolls. The Charles River Bridge Company filed suit, claiming the legislature had defaulted on its initial contract.
Question

Did the legislature enter into an economic contract with the Charles River Bridge Company that was impaired by the second charter in violation of Article I Section 10 of the Constitution?

I think in every case when Louis Boudin made such a side trip he did so to point out to something extremely important about the danger of the modern judicial-power as it is practiced to keep an unjust and even dangerous status-quo for the benefit of the rich and, so, powerful and, in this case, to point out that with the United States' Constitution, a written document which is extremely hard to amend, such a power is far more dangerous than the English Common Law that was Story's specialty and,there's  no doubt, his erudition it it something he was extremely proud of.

In reading Mr. Justice Story's Learned Discourse on the English Common Law with reference to ancient ferries and similar matters, one is overcome by a sense of tragedy.  We do not mean only Mr. Justice Story's personal tragedy in fighting for a lost cause - the cause of the "Old Court" so ably presided over by Chief Justice Marshall, whose banner Mr. Justice Story now tried to hold aloft and save from destruction by the onrushing tide of Jacksonian Democracy.  What we have in mind is the far greater tragedy of seeing perhaps the most learned lawyer who ever sat on the United States Supreme Court stubbornly looking backward in search of the ideas which were to guide him in the interpretation of the United States Constitution - a Constitution that was meant, as Marshall himself repeatedly and so ably said, for the government of many future generations yet to come.

The naivete with which Mr. Justice Story appeals to the authority of the remnants of the feudal law still lingering in the English Common Law as the proper constitutional rule for the government of the United States is indeed tragic.  Again and again he pathetically reverts to the fact that he is placing himself squarely on the rule of law three centuries old - little realizing that the older the rule of law the less serviceable it is likely to be in our times.  For it must be remembered that the rules of law contended for by Mr. Justice Story, are not rules of guaranty or security based on Magna Charta or some similar constitutional document, fancied or authentic, extorted by the English people from unwilling rulers in the course of their struggle for freedom, but the privileges of these rules that had survived this struggle and remained part of the common law as Judge Story understood it.  

"I stand upon the old law;  upon law established more than three centuries ago. . . . I will not consent to shake their title-deeds by any speculative niceties or novelties. . . . "  

Such is the constantly-recurring refrain of his song. . .

. . . If Mr. Justice Story's attitude had prevailed, the result would have been the remnants of feudalism which were being gradually eradicated from the English Common Law in the course of the last few centuries, would have been reincarnated in the American law under the protection of the United States Constitution.  Progress would have been blocked not only by way of legislation, but also by way of judicial adjudication - a line of progress which had been going on in England practically on parallel lines with that of the legislation.  

In thus appealing to rules of law which had prevailed centuries ago, Mr. Justice Story not only overlooked the difference of situation between the United States [and its written Constitution which its rules made extremely difficult to amend even to obtain relief from the most obvious injustice administered under it] and England [without such a written Constitution], but also ignored the progress within England itself, with the aid of a couple of revolutions, had made from feudalism to freedom in the course of the last few centuries.  It is not the Common Law of England as it existed at the time of the American Revolution, of which Blackstone was the chief exponent, to which Judge Story appealed, but to the Common Law as it had been expounded under the absolutism of the Tudors and The Stuarts. 

Joseph Story was on the minority of the Court in that case, in that instance his reactionary scruples and sense of piety didn't rule the day, no doubt the commercial and civic benefits of the new bridge as opposed to the old one made a new kind of justice on a different standard than pious fealty to ancient law a pressing sense for the Court majority.   In his commentary Louis Boudin notes that in so far as it was a matter of winning, whose opinion had the force of law,  the learned Joseph Story was beaten by the mediocre Henry Baldwin mentioned yesterday.  I think the most important part of that commentary is this point by Boudin:

Mr. Justice Story set out on a hunt for precedents favoring the rights of individuals against the public, while Mr. Justice Baldwin was looking for precedents favoring the rights of the public as against individuals.  As is usual in such cases, each found exactly what he wanted.

But, as is the more common practice of the learned "justices" on the Supreme Court in matters of justice for the powerless and poor, especially People of Color and, most of all Black People, the ancient rules were good enough and in a far more important case, Joseph Story's ancient reasoning won the day, though his fellow "justices" probably realized what shifting sand that was to build on in the "New Court" dominated by Jackson's appointees instead of those appointed under the Federalist Party.  I have, by the way, little doubt that Story was given the job of writing the majority opinion exactly because he was supposedly an anti-slavery man, the better to strengthen slavery by.

The major point about Story's reliance on English Common Law from the medieval period comes in such a case in which he voted with the majority and sealed his own infamy for People of Color and the opponents of Slavery in general.

Prigg v. Pennsylvania was the most celebrated slavery case prior to the decision of the Dred Scott Case.  It involved the question of the enforcement of the fugitive slave laws, which touched the heart of the slavery problem more nearly than any other question except that question of the power of Congress to abolish slavery in the territories, which was the subject dealt with in the Dred Scott Case.  And it exhibits more than any other case decided during this period the great passion which the subject of slavery around in those days and the confusion which it wrought in judicial minds.  Edward Prigg, a citizen of the Free State of Maryland, had been indicted in Pennsylvania for kidnapping, it being alleged in the indictment that on the first day of April, 1837, he mad an assault upon Margaret Morgan, a Negro woman and carried her away by force and violence from the State of Pennsylvania to the State of Maryland, with design and intention there to sell and dispose of her as a slave.  The facts of the case were as follows:

Margaret Morgan was claimed to be a fugitive slave, having escaped from the State of Maryland into the State of Pennsylvania.  At the time of the occurrences in question, the question of the apprehension and delivery of fugitive slaves in the State of Pennsylvania was regulated by certain laws, among which were: (1) An ACT PASSED IN March, 1780, entitled "An Act for the Gradual Abolition of Slavery"; (2) an act passed in March, 1788, entitled "An Act to explain and amend 'An Act for the Gradual Abolition of Slavery'"; and (3) an act passed in March, 1826, entitled "An Act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping."  The substance of these laws was that whenever an owner or his agent claimed that a person found within the State of Pennsylvania was an escaped slave, he was to apply to a judge or other magistrate for the issuance of a warrant addressed to the sheriff or constable for the apprehension of the alleged fugitive.  The sheriff or constable arresting the alleged fugitive was bound to bring him without delay before a judge, who was to decide whether or not the person apprehended was actually a fugitive slave, and if found to be such, the judge was to turn him over to the claimant together with a certificate showing the person thus turned over into the claimant's custody to be a fugitive slave.  This certificate was to be his warrant for the removal of the alleged fugitive from the State of Pennsylvania.

Margaret Morgan had concededly  been at one time a slave owned by one Margaret Ashmore, a citizen of Maryland.  She fled from her master and came to Pennsylvania in 1832.  In 1837, Edward Prigg, the agent of Margaret Ashmore, came into Pennsylvania, obtained from a Justice of the Peace a warrant for the apprehension of Margaret Morgan as an alleged fugitive slave, had her arrested by a constable, together with her children, one of whom had been born in the State of Pennsylvania while she resided there, and had them all brought before the same Justice of the Peace who had issued the warrant.  It seems, however, that when the alleged fugitive slave was brought before the Justice of the Peace, the latter refused to proceed further in the matter; whereupon Edward Prigg forcibly carried her off, with her children, into the State of Maryland.  The question involved was, whether the provisions of the law of the State of Pennsylvania were binding upon the owner of the slave and his representatives, so that the slave could be reclaimed only in the ordinary course of due court procedure.  Or, whether the slave onwer had the right to disregard the provisions of the Pennsylvania laws providing for the right of recovery of this particular species of property, and could carry off his slaves whenever and wherever found without regard to the state laws on that subject.

The court held that the state laws were not binding upon the slave owner, and that a slave owner could, therefore, carry off his slave whenever and wherever found, and in any mode he saw fit.  The opinion of the Court was written by Mr. Justice Story, and the anti-slavery people never forgave him for his alleged back-sliding.  Before the decision on Dred Scott the decision in the Prigg Case was the cause of great excitement among the opponents of slavery, and Mr. Justice Story's action in the case was the occasion of much adverse comment, in which his moral character did not entirely escape attack.  This latter question is of no particular interest now, and there can hardly be any doubt that the noted jurist acted according to his lights.  But a reading of his opinion reveals two facts which are interesting in our connection, one shedding light upon Mr. Justice Story's character as a jurist, the other upon the character of the epoch in which this particular opinion was written.  And there can be no doubt that the two combined to produce the decision.  There can be no doubt of the fact that Mr. Justice Story, opposed though he personally was  opposed to slavery, though that, under the present conditions of the country, statesmanship required that the question of the fugitive slaves should not be dependent on the laws of the free states.  And there can also be no doubt of the fact that Mr. Justice Story's notion of the sacredness of property, and his medieval and antiquated notions of the rights of owners in the matter of the recovery of property, contributed largely to overcome his aversion to slavery when he came to pass upon the legal question of the rights of an owner to recapture his fugitive slaves.

All of the judges, with the exception of Judge McLean, agreed with Mr. Justice Story in the conclusions at which  he had arrived, but most of them dissented most emphatically from some of the constitutional doctrines announced by him;  and a perusal of their so-called concurring opinions shows how hopeless was the disagreement among them, how utterly irreconcilable their opinions, and how each man in his own way was affected by the problem of slavery.  It would serve no useful purpose to go into a detailed examination of these opinions here, but some of the passages are of more than passing interest.  One of the, in particular, deserves attention here because it seems to epitomize the entire history of the judicial power.  In the course of a rather lengthy opinion, Mr. Justice Wayne said:

"I had intended to give an account of the beginning and progress of the legislation of the States upon this subject;  but my remarks are already so much extended that I must decline doing so.  It would have shown, perhaps, as much as any other instance, how a mistaken doubtful, and hesitating exercise of power in the commencement, becomes, by use, a conviction of its correctness."

That last point by Wayne is so important a one as to the danger of the Taney created power wielded by the Roberts Court to reimpose the 3/5ths rule by "partisan gerrymander" with the clear purpose of preventing Black People, other People of Color and those white People who can stand in for white abolitionists from voting as well as re-nationalizing Women's bodies by state governments.   If you don't get hung up on mere words and abstractions as Story did and as we are all encouraged to and look, instead at the real meaning of things in terms of the real lives of real PEOPLE, not much was really settled by the Civil War and the Civil Rights struggles of the 1950s-70s.   We have a New Taney Court making sure that progress is reversed.   And when they give some Story-like simulacrum of a reason for it, People are expected to just accept that.   We have an absolute moral obligation not to. 

It also shows what a huge whopper of a lie the whole line of "originalism" and, as dishonest "textualism," are.  And, considering the inflexibility in correction that the United States Constitution is built into it, how dangerous those dishonest poses are.