"It seems to me that to organize on the basis of feeding people or righting social injustice and all that is very valuable. But to rally people around the idea of modernism, modernity, or something is simply silly. I mean, I don't know what kind of a cause that is, to be up to date. I think it ultimately leads to fashion and snobbery and I'm against it." Jack Levine: January 3, 1915 – November 8, 2010 LEVEL BILLIONAIRES OUT OF EXISTENCE
LISTENING TO the recording of Dianne Feinstein's performance during the hearings, I was struck at how coherent and cogent her questioning was. Considering the widespread claims that she was clearly ga-ga from her performance in other hearings, I think those who said that at the time should revise and correct their comments. Not that I'm waiting up nights or holding my breath.
Instead, this week, it's another woman, Nancy Pelosi who's being piled onto by the same people.
I'VE BEEN INTENDING to write about this article from the Global Sisters Report all week and now I don't have much time but didn't want it to get lost, so I'll quote liberally with minimal comment.
One of the Orthodox scholars who signed a statement condemning as "heresy" the political vision of Russian Orthodox Patriarch Kirill of Moscow is a U.S.-born Russian Orthodox nun and scholar of Byzantine liturgy.
Sr. Vassa Larin, a nun of the Russian Orthodox Church Outside Russia, also is host of the popular podcast and video series, "Coffee with Sister Vassa."
I'm pretty full up on things I check on regularly but I'm certainly going to add her to the list.
Living and working in Vienna, Larin also serves on the liturgical and canon law commissions of the Russian Orthodox Church, and now she is helping support a Ukrainian Catholic mother and her two children who fled Russian President Vladimir Putin's war on Ukraine.
In an interview with Catholic News Service on March 18, she denounced the war as "evil" and Patriarch Kirill's approach to it as a "horrible, horrible thing."
For decades, the patriarch has been promoting a teaching called "Russkii Mir" (Russian World), which claims a special status for the Russian Orthodox Church and the Russian nation working closely together to govern politically and spiritually not only Russia, but all Russian speakers and the people they believe are closely related to them: Ukrainians and Belarussians.
"It is not a Christian thing," Larin said, even if Patriarch Kirill and Putin try to cloak it in Christian language and present themselves as defenders of traditional Christian values.
"What unites us is not being Russian; that's not the primary thing in the mystery of the church," she said. "The church is a mystery of unity, a sacrament of unity, based on the oneness of the Body of Christ. It's not based on ethnicity."
"That was the big thing about Christianity, you know, that it expanded to all peoples, not just to one, chosen people of one blood-lineage," she said. "Christ was a light for the revelation to the Gentiles and indeed the glory of his people Israel, as in the song of Simeon."
It is one of the things about much of Orthodoxy that I don't care for is the too frequent linkage between Church and State, even nationalism in too many cases when that happens it's the state that impinges on the Church and corrupts it. The political hegemony of the Moscow Patriachate in recent Orthodox affairs regarding the Orthodox Church in Ukraine is an extreme example with its like happening in Catholic and Western Christianity, too. The tie of churches to states is bound to lead to those kinds of things, even wars, even leading to the Church being used as an excuse by secular leaders for wars they want to extend their quite secular, quite immoral power. I doubt Putin's religious professions, such as those are, are more than political propaganda. He's got about as much real religion to him as a murdering, extorting, pimping member of organized crime does no matter how much money he gives to the Church. In fact, he's one of them.
Unfortunately, she said, the Russian Orthodox Church "has slipped into this trap — that we never really escaped throughout our history as a church — of falling in line with a certain state authority; falling in line with its message and becoming subservient to it."
In modern times, the Catholic Church has taken a self-critical look at its past cooperation and collaboration with temporal rulers and at the times it did not denounce the abuse of political power as it should have, she said. The Russian Orthodox Church has not made a similar examination of its past or present.
That is something that pretty much you can say about the Catholic Church only in modern times, starting with when the semi-organized Italian national government united the country and annexed the Papal States to civil control instead of Vatican control, something that has its own interesting history, including Pius IX going off his rocker and the First Vatican Council inventing the doctrine of papal "infallibility" as a concession prize to him. The Second Vatican Council was the decisive step in reasserting the universalism of the Catholic Church and its separation from civil authorities and the state. Something which is not only imperfect in many places but is actively being undermined by the trad-Catholic, neo-integralist Catholics and the billionaires and millionaires who fund them. Some of whom are supporters of Putin as much as Kiril is.
"We don't seem to find that instinct to witness and truth-tell when the going gets really rough," she said.
By accepting the government's "party line" and not questioning it in the light of the Gospel, Larin said, "we're really just dying on the battlefield of spiritual warfare."
As has been noted here before, Jesus couldn't have been more explicit when he said his Kingdom was not of this world. Why anyone who professes to believe in his Gospel and his ultimate authority would do as so many of them have in regard to worldly power is never asked enough. Just as I would reject that anyone could support much if not most of what the United States government has done and have a right to be considered supporters of democracy, those who do as so many "Christians" do in this regard have no real right to be considered to be followers of Jesus. They are impostures, many of them in elaborate dress and other costuming. And I'm thinking mostly of Catholic hierarchs when I say that but the same could describe others.
While she describes herself as "a big Pope Francis fan," Larin said that as an Orthodox Christian, she does have some questions about his plan to consecrate Russia and Ukraine to the "Immaculate Heart of Mary" on March 25.
In the book I'm re-reading, On Being A Christian, Hans Kung notes that the Vatican and the Papacy has always been the main source of excessive Marian devotion, I'm also a huge fan of Pope Francis but I'm not sure this was the best way to do things. So I'm in agreement with her on this even as I think Francis is mostly doing better while trying to not burn bridges that might be useful to him playing a role in the future. I doubt it will work out that way but I'm not the Pope with a responsibility to not cut things off as drastically as I might feel like doing.
I'm sure there are things I would disagree with Sr. Vassa about but she's definitely worth reading and listening to. I hope Russian Orthodoxy moves more in her direction in the future.
AS IN "I do
have a problem with some of the movie, TV show and novel depictions of
gay male characters by directors, actors and writers who are not gay
men." Especially since the next sentence pointed out that many of the movies, etc. produced, directed and written by males of any gender persuasion depicted Women badly. Not all of them, perhaps but SOME of them.
"Some" does not mean "all," it does not mean "most" it doesn't even mean "many." It doesn't even mean badly intended. I found the depiction of gay men in something as intentionally positive as "Consenting Adults" off, in a few of the scenes too stereotypical.
It's amazing to me how deficient in the comprehension of the English language some college-credentialed people are. As we have indefinite articles, some languages don't, by the way, the nuance they lend to expression shouldn't be left out because of some people who were passed when they should have been retained till they learned such things and then were put though a degree-mill program because they were paying customers.
If I'd said "some of the movie, TV show and novel depictions of Black People, Native American People, etc were problematic," no doubt people with deep seated prejudices and indifference to stereotyping of the any of those groups would object to it. Even when it's as obvious as some of the truly evil depictions of those groups in the movies, TV shows, novels, even alleged non-fiction.
I can say that SOME cis-straight-white-males have absolutely no intention to try to imagine the damage that entertainment that presents beleaguered populations badly do so in real life either because they don't think it's something they are responsible to take seriously OR THEY APPROVE OF THAT USE OF PEOPLE OTHER THAN THEMSELVES. A lot of the Hollywood and scribbling class "liberal" and even "leftist" folk are nothing of the sort when you get right down to it. They're as indifferent to equality and justice as their typical non-liberal predecessors were, even when the problem was pointed out to them, repeatedly.
Hollywood changes more slowly than most turgid, habitual and entitled entities, if it changes at all. It's a bastion of powerful, rich, mostly white men. That is likely to slow any progress like the Senate and Supreme Court are and frequently it tries to turn back progress. I don't think it's much moved on from the first century of its existence when it became the primary vehicle for passing on some, perhaps even many and most of the entrenched bigotry of the past into the present. Its bad habits even extend to those who may wish to do better but don't really understand how to do it. Even some who are members of the groups so misrepresented. I would expect that members of such groups would probably have a better success rate at, at least, avoiding the negative and widely offensive use of a group they are members of. Not all, though, I think Clare Boothe's The Women is one of the worst stereotypical depictions of Women I ever saw in a movie, but, then Clare Boothe (later Luce) was vile and a shitty writer, as well. Bad writers will always resort to stereotype, it's inevitable.
I SORT OF KNOW who Sam Eliot is, though the only full length thing I remember seeing him in was that TV production of Fail Safe a while back. He seemed like a good actor in it, I don't know if I've seen much of his other work or not. Great voice, knows how to use it.
I know nothing about a movie named "Power of the Dog," or the book it's supposed to be based on. I had to look it up, I have no opinion about it so I don't know if his criticism of the movie is justified or not. I do have a problem with some of the movie, TV show and novel depictions of gay male characters by directors, actors and writers who are not gay men. But you can say the same thing about the way women are depicted in things produced by men, straight and gay.
As to his seeming belief that there were no gay men in the ol' wayest, I'm surprised he didn't know about that. From what I've heard from gay men who lived in Western states, there's plenty of it around now.
I really don't like cowboy movies and horse operas with the fewest of exceptions and don't much like any movies much these days. Even the old ones I used to like, when I go back and watch them seem trivial when they're not just stupid. I tried to watch Laura a while back - I thought I had a hankering for some Dana Andrews - and the plot and Gene Tirney's acting, especially Clifton Webb's, even Vincent Price's seemed absurd.
I've been re-reading Hans Kung "On Being A Christian." It stands up to repeated reading. I'd rather do that than spend a couple of hours watching a movie, even a new one.
IN A TOO RARE online example of adult-level conversation about, among many other things, the Resurrection of Jesus, I'd recommend this archive from a debate among three scholars conducted by e-mail in 1996:
During the Lenten season of 1996, Harper San Francisco publishing company sponsored an e-mail debate which explored the significance of the historical Jesus for Christian faith. The seven-week debate took place between John Dominic Crossan and Marcus Borg, both members of the Jesus Seminar, and Luke Timothy Johnson, the Seminar's foremost critic. Here are the messages from this contentious and intense debate. Each week except for the last consisted of a main message from one of the participants and replies from the other two.
In 1996 I would certainly have found Crossan's point of view most persuasive, having recently read his book The Historical Jesus, which I credit for my adult conversion. Today I find Luke Timothy Johnson the most persuasive of the three, oddly, the one who seems to me the least bound by an orthodoxy or or ideological agenda.
As an example, here are a couple of passages from Johnson's first response to the other two:
a) My strong reading of the resurrection as the originating "religious event" of the Christian movement, as the inevitable perspective from which all Jesus traditions were perceived and interpreted even in their earliest transmission, and as pointing to the "real Jesus" for christian faith ---that is as a living presence to the world even to this day, is by no means a denial of what Crossan calls Catholic Christianity, but the opposite, its grounding.
b) To affirm the resurrection this way does not imply a denial of incarnation, that is, the reality of Jesus of Nazareth as a historically locatable human person of the first century who lived a genuinely and fully human life, nor does it deny an essential continuity between that human Jesus and the resurrected one. But I would assert that the creedal statement concerning "born of Mary, suffered under Pontius Pilate"--- while certainly a "historical affirmation" is not the same as a "historical Jesus" as currently construed, for that affirmation has a
"mythic" lead in (it is God from God who is so born) and mythic follow up (rose from the dead and will come again).
c) the strong view of the resurrection, indeed, is a way of affirming the value of the body and the world, for it holds out the hope of transformation of the body and the world, rather than seeking salvation in a mystic or epistemic flight.
and:
Crossan speaks of a dialectic between "Jesus then" and "Jesus now." Borg rightly notes that there is something too easy in the way the statement is framed. Very briefly, to respect the limits of our exchanges---and mine has already been too long extended--- I will again agree and disagree by making a distinction.
a) Crossan is certainly in agreement with my position if he means that the experience of the risen Jesus (through the power of the Holy Spirit, through the continuing religious experiences of people in the world) continues the process of God's revelation, and that these experiences must always be in conversation with the Jesus found in the Gospels ---as I argue in my book, the images of Jesus inscribed in the Gospels as literary compositions, images that are both diversely shaded and yet deeply joined on the issue of Jesus' basic character). To dwell only in the present experience IS to be Gnostic (or something). To dwell only in a historical reconstruction reduces Jesus, ultimately, to Socrates or Apollonius. I, for one, will not deny that the divine DAIMON worked through either. But for the tradition that I claim, Jesus' presence continues in a way more powerful than mere memory or mere
reconstruction. Here in why continuing conversation with JESUS IN THE GOSPELS is essential: for THAT Jesus is also one "read from the resurrection" yet grounded in the experience of him as well in his human existence. THAT mode of contact cannot be replicated, and those interpretations of Jesus retain their distinctively normative character for those wanting to claim the identity of Christians.
b) Crossan is wrong, in my view, when he says this conversation is between a "Jesus Now" (what does HE mean by this, anyway? I don't know how strong a view of the resurrection he espouses, but his language in his books is elusive), and a "Jesus then" WHICH IS A HISTORICAL RECONSTRUCTION. Indeed, Crossan's own textual example is a sort of midrashic conversation with the Gospel's diverse versions, rather than an attempt to "get behind the text" to HISTORY. What's going on here? Is what Crossan means by "historical" simply what I mean by the Jesus of the Gospels? If so, why did he write all those books that got to Jesus by deconstructing the four Gospels?
I will say that as one brought up in "Catholic Christianity" the assignment of a belief in the bodily Resurrection of Jesus to "conservative" as opposed to "liberal" Christianity is foreign to my thinking. I would guess that almost all of the "liberal" theologians in Catholicism would profess a real belief in the real Resurrection of Jesus, from what I've read of the radical tradition, which I am closest to as my mother was, Liberation Theology, I don't think that the "deistic" view of it in terms of the laws of physics is much gone into and would certainly be beside the point.
In no way is the typical barroom village atheist bullshit relevant to what the New Testament says on the matter which, when you carefully read every sentence and phrase, isn't describing a reanimated corpse. On that, alone, you fail to address what I was talking about. Neither does the merely metaphorical assertion that there was no, actual Resurrection of the person, Jesus, but that he "lived in the memory of those who believed." Or that his teachings living on were what was asserted. As other academic assertions of the reality of the Resurrection note, the phenomenon of the continuance of Jesus in the world surpasses that of the Socratic or other merely philosophical survivals of ancient philosophy. Though the one I'm thinking of, this morning, is by an evangelical theologian with whom I disagree about many things with. I don't have any great worries about non-uniformity of belief, there is hardly any area of thought, including science, which doesn't maintain many different, far more hostile differences of opinion than is demonstrated in this 26 year old debate from earlier days of online communication.
I will note that in addressing these two associates of the "Jesus Seminar" Luke Timothy Johnson is quite a contrast to the typical current practices of disagreement, argument and "debate" when he finishes:
I have enjoyed this first exchange. I will wind-up and pitch on Monday.
Luke Timothy Johnson
Robert W. Woodruff Professor of New Testament
and Christian Origins
Candler School of Theology
Emory University
Imagine if secular "debate" online had been conducted in that kind of way. Instead we got the Ted Cruz, Josh Hawley, Lindsay Graham level practices of the new atheists and pseudo-skepticism, crap that wows the mid-brow, college-credentialed and high-school level wise guys who crowd out adult level discussion. The kind of stuff that dominates the culture especially through twitter. Who knows, if more online comment were like it maybe I'd even stop moderating comments here and let all the hate-mail through if it was written on this level.
Update: If you want an example of that kind of Senate Committee food fight style from an academic, here's Robert M. Price anticipating Lindsay Graham in regard to Johnson's book criticizing the Jesus Seminar which Price was a member of. Other than to style Johnson as old fashioned (see the quote from Jack Levine under the masthead of this blog) I don't see much in the way of refutation in the review from "The Institute For Higher Critical Studies."
IT WAS DURING ADVENT last Decemember 7th that I posted this as part of a series going through a lecture by Walter Brueggemann:
But what then?
Well. If we take the antithesis of might, wealth and wisdom, we might
come up with a triad of weakness, foolishness and poverty. And, of
course, that's what we get in Jesus of Nazareth. For God chose
foolishness that is wiser than human wisdom and God's weakness is
stronger than human strength. First, you know the gracious act of our
Lord, Jesus Christ who though he was though rich, yet for our sake
became poor so by his poverty he might make ready rich.
It turns
out that the life of the Crucified One exhibits the counterpoint to the
great seduction of Jerusalem. He is the embodiment of weakness as he
stood vulnerable before imperial authority. He is the embodiment of
foolishness. Terry Eagleton describes him this way:
"Unlike most responsible American citizens, Jesus appears to do no work, is accused of being a glutton and a drunkard. He is presented as homeless, property-less, celibate, peripatetic, socially marginal, disdainful of kinfolk, without a trade, a friend of outcasts and pariahs, averse to material possessions, without fear for his own safety, careless about purity regulations, critical of traditional authority, a thorn in the side of the establishment, and a scourge of the rich and powerful, The morality Jesus preaches is reckless, extravagant, improvident, over the top, a scandal to actuaries and a stumbling block to real estate agents. Forgive your enemies, give away your cloak as well as your coat, turn the other cheek, love those who insult you, walk the extra mile, take no thought for tomorrow."
So far Eagleton.
He
is the embodiment of poverty with nowhere to lay his head or even
healthcare. The remembered Jesus sits amid our posturing, it reminds us
that the great imperial triad of might, wisdom and wealth never
delivers the security or the happiness that it promises.
But I
will not linger over that counter-triad of weakness, foolishness and
poverty that waits silently for us, because that triad is too outrageous
and too remote from our business at hand.
I gave that title the post, No, This is the Real Reason For The Season, noting that if it wasn't for what if someone today lived and spoke has he did would win them near universal dismissal and disdain, there wouldn't be any reason to have Christmas.
If it's the same reason for the season we're working towards in Lent may be debatable, depending on how much emphasis you put on things like late classical-early medieval atonement theology, what happened on Good Friday. Though I think it is indisputable, apart from the idea that Jesus's crucifixion was "necessary for our salvation," "part of God's salvation plan" etc. From the point of view of those who put him to death, the imperial Roman authority as exercised through a brutal and incompetent local gangster ruler, this is exactly what caused it, his presentation of an alternative to their Pax Romana which was not in any way peaceful, the order that it imposed, imposed through brutal violence and confiscatory taxation and appropriation. In the lecture that passage was from, the topic was about us today, not those who witnessed and heard Jesus and their world.
In Brueggemann's talk he noted that that radicalism, I would assert the most radical formulation of The Law ever articulated, was not something that there was much hope of making the basis of justice in the modern world, if it is even possible to enact it in this world.
Jesus was taken out of this world because of it, even though his Resurrection suggests there are limits to the capacity of worldly power in even that most seemingly ultimate human experiences and acts. Even the cynical Roman writer Tacitus complained that Rome's execution of him didn't end it in even the base terms that he was intellectually prepared to deal with.
THE CLAIM THAT Bush v. Gore isn't actually in the same class of rulings as Dred Scott may be true, I'm not a legal technician, the taxonomy of legal categories isn't really that important to my goal and I think those categories are probably somewhat fictitious, just as its claim that it was never to be cited as precedence is.
I classed it with Dred Scott and the rulings of the Roberts Court overturning The Voting Rights Act and Roe v. Wade on the basis of its outrageous exercise of dishonestly asserted judicial power on behalf of the interests of the group to which the "justices" making the ruling belonged to. If you want to create a new class for those outrageous rulings by the imperial Court that can include different species of actions by those legal hacks on the Court, why not consider it done?
The attacks by the white supremacists + one psychopath on the Roberts Court destroyed an Act that, for the first time in our history, enforced the right of Black People and other subjected People to cast a vote and to have that vote have some chance of counting - redoing in a beginning way what the entire history of slavery under the Constitution, culminating in Dred Scott and, after even the Emancipation Proclamation and the Civil War Amendments, Jim Crow continued for most of the history of this country.
As I asserted, if the Civil War hadn't happened and the radicals in the immediate post-war Congress had not passed the 13th, 14th and 15th Amendments, I have absolutely no doubt that the Taney Court and its successor (with members, no doubt, heavily weighted with slave-power supporters and slave-holders) would have done what I said they would have just as the Roberts Court is building its neo-American apartheid country on previous rulings, some made with clearly malignant intent, some using material that the Warren Court gave them when they tried to, for an enormous change, wield that Taney created power for better purposes. That attempt is largely being overturned by subsequent courts, which shows you how unreliable that is for making lasting change. I have no doubt that the Roberts Court in its reimposition of American apartheid is only getting started and subsequent courts will, if history aids them, go even farther as the jr. Senator from Indiana certainly seems to envision.
As to what I'd replace it with? I would certainly look at some of the modern Constitutions written in the 20th and maybe 21st centuries, countries who didn't emulate our foetid old 18th century rag (the Honorable John Quincy Adams notably referred to it as "a menstruous rag" during the abolitionist period, so I have no qualms about calling it one). Madison seemed to grow quite disillusioned with much of it in his last years from what I've read of his writing from that period. No doubt as the florid 19th century corruption under it flourished, it wasn't exactly what he had in mind. Though as a life-long slave holder, he was certainly happy to have that ultimate corruption flourish under it, as Jefferson was after he got over his egalitarian impulses when he was somewhat of a better man.
Update Hate Two: I'm not prepared to say that any of the categories of various actions of courts and, especially the Supreme Court have any meaning in a time and Court where the meanings of words can mean whatever they "justices" of the majority, Republican-fascist side choose them to mean. The creation of the court-power that is exercised to amend and abolish passages in the Constitution, what they really do, was guaranteed to produce that. Instead of the lie of Constitutional stability that the "originalists" and "textualists" claim is a product of their ideologies (what I think is a clearer word that the Honorable Sheldon Whitehouse called a "judicial philosophy") what they have produced is total fluidity in which no one can reliably depend on the meaning of that document or duly passed laws or their durability.
I agree with Whitehouse about the dangers of imposing a "philosophy" on the job of being on the Court. I think of the desire of Oliver Wendell Holmes jr. to impose a "scientific: reading on it from his cynical, inhuman reading of late 19th and early 20th century biology is what produced Buck vs. Bell. I think of the idiotic newer desire to impose recent claims of scientistic reductionism in the form of "neuro-law" and shudder to think of the consequences of that imposition of ideology on the thing.
I think what's needed is for both scientists to have a more thorough training in philosophy to understand its implications for their work and lawyers to have more training in the dangers of adopting ideologies because their work inevitably is too complex to start out with one of those or to pretend to depend on one.
NOT that I think the likes of Scalia or Coney Barrett are honest about their motives in announcing their ideologies, what they want and wanted was more in line with the reimposition of inequality and special privileges for the rich, the powerful and the white as "rights." I would bet that a rigorous review of their work would prove that their "philosophy" was more a thing of convenience when it could "explain" their decision but would be nowhere in evidence when they couldn't square their decision with their announced "philosophy."
IN GOING OVER the Dred Scott decision as analyzed by Louis Boudin at such length, I've learned a lot more about it than I ever learned in any of my reading or any of my history classes in school. I barely learned anything about it in school and not much more than the immediate evils of putting the Scott family back into slavery and the declaration that Black People have no rights that white courts and judges and "justices" need to consider much. Which, of course, is evil enough to damn Taney in the judgment of history, his concurring "justices" as much so. But I think a lot more than just that was behind the decision and the intentions of the "justices" in it and a lot of it looked past the record of the case they were allegedly confined to. They were definitely planning for the future and that, in the new power they gave themselves in that decision, that future would be one of racist inequality, exploitation and judicial collusion with white supremacy, exactly what we are seeing in the Roberts Court and the Republican-fascists of the Senate Judiciary Committee this very week.
I will state now that I think their motive in creating their power to declare the Missouri Compromise unconstitutional was so they could knock down future laws that endangered not only slavery but the white supremacy that they claimed was the correct reading of the Constitution. Just as the Roberts Court has nullified the Voting Rights Act using that power handed to them by the racist Roger Taney and his associates in that case. I wanted to point that out before going further down into the stinking tank of that decision and its corruption.
Let us, therefore, test the decision of the Dred Scott Case by the test thus set up by the Supreme Court and its eloquent defender. Was there any necessity for declaring the Missouri Compromise Act unconstitutional in order to do justice to any litigant or protect any litigant's rights? Tested by that "acid test" the answer must be in the negative. There is not even any room for argument. What wrong would have been visited upon either of the litigants of the Dred Scott Case by the illegal excesses of Congress but for the declaration of the Missouri Compromise Act unconstitutional? Chief Justice Taney himself said that to the litigants it would be quite immaterial whether the judgment below was affirmed or the suit dismissed. The excuse that a formal error in the record must be corrected in order that it may not be erroneously cited as a precedent - assuming that to be good enough in a constitutional case - was made in bad faith because the judgement that he wanted to pronounce could have been pronounced without declaring the Missouri Compromise Act unconstitutional and no error of any kind committed by the lower court was in fact corrected by declaring that Act unconstitutional.
This charge of bad faith which is proven to a mathematical demonstration against Chief Justice Taney becomes even more flagrant with respect to his associates. Chief Justice Taney at least tried to cover his nakedness with a fig leaf. The other judges were shameless. Judge Grier in his very brief opinion concurs with both Judge Nelson who voted for affirmance and with the Chief Justice who voted for reversal, saying that it makes no difference to him which is done. Putting the case very bluntly he says: "Whether the judgement be affirmed or dismissed for want of jurisdiction, it is justified by the decision of the court, and is the same in effect on the parties to the suit."
Judge Campbell does the same: After writing a lengthy opinion concurring in declaring the Missouri Compromise Act unconstitutional, he sums up the following sentence:
"I think the judgement should be affirmed on the ground that the Circuit Court had no jurisdiction, of that the case should be reversed, and remanded that the suit may be dismissed."
Judge Catron begins by saying that the Court has no right to review the question raised by the plea in abatement, which means that the judgment must be affirmed (unless of course, the judgment should be reversed and the decision given in favor of Dred Scott as recommended by Justices McLean and Curtis), and then votes for dismissal.
We thus have three of the judges expressly falsifying the flimsy excuse given by the Chief Justice in the name of the majority for the assumption of the power to declare the Missouri Compromise Act unconstitutional. But the case of Chief Justice Taney and the majority of the court is even worse than what has already been shown. For there is another element of the case which we believe to be decisive on this question. We must admit, however that we have never seen this point made before, and that in view of the fact that this case has undergone examination at the hands of the most learned of our profession, some of them more critical of the majority, when present it here with some diffidence. But, to paraphrase the language of some of the judges of the majority in this case, "we are only discharging our duty" as an honest historian, and we could do no less and remain such.
The criticism of the profession against the decision of the majority follows in the main the point made by Judge Curtis in the conclusion that the Federal courts have no jurisdiction in the matter, it had no right to proceed further and to consider the case upon the merits. As we have already said, we consider this argument unanswerable. But the point thus made does not cover the entire ground. As we view it, the Court had no right to declare the Missouri Compromise Act Unconstitutional even after a consideration of the case upon the merits. Not even on the supposition that the merits of the case were gone into for the purpose of finding additional grounds in support of the contention that the Federal courts have no jurisdiction.
I will leave you on that bit of a cliff hanger because I know this level of detail is taxing when so much else is happening.
If you think my introduction above was over reaching, they were certainly aware of what they were doing and, if they hadn't considered the kind of reaction they could expect from it, the dissent of Curits and McLean would have clued them into that. They were making a very high states gamble and they could certainly not have been doing it merely to put the unfortunate Scott family back into slavery, they had their sights set on something of the proportions of what I suspect was their true goal, of not only protecting slavery where it was but forcing it on the free states, no doubt continually finding under the "rights of property" that any hindrance of slavery in practice in the free states, as the slave power brought their "property" north to work for them, to rent out in free states, probably, with further action of the courts, on land purchased by slave-holders in free states, etc. their goal was to force slavery on the rest of the country and enhance its role in the economy of the country, habituating even those who may have been only mildly opposed to it to its presence among them.*
Just as the Rehnquist and Roberts Court are doing with their attacks on and rollbacks of the progress towards equality and rights and a livable environment using the tools that Taney and company handed to them.
* Grier of Pennsylvania, in his banal and dishonest concurrence was certainly quite willing to go along with even the most obviously dishonest schemes in that direction. Along with James Buchanan of the same state, who is widely believed to have encouraged Grier to concur with Taney and the slave-power. The financial class of oligarchs would certainly have gotten used to doing it and, with them, the other aristocrats in at least some of the Northern states. Hamilton argued for the adoption of the dirty deal with the slave-power explicitly on that ground of profitability due to slave-labor produced crops.
LINDSAY GRAHAM reminds me of John Mortimer's Rumpole Story The Blue Seraphim, specifically the character of Captain Sandy Ransome, the prankster and joker, the theatrical talent of a Brit Army unit that wears ridiculous looking blue plumes in their caps. He stage manages the Christmas pantomime they put on and also tries to stage manage a murder so as to blame a fictitious gay German man of the murder of a particularly sadistic sergeant because he's afraid one of the Blue Seraphim did it.
Lindsay Graham has done this before, first during the Alito confirmation hearings, stage managing Alito's wife, perhaps giving her the cue for her staged fit of tears and similar fleeing of the chamber during his questioning of Alito that made the idiot media forget what a truly putrid judge he was exposed as being during the hearings and, no doubt, ensuring his confirmation to that bench of such dubious justice.
He did it again during the Kavanaugh hearings when Dr. Blasey Ford was being questioned, the Committee had turned the questioning of her over to council and the Republicans hid behind a hireling woman lawyer who was being too reasonable to save their beer guzzling sex criminal. As Lindsay "Lady G, as he is known to style himself in his hidden life" Graham saw that the woman they hired to do their dirty work wasn't doing it dirty enough for him, he broke in and started dishing the dirt himself.
By now you know I am going to go there, as a gay man I am going to claim my right to, the fact that Lindsay Graham's entire political life has been one of playing roles and lying when it isn't merely self-seeking. Lying about the fact that in his very LGBTQ hostile state and party, he has been a barely in the closet gay man who engages in gay sex, something that has been widely known in gay circles for decades.
There is a type among gay men that I know when I see it, it is someone who turned a necessity of non-disclosure into a practice of deception and lying. He certainly lied about his sexuality, if not in words than in practice, for his entire military career, going back even before "don't ask don't tell." Even as he would, no doubt, support the bigoted declaration that the Army needed to expel LGBTQ members and, perhaps, would participate in that practice or at least turn a blind eye to it. Sometimes the gay man who is passing for straight won't go past a point in his deception and lying, some wouldn't even join in laughing when straight guys make anti-gay comments or even when it was others under the LGBTQ category were the targets. Some, however, would not only join in the laughter but in spouting the bigotry.
Lindsay Graham, in his life and career have gone way, way past that point. He couldn't retain his position in the Republican Party if he hadn't, just as the Republican pedophile Speaker of the House Denny Hastert so clearly did. As Senator Larry Craig did until he got caught seeking a quickie in a men's room by an undercover cop. It's a party which has had a number of gay men who have lied and deceived and practiced the rankest of duplicity and hypocrisy in a party which is officially and for purposes of politics opposed to equality for LGBTQ people, a party which is hell bent on sending us back to the recent past where discrimination against us was legal in most of the states and all of the federal government.
Lindsay Graham's play acting and pretense goes much farther than Judiciary Committee hearings. He was doing his dishonest act as he pretended he was a man of some principle, hitching his little wagon to John McCain, letting everyone know he was his best buddy in the whole, wide world. Only, once McCain was dead and no longer of any use to him, he hooked it to Donald Trump even as he derided and threw shit on McCain's memory.
Anyone who thinks Lindsay Graham changed, at some point, never really understood what a lying, dishonest, dishonorable discharge he's always been. He has no morals, he has no moral center, he has nothing but pretense and lies and pantomime. There is nothing the sleazebag wouldn't do as long as he was sure his voters in South Carolina would keep him in office. He has never been any better than he is today.
Lindsay Graham's execrable performance in the nomination hearings will get him what he wanted, media attention (he sought it out as soon as he flounced out of the hearing room), it will get him the votes of the racists of his state and those in the Republican Party who are all about money and who have no higher motive in anything they do than their own profit. He will keep his position in the putrid Republican-fascist party and will, certainly, play this role again, especially when the Republican-fascists hold the majority in the vile Senate again.
He is a disgrace to gay men, an example of the worst among us, a truly vile and disgusting human being, one of the worst among us in the larger context.
MY PURPOSE in going over Louis Boudin's chapter on the actual, not legendary, origin of the current Judicial Power which the Roberts Court is using to destroy most of the progress made towards equal justice and equal rights and the protection of the environment and other hard won progress since the worst days of the 18th and 19th centuries and much of the 20th isn't primarily to expose the evils of the Taney court in the Dred Scott decision, worthy as doing that is. It is to attack the Republican-fascist power grab that has nullified the Voting Rights Act, the actual motivation of that was the recent ruling handed down by that most obvious contrast to the moral power and brilliance of Judge Ketanji Brown Jackson on display in the degrading spectacle of the Senate Judiciary Committee. In nothing from Boudin's case gone into so far is the sheer hypocrisy of the Roberts and earlier Courts in exercising their usurped power to nullify such laws shown as in the pretense that they are following the rules as laid out here yesterday and into today's portion of the book. Beginning with the completion of the last paragraph I started to give yesterday in which Boudin discusses the corrupt conception of that power in Taney's breaking the rules and crushing logic in order to get back at the adoption of the Missouri Compromise which obviously deeply offended his slave-holding sense of "justice" due to him and other slave holders on the basis of "property" rights, that any part of the Country should be freed from slavery.
But that was not permissible under our official theory of the Judicial Power. Under that theory the right of the courts to pass upon the constitutionality of the laws is derived from the necessity to pass judgment on the rights of individuals. It is a necessary corollary of that theory, that legislative acts may not be passed upon adversely by the courts except in cases of strict necessity; that is to say that the failure to pass upon them would result in a denial of some right to the individual litigant whose rights are adversely affected by the statute. This official theory of the Judicial Power has been recently restated by Mr. John W. Davis as President of the American Bar Association, August, 1923, in the following language.
"There is a curious misconception underlying much that is said and written on this subject as to the duties that the court is called upon to discharge. One might suppose from some of these outgivings that the court sat at the outer gate of Congress waiting to visit a jealous censorship of the laws that issue from that portal; and over them it had a general power of life and death, of approval or of veto. But august as are the functions of the court, surely they do not go one step beyond the administration of justice to individual litigants. As the court itself has said but yesterday (Commonwealth of Massachusetts . Mellon, June 4th, 1923):
"'We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only where the justification for some direct injury suffered or threatened, presenting a justifiable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise should stand in the way of the enforcement of a legal right.'
"Shall we say that when an American stands before the court demanding rights given to him by the supreme law of the land, the court shall be deaf to his appeal? Shall wrongs visited upon him by the illegal excesses of Congress or legislatures be less open to redress than those which he may suffer from court, or sheriffs, or military tyrants or civilian enemies? If this be so, if in any such case the ears of the court are to be closed against him, it is not the power of the court that has been reduced but the dearly bought rights of the citizen that is taken away." (48 American Bar Association Reports, 204)
It will be noted that Mr. Davis as well as the the United States Supreme Court concede that that august body has no general power of declaring acts of Congress unconstitutional and that the source of that power lies in the necessity of the case, as so eloquently stated by Mr. Davis, the necessity of doing justice to individuals and of securing to them their rights against the tyrannical acts of Congress and other legislatures. But the stream cannot rise above its source; the power cannot extend beyond the necessity that creates it. In fact not only concede, but vehemently assert. As it must, in order to escape the charge of usurpation.
I am going to ask you to consider that if the Court's power is based on the necessity of doing justice to individuals when the Congress violates their rights and legitimate freedoms guaranteed through and allegedly by the Constitution, if that is the only legitimate basis for the Supreme Court extra-constitutionally overturning a duly enacted law OUT OF NECESSITY, why does that not apply when state legislatures when they blatantly adopt laws to deprive Black People, other People of Color, age demographics, classes of any kind of People of their rights, using that "principle" to permit states run by Republican-fascists from discouraging their ability to vote?
The Roberts Court is using that usurped power exactly against the same People that Taney's decision attacked and dispossessed of their rights. In parts of his decision, indeed, he hampered the rights of the majority in free states to legislate on behalf of freedom in their states as they use that power to enable the legislation of the deprivation of rights. With time, I fully believe, he would have nullified the abolition of slavery as his passages permitting slavers to practice slavery when they entered free states would have been expanded farther. The Roberts Court upheld by inaction Texas's fugitive-womb act in a similar maneuver.
Why doesn't that principle which that power is supposedly based in and is seen as a necessity allow the Supreme Court to practice that power over state governments controlled by white supremacists or any power which draws legislative and senatorial districts and, Congressional districts with the purpose of depriving voters the right for their vote to count equally with those of other residents of the state through gerrymandering for that purpose?
The answer to that is that the Supreme Court is a law unto itself and its members can invent standards and dispose of them as easily as they do duly enacted laws of the Congress and, in fact, of entire passages in the very Constitution they claim they are protecting and defending and administering as law.
In Senator Sheldon Whitehouses' questioning of Judge Jackson yesterday, he noted that the Supreme Court routinely disposes of the Seventh Amendment rights of access to the courts by corporations on the basis of those bogus "contracts" that he points out that the customer or client or employee has no real ability to negotiate with the rich, powerful corporation or person. I noted how Taney used the Fifth Amendement to turn an entire race of People into non-persons and set up all white people as their superiors - whether or not any of the white people objected to that. The Supreme Court created "persons" out of corporations through the collusion of its members, its clerks and corporate lawyers in the 19th century. The Courts from the Sullivan Decision on have routinely enabled those corporations to have the ability to destroy someone's character and their lives through broadcast and published lies, especially when those people are Democrats or politically progressive on the basis of a ridiculous reading of the First Amendment, privileging the telling of lies over the telling of the truth (and if you don't think I was tempted to write a very long post on Judge Jackson's answer to Senator Klobuchar on press freedom, you haven't read much of what I've written). I doubt I will ever live to see the day when a Supreme Court makes that most basic necessity of democracy, to know the truth so it can make us free, a superior matter of First Amendment rights than the permission to lie that they created. The necessity of allowing for unintended or unconscious mistakes or just speaking out of ignorance that she reasonably mentioned has been expanded absurdly and unnecessarily into what we have today when FOX and the rest of the Republican-fascist or Republican fascist media can lie us into a Trump situation, leaving us at the non-mercy of billionaires, not only domestic but even foreign dictators who are intent on destroying OUR democracy.
When the Warren Court sought to use that power for better purposes, the results were not always or uniformly good. Some of their rulings became the tools of later courts in corrupting our country, JUST AS THE WORDS OF THE REVEREND MARTIN LUTHER KING JR. CAN COME OUT OF THE MOUTHS OF REPUBLICAN-FASCISTS TO PROMOTE WHITE SUPREMACY AS HAPPENED IN THE SENATE JUDICIARY COMMITTEE YESTERDAY. And, as the present court shows, there is no shame when they have no trouble gutting those better intended rulings on behalf of the white supremacists, the male supremacists, the fascists and the billionaires.
If they do that and have gotten away with it to the extent they have, over the entire period after the Dred Scott decision was used by Taney to grant the Court its present day imperial powers, there isn't anything you can imagine that is out of the question for corrupt "justices" selected with the dark money they have allowed to flourish in our political system to do on behalf of the enemies of those without billions and the power that it brings.
THE MORE YOU look at the Dred Scott decision, both for its turning Black People into non-persons, into mere property of the slave holders whose representation on the Supreme Court was overwhelming and out of all measure to the percentage they were in the country, the clearer it is that even more than the sheer evil that is generally attributed to Taney and his concurring associates was there in their scheme.
I think they had nothing less envisioned than to entirely suppress abolitionism and to enforce slavery throughout the country. If the Civil War hadn't happened, I think they and subsequent Courts may well have done that. And their plans certainly including amending the Constitution through their newly self-granted powers, bypassing Congress and president and state legislatures to do so. I think that was the reason for them inventing their power to overturn some of the most important legislation that has ever managed to get through the Congress and signed by a president, from the Missouri Compromise and continuing today with the nullification of the Voting Rights Act that the present Roberts Court is using to turn us back to the days of American apartheid, this time not confined to the states of the former confederacy. The Roberts Court, dominated by white supremacists and one truly twisted and spiteful man, are started on doing what the Taney Court was merely delayed in doing. And don't forget the Rehnquist Court overturning an actual presidential election in 2000, covering its disgusting act with the pretense that future Courts and courts and litigants and law scribblers were never to use their criminal act as a precedent for future excuses to do evil. Something which the last two decades have proved was a lie handed down from that highest bench.
The dishonesty and violation of not only the rules of the law and the courts but logic, itself is totally permissible by the Court rigged procedure as can be seen in this next section.
I will note that I have included some paragraph breaks for what I hope is clarity and I may highlight some passages for emphasis that Boudin put into italics.
Judge Curtis has answered Chief Justice Taney's argument on the constitutionality of the Missouri Compromise Act in a manner that seems quite unanswerable. He has also demolished that part of the Chief Justice's opinion that disposed of the effect of Scott's sojourn in Illinois by a reference to the law of Missouri - although on this point there has been some difference of opinion among jurists. But we are not concerned here with the merits of either of these controversies. What interests us here is, first, the historic fact that the Missouri Compromise Act was declared unconstitutional - and, secondly, the manner in which that as done in so far as it affected the growth of the Judicial Power.
It is in the latter connection that the questions we are now considering become important. For the question of the manner in which the Missouri Compromise was declared unconstitutional turns largely on the question whether or not such a declaration was necessary to the adjudication of the case before the Court. The Chief Justice and his associates of the majority were stung to the quick by the charge that the passing upon the constitutionality of the Missouri Compromise act was an extra-judicial performance not necessary for the adjudication of the case. They kept on defending it, and so do some of their adherents to the present day. Mr. Justice Wayne, whose concurring opinion is published in the official report immediately following that of the Chief Justice, prefaces his remarks by the statement that "
" Nothing belonging to the case has been left undecided, nor has any point been discussed and decided which was not called for by the record, or which was not necessary for the judicial disposiotion of it, in the way that it has been done, by more than a majority of the court."
Let us therefore see whether that is so in the Chief Justice's own view of the case. In analyzing his opinion, the first thing to be noted is that the Chief Justice did not follow in his discussion the order of the questions suggested by us above, in that he discussed the question of Scott's sojourn in Fort Snelling before discussing the question of his sojourn Rock Island, although the latter question arises first in the case, both in the manner in which it appears in the record and as a matter of logic.
It will be recalled that Scott's sojourn at Rock Island occurred before his sojourn at Fort Snelling, and in the official record of the case that fact appears first.
Of course, if, for logical reasons in the development of the legal argument, the fact of his sojourn at Fort Snelling were of greater importance than his sojourn in Illinois, the order in which these facts have actually occurred or in which they have appeared in the case would be of no importance. But such is not the case here.
On the contrary: Not only the logic of the case but the economy of the argument demanded that the effect of Scott's sojourn in Illinois should be considered first. And the Chief Justice Taney practically confesses that he was not doing the proper thing in departing from the natural order of the case, by the excuse which he gives for doing so.
He says that he wanted to consider first the question of the freedom of Scott and his family, and then, if he should decide against the freedom of the rest of the family, he would consider whether at least Scott himself was free. But this is clearly a subterfuge. For as a matter of fact the ground upon which he finally disposed of the question of Scott's sojourn in Illinois - namely, that upon his return to Missouri he lost the benefit of whatever freedom he may have acquired in free territory, disposed of the whole case, and the very elaborate discussion of the entire question of the constitutionality of the Missouri Compromise became superfluous.
The real reason for Chief Justice Taney's departing from the natural and logical order of the case was that that course would have prevented him from discussing the constitutionality of the Missouri Compromise Act, and that was his chief purpose in the second decision.
But that was not permissible under our official theory of the Judicial Power. Under that theory the right of the courts to pass upon the constitutionality of the laws is derived from the necessity to pass judgment on the rights of individuals. It is a necessary corollary of that theory, that legislative acts may not be passed upon adversely by the courts except in cases of strict necessity; that is to say that the failure to pass upon them would result in a denial of some right to the individual litigant whose rights are adversely affected by the statute. . .
I can't remember who, in the discussions around the Supreme Court and the outrageous Republican-fascist race-baiting lies told about the nominee to the Court, Ketanji Brown Jackson, asserted the possibility or removing a rogue or dishonest or sleazy or even questionably criminal "justice" by impeachment. Let's put that to rest, the removal of a Supreme Court "justice" by impeachment is as much a Constitutional myth as removing a clearly criminal President by impeachment. The failure to remove in the two Trump impeachments the most clearly criminal president in the history of the country must force us to face the fact that the Constitutional mechanism for doing that doesn't AND HAS NEVER WORKED TO CHECK THE BEHAVIOR OF A CRIMINAL WHO KNOWS THEY WILL GET AWAY WITH IT. It certainly is nothing that the most sleazy members of the Supreme Court, those who lied in their confirmation hearings, those who take emoluments from people who have put them on the Court to do their bidding and whose bidding they do on the court.
All of that has produced the out-of-control, shameless Republican-fascist controlled Court we have had for this entire aging century. That trend has always been there in the Court which, as Paul Finkelman and others have pointed out, has always seen "justices" hearing, refusing and deciding cases in which they have a clear financial interest. Notably in legal slavery and in the post-Civil War period, de facto slavery or its near equivalent.
The extent and the danger of the Court's out-of-control and impune power grab will see even the supposed rules of procedure and even logic be tossed aside - along with the Truth - has always been dangerous, now, in the Federalist-fascist selected Supreme Court majority we have, it is more dangerous than it has been any time in my lifetime. One decent, even excellent nominee to the Court is good so far as that goes, it is not likely to go the whole way in that in our lifetimes. Certainly not in what time remains to me.
This question is as important as who is the president because, as we have seen, either through the outrageous Bush v. Gore power-play by the Rehnquist Court or the Roberts Court working with Republican-fascists in state governments to reimpose voting restrictions on Black People, on young People, on others who may vote more reliably for Democrats, who gets to be president depends on them not being able to do that. And there is nothing in the goddamned Constitution that will reign it in.
I think we may need to amend the Constitution by the regular means to adopt Madison's proposed amendment banning the various branches from usurping the roles of the other branches as the Court has continually and increasingly done after Taney stole the legislative role for the Court to promote slavery. That he was doing that, making the Court an imperial power to deny millions and more into the future of their most basic rights is totally consistent with the schemes of dictators, tyrants and other gangsters. He was a black robed thug, worse than the worst slaver, the members of the Roberts Court majority are his spiritual and intellectual heirs.
IT IS REMARKABLE how many times a day right now we hear about the danger of lies in the mass media and in social media and no one figures there is anything to be done about it. How Putin controls Russia with lies in the mass media, how lies he promotes in the United States as carried by FOX promotes his invasion and war on Ukraine, how his puppet, Donald Trump almost destroyed American democracy . . . .
Everybody's talking about lies and how dangerous they are BUT IT IS HELD ON THE BASIS OF "THE FIRST AMENDMENT" THAT WE ARE NOT TO BE PROTECTED FROM THOSE DANGERS, NEVER, EVER, FOREVER, NO MATTER WHAT OUR EXPERIENCE OF PERMITTING LIES LEADS TO. Which is totally crazy, it is the mass delusion of our time. The idea that even if they didn't know that c. 1787 that we are never, ever to learn even the most terrifying lessons of subsequent history and govern ourselves on our present knowledge because of words a bunch of rich, white men from more than two centuries ago wrote is even stupider.
The impotence of the United States government to protect democracy from lies proves that things, as they were set up and developed, have functioned to force the United States government to be unable to do what the Constitution claims are the first reasons for setting up the government and, so, the first responsibilities of civil government,
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
As we are seeing in the lie-fed People of Russia, you can't have a "more perfect Union" if People are successfully lied to. Being fed lies through the modern mass media will prevent that.
You cannot establish Justice, as we certainly can see over and over again if a majority of the population are fed lies in the mass media.
Domestic Tranquility is certainly not a product of lies.
A common defense is certainly not produced by lies, those permitted by the Supreme Court in our country have left us vulnerable in the most dangerous ways to some of our worst enemies.
The general welfare is more than just endangered through media carried lies.
The Blessings of Liberty are certainly lost through lies because People who have been fed or bought into lies can't be free.
The lies of the oil and gas companies, the coal industry and others whose lies appear all over our media, the lies of the pharmaceutical companies pushing addictive drugs through lies, and a thousand other corporate lie campaigns are not only endangering our posterity but may ensure it will be cut of.
If the Constitution as written in the late 18th century cannot produce and, indeed, prevents what it was sold as delivering then it is a flop. The only thing to do with a flop is to stop using it and to find something that works.
We are as endangered by the lies permitted to flow out of the American media as the People of Russia and Ukraine are IF YOU HAVE TO BE REMINDED, TRUMP IS STILL A POLITICAL FORCE AND EVEN IF HE ISN'T THE REPUBLICAN-FASCISTS HAVE A GOOD CHANCE OF RUNNING THINGS AGAIN SOON.
Our Constitution is a failure because of the language of the First Amendment and others, and as the Supreme Court has been allowed to amend it through the power grab we've become so dangerously accustomed to. Pointing out that Taney used the Bill of Rights to deny Black People their full humanity was to only state the truth of it. HE SAID SO IN HIS SUPREME COURT DECISION IN THE DRED SCOTT CASE. The words of the slave-holder Madison and his fellow members of the First Congress were dangerously vague in several instances, clearly even the Fifth Amendment could be used to turn an entire race of People into property or, in the case of Black People into non-persons by a racist, white supremacist, slave-holder "justice" of the Supreme Court and a majority of his fellow racists. And in the coming days we will see racist, white supremacist "justices" on the Roberts Court return us to something closer to that than seemed possible after 1965.
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I have slammed Jemmy Madison for a lot of things, figuring all of the friggin' founders need to be taken down a peg and several of them many more than one. He was a slave-holder who never freed slaves he could have, that alone damns him as a hypocrite, though unlike Tommy Jefferson, he didn't rape and have children with a slave girl and as his enthusiasm for slave breeding and holding increased after he declared that "All men are created equal" endowed with inalienable rights by God. Never lose a chance to point that out.
But, as over-rated as I think Madison was, one thing that Madison proposed for the Bill of Rights that the other members of the First Congress took out may have prevented the Supreme Court power grab I've been going over at such length. He proposed this amendment:
The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments,” he said in the last part of his proposed Bill of Rights.
Under that the Taney created power for the Supreme Court to nullify duly adopted laws by the Congress and President would have clearly been unconstitutional. Though it may not have stopped them from doing it their chances of getting away with it as long as they have wouldn't have been as great. But it may have stopped them from doing it.
I can't remember where I read or heard someone saying that the practice of letting the Supreme Court amend the Constitution through clearly illegitimate means, not only taking on the role of the Congress and the President but 2/3rds of State Legislatures as well, was done because of the extreme difficulty of amending the Constitution through legitimate means spelled out in the Constitution. That is one of its major defects and one which the "founders" fetish forces us to be quiet about. The slave-holders and rich white men who wrote the Constitution were amateurs without any experience of how to set up a then novel form of government - that they thought the evils of the Roman Republic were a good model for that only serves to prove that in the experimentation of the modern period, we've got better examples of how it can and can't work than they had available to them. While I take the dangers of making major changes to the United States Constitution seriously, while so many of us are addled by lies promoted by billionaire and millionaire oligarchs, Republican-fascists, the corrupt cabloids and networks, I think things are devolving to the point where we will have no choice but to risk it.
Since rules are all important, ridiculously so when the rules can produce shit such as is flowing out of the Roberts Court these days and people figure they must follow it, maybe some of the dangers could be lessened by setting up strict rules to prevent such influences. The first one would be that there is a basic standard of equality SEPARATE FROM FINANCIAL STATUS which the results cannot violate. And that nothing that gives a higher status to those with great wealth can be considered to be part of the basic Constitution of the United States. In all cases to be adjudicated no party should be able to rig things through their wealth as the law has always been rigged.
I remember the day about twenty years ago that I realized the most basic value of democracy wasn't "freedom" it was total equality and that any legitimate freedom would come from that equality, that we are to do to all others what we would have done to ourselves. I still had silly notions about even that proximity of religious morality to government was too uncomfortable to express in such language. Now I think it's the separation of government from that truth, that expression of The Law and the Prophets, that was not only silly but one of the biggest mistakes that the ideology of modernism foisted on a suckered world. There, I said it.