The Scheme 11: Faculty Lounge Report

OF THE SEVERAL SENATE Judiciary Committee members who I have great respect for, Masie Hirono, Amy Kloubouchar, Richard Blumenthal, etc. there are none I respect more than Sheldon Whitehouse who, in his questioning and the content of his speeches is in a class by himself.

His series on The Scheme by big money and right wing ideologues to capture the Supreme Court and, once again, make it what it mostly has been for most of its existence, their tool, a scheme set into motion by the former "justice" Lewis Powell when he was still a corporate lawyer and genteel segregationist, he has hit so many nails on the head that he should be an honorary member of the Carpenters Union, though considering how that is run these days, maybe he'd rather stick with the disreputable company of the Senate. 

The eleventh in his floor speeches as part of his series proves his even-handedness in criticism because he squarely takes aim at President Biden's ill-considered Commission On The Supreme Court of the United States, a doomed effort if change was the goal because, as Sheldon Whitehouse points out, most of the members of the Commission were members of the same club which has a professional and personal interest in nothing much changing with that cesspool of corruption pretended to be a pristine reservoir of pure water.   His description of it as issuing a "Faculty Lounge Report"  is perfect.  It recommending little to nothing change, certainly nothing that is vitally important, is what can be expected from such an august body of law and judicial insiders, either expecting to argue cases in front of the nine autocrats, especially the six Federalist-fascist apparatchiks who form the court majority, or they want to be able to place their students in high-status clerkships with the Supreme Court or high up in the lower courts or they want to maintain their status within the big, cushy club of the legal-judicial racket and the last thing they could be counted on was to come up with real proposals to really reform the utter corruption that the Supreme Court is.

Here's the video of his eleventh speech in the series, all of them are available at the Senator's Youtube channel, 

 If President Biden really wants to look at reforming the stinking corrupt Supreme Court he should have rejected the report from the Faculty club and appointed people without a motive almost as corrupt as Clarence Thomas' and as corrupt as the Federalist fascists on the Court.  As Senator Whitehouse notes, two of the members of the Commission, Nancy Gertner and Lawerence Tribe issued a sort of dissent in which they laid out the fact that their colleagues had issued a cover-up, not an honest report.   Maybe, if they retain either or both of the houses of Congress, the two judiciary committees might consider naming their own commission of experts to come up with something.  Nothing that doesn't basically alter the corrupt Judicial Power that I've been railing against will really get the job done, though.   I think reviving that rejected Bill of Rights amendment proposed by Madison to require the various branches of the federal government not overstep their explicitly set out roles in the Constitution should be considered.

If it turns out that a Supreme Court stripped of its usurped powers of judicial review of duly adopted federal laws is a problem, well, it would have to be a pretty big problem to match the problem of the Roberts and other Courts stripping voters of their right to cast a ballot and to have it counted, to refuse to keep partisan legislatures from nullifying the effectiveness of votes through the corrupt practice of gerrymandering, to nationalize the bodies of women, giving state legislatures, police and judges and "justices" power over what happens past where any state has any legitimate interest that overrides Womens' self-determination, promoting Americas indigenous form of fascism, white supremacy, making sure that our elections and political systems are open to the same corruption of big money that got most of them on the Court, . . . the list of evils the Supreme Court has brought us is astonishing for something held up as if it were sacred instead of the most certain avenue of corruption in our government.   That certainty is the reason that the big money, the oligarchs and autocrats spent hundreds of millions capturing the thing.  It should be no surprise that since its members are unelected and hold their position for life, without any realistic chance that they will ever be removed by impeachment for even the most obvious of corruption and even law-breaking, it is to be expected that the thing will have that role in corrupting democracy and facilitating inequality, racial, gender and, most of all, financial inequality.

it is unjust to accept evil, and it is even worse to become accustomed to evil, as if it were an inescapable dynamic caused by the events of the past

AN ARTICLE ABOUT Good Pope Francis today issuing the long sought apology from the Pope for the Catholic Church's role in the wider Canadian residential school policy proves that he's got the pastoral ability and experience as a pastor that his immediate predecessors lacked in such abundance.

The April 1 encounter was the fourth occasion that Francis met with representatives of Canada’s Indigenous community visiting Rome this week. From March 28 - April 1, the pope had previously held separate meetings with delegates from the First Nations, Métis National Council and the Inuit Tapiriit Kanatami. 

“Through your voices I have been able to touch with my own hands and carry within me, with great sadness in my heart, the stories of suffering, deprivation, discriminatory treatment and various forms of abuse suffered by several of you,” the pope said on Friday. 

“It is chilling to think of the will to instill a sense of inferiority, to make someone lose his or her cultural identity, to sever their roots,” he continued.

After sitting through hours of testimonials throughout the week, Francis said he felt both “indignation and shame” at what he had heard. 

“Indignation,” he said, “because it is unjust to accept evil, and it is even worse to become accustomed to evil, as if it were an inescapable dynamic caused by the events of the past.”

“And I also feel ashamed,” he continued. “Pain and shame for the role that several Catholics, particularly with educational responsibilities, have played in all that has hurt you, in the abuses and disrespect toward your identity, your culture and even your spiritual values.”

The contrast between that and the ruinously expensive show-biz extravaganza of John Paul II's trip to Canada couldn't be greater.   

The example of the late Saint, Archbishop Desmond Tutu and his associates in the long Reconciliation process in South Africa, something like that within the Church should probably cover this, one in which the testimony of those wronged and those who can speak credibly on behalf of those who aren't able to speak for them will give credibility to any proposed reconciliation and healing.  I will be interested to see if anything like that happens in the Synod on Synodality that is going on produces anything like that and where it will go.  A number of national areas of the Catholic Church are well ahead of where the U.S. Church is in that, I believe Canada is doing a far better job of it, from what I've read.

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It strikes me that this sentence from Pope Francis is relevant to what I posted earlier, about how habituated we are to the Supreme Court usurpation of absolute power and the evil of that banal state of passive, habitual acceptance of it:

“Indignation because it is unjust to accept evil, and it is even worse to become accustomed to evil, as if it were an inescapable dynamic caused by the events of the past.”

That says it so well that I'm sure I'll use it soon in addressing the judicial power and the disgusting and false aroma of sanctity and assertion that the Supreme Court is deserving of a piety which even the Pope is rejecting as a given for the Catholic Church he is the head of.  Would that the Supreme Court "justices" would be so humble. 

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

IN CONTINUING ON with the illegitimate, outrageous and still continuing usurpation of power by the Supreme Court which the Roberts Court is using to send the country back to the worst days of American apartheid,  Boudin shows that the actual power grab was not unremarked on and unopposed by some of the most reputable lawyers of the time, including one whose view of the decision had something the Supreme Court power grab never has had, an indication that a majority of voters agreed with that view of it, Lincoln whose election as one of our greatest presidents was attributable to the opposition to the Dred Scott decision.   No Supreme Court "justice" who has used that usurped power can make that claim that they hold their position as a result of the vote of what is pretended they consider the highest authority in government, when they aren't asserting that greatest power is, by action and as a presupposition to that action, though never in honest declaration, themselves.   The Roberts Court has demonstrated that to within that mathematical proof in their demolition of the Voting Rights Act.  I'm going over some material I covered in a footnote earlier in this series because I think what Thomas Hart Benton said deserves to be read again.

It should also be noted here that the Dred Scott Case was not only of a revolutionary character with respect to the relation of the Federal Judiciary to the Legislative Department of the Federal Government, but that in destroying the Missouri Compromise Act Chief Justice Taney employed as his lever a revolutionary conception of the Due Process clause which was used by his successors as a means to revolutionize the relations of the Federal Government to the state governments, as we will show when we come to discuss the Fourteenth Amendment.

The great excitement caused by the Dred Scott decision is well known to all students of American History.  The word "excitement" is hardly adequate;  the word "rebellion" rather more adequately expresses the public sentiment in the North.  Its results are equally well-known, although historians are still debating whether or not Dred Scott actually brought on the Civil War.

Mr. Warren, in his [work] "Supreme Court" says that the decision in the Dred Scott Case elected Lincoln, and the election of Lincoln brought about the Civil War.

The decision was attacked from many angles:  For the sentiments expressed, or supposed to have been expressed, by the Chief Justice and other members of the majority;  for its false history, or alleged false history,  for its bad law, which it was claimed was  at variance with the court's own decisions on many points.  Subsequent decisions of the United States Supreme Court have undoubtedly shown the Dred Scott decision to have been wrong on many points.  The important thing, however, from our point of view, is not so much the revolt of public opinion against the court for having rendered such a decision, as the attitude of the leading statesmen of the time to the decision as a rule of action binding upon the Congress and the Executive Department of the Government.  In this connection we are not interested so much in the opinion of those who denied the obligatory force of the decision because it was obiter dictum, as in the opinion of those who denied its validity as an exposition of the Constitution obligatory on the other departments of the government because of the theory of government which it presupposed.  And there can be no doubt that many of the leading statesmen of the time - men whose eminence as lawyers was unquestioned, and whose fame as statesmen has gone down in the pages of American history - have taken the latter position, thus showing that the Judicial Power as we understand it   now had not yet become firmly established.

One of the eminent jurists and statesmen of the time who refused to recognize the authority of the Judiciary as an exclusive exponent of the Constitution was Thomas H. Benton, the Great Missouri statesman whose eminence during the Middle Period was excelled by three men only:  Daniel Webster, Henry Clay, and John C. Calhoun -not counting General Jackson, who was in a class by himself.  Benton's opinion on this subject is particularly important since he had the honor of being seriously considered as successor to Chief Justice Marshall, thus being classed with Daniel Webster and Henry Clay as a statesman-jurist.  In fact, it is believed that it was due to his own disinclination to accept the position that he was not actually named to the position which Marshall vacated and Taney filled. (Warren, "Supreme Court," II 265)

Benton was now at the close of his distinguished career, and his pronounciamento on the Dred Scott decision may well be considered his last public act - in the nature of a political testament.  It should also be remembered, in this connection, that Benton was himself a Southerner, coming from the slave-State Missouri, and a Democrat, although an anti-slavery Democrat.  Benton's pronunciamento on the Dred Scott to took the form of a volume about two hundred pages long, published late in 1857 under the somewhat cumbersome title of Historical and Legal Examination of that Part of the Decision of the Supreme Court of the United States in the Dred Scott case which Declares the Unconstitutionality of the Missouri Compromise Act and the Self-Extention of the Constitution to Territories Carrying Slavery with It. (N.Y, D. Appleton Col, 1858)

The body of this work is naturally devoted to a detailed examination of the constitutionality of the Missouri Compromise Act, but the introductory chapter is devoted to the author's general position on the subject, including his attitude towards the Judicial Power.  Indeed, this attitude, fundamental in the entire discussion, appears in the very opening paragraph of the Introduction which reads as follows:

" The title is an index of the character of this Examination, which only goes to the two points mentioned;  and goes to them because they are held to be political, affecting Congress in its legislative capacity, and on which the Supreme Court has no right to bind or control that body;  as heretofore seen in the case of the Bank of the United States, the Section Law, &c.;  cases in which Congress followed its own opinoin of its own powers, regardless of the Court's decision."

Benton then proceeds as follows:

"Congress holds its powers from the Constitution . . . The duty of the member - his allegiance - his fealty - is to the
Constitution;  and in performance of this duty - in the discharge of this allegiance - in the keeping of this fealty - he must be governed by the words of the instrument and by the dictates of his conscience.  . . And here it otherwise - was Congress to look to judicial interpretation of its powers - it would soon cease to have any fixed rules to go by:  and the Constitution itself, like the Holy Scriptures, in the hands of councils and commentators, would soon cease to be what its framers made it.  . . .

"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 the government - one of them for thirty-six years;  and 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 . . . .

"Far from settling the question , the opinion itself has become a new question more violent than the former!"

Benton closes this Introduction with these words:

"I object to the Court's opinion, not only because it was without jurisdiction , and wrong in itself, but because it was political pertaining to the policy, or civil government of the Union - interfering with the administration of the affairs of the State."  

This was also Lincoln's opinion on the subject. And it may be said it was probably the position of most of the leading lawyers of the North at that time; the Southern lawyers either having changed their views on the subject under the stress of necessity arising from the Slavery problem, or keeping their opinions to themselves because of the agitation of that problem.  And it may be said without fear of contradiction that before the Slavery problem became acute Benton's point of view was more popular with Southern statesmen than those of the North. 

The things that the Taney Court overturned, though they had been settled law for thirty-six and seventy years, of course calls to mind the laws the Roberts Court has overturned, the Voting Rights Act and Roe v. Wade - the second one is especially interesting because in their sleazy inaction around the Texas bounty on those helping a woman obtain an abortion permits a state to violate the then still standing Supreme Court made law, no doubt an all too temporary act of judicial dis-empowerment.  Both of them provide a solid case in why it's dangerous to allow the Court to nullify duly adopted federal law and to re-write the Constitution.  The fragility of Supreme Court made law, such as the universally mentioned Brown v Board,  in the hands of a future, malignant court such as we have now, proves that allowing that power on the basis of such allegedly settled benevolent Supreme Court law is a delusion. 

We, of course, accustomed to that usurped power by the Supreme Court, lulled by the rare use of it by the Warren Court to the opposite end than it has almost always been put by the general conservative servants of wealth and power and corporations that have been the characteristic members of the Supreme Court, even as those rulings by the Warren and the Burger Court still dominated by the members who were there with Earl Warren are being gutted and overturned in the Republican and, now Federalist-fascist dominated Court, we are unaware that things were ever not thus.

The fact that lawyers such as Thomas H. Benton and Abraham Lincoln saw that usurpation of power by the Taney Court as outrageous proves that it was the Taney Court and not the legendary John Marshall in the piddling Marbury v. Madison that created the power for the Supreme Court to nullify laws of importance and, in fact, to, as Benton put it, insert clauses into the Constitution by Court fiat, clauses that could not have been put in it by the framers or by subsequent Congresses, presidents and a super-majority of the state legislatures.  The history books that we all had in 10th grade lied about that, I assume either out of ignorance or because they wanted to cover up the actual corrupt source of a power which has been so useful to the rich and powerful, American apartheid and white supremacy, and corporations which the emboldened Supreme Court created as "persons" in the post Taney period.

Our commonly received "history," especially that gotten through movies and TV and, may God help us, now the internet, is a fabric of lies which have such motives mixed into them more often than not.  Going back and reading earlier critics and the primary documents and their critics they cite is a pretty shocking eye opener.  Journalists, professional scribblers don't do that very often.  Certainly not those with a stake in the established order as it was set up under that usurped power which we have become dangerously habituated to accept as just how things are to be.   In this case, you might attribute that to the idolized "founders" but in this case you would be wrong.  The Taney Court founded this atrocity which the Roberts Court is using for similar ends as theirs.

Intentional Impediments To Eqality Are The Same As They Always Have Been

EQUAL JUSTICE UNDER LAW is the lie over the entrance facade to the hideous Supreme Court building.

It came to me yesterday that the reality is that the rich can hire lawyers aplenty to get away with murder while the poor so often can't even get away with innocence.  If they are People of Color,  not even when they're victims of murder.

Mitch McConnell Proved Many of My Main Points With His Plea To Keep The Criminal Clarence Thomas On The Court Not Long After I Posted It

I AM GOING TO HOLD the next section of Louis Boudin's discussion of the utter and complete corrupt origin of the Supreme Court's usurped power to nullify Congressionally passed laws and to amend the Supreme Court in the Court, not only because I fixed several embarrassing typos I missed in editing but because I'm hoping more people read him laying out how the Court broke its own rules and even the rules of logic to give itself the power to nullify the Missouri Compromise Act - I say hoping to use that power to prevent any subsequent laws that limited or abolished slavery.   

I say what the Roberts Court did in its nullification of the Voting Rights Act is just their beginning to do something like what I think the Taney court majority planned to do, use their usurped power to go farther and farther in their attack on equality and, in fact, democracy.   The Court taking it upon themselves the roles of the Congress, the president and a super-majority of the States was certainly not done for anything good, it is exactly that power which the Roberts Court used to nullify the most significant effort to make good on the promises of the Declaration of Independence and the preamble to the Constitution of the United States, that fact alone proves that is, in fact, the effect of that most vile decision of the Court which has not been entirely or even effectively nullified by the Civil War and amendments to the Constitution by earlier Congresses , presidents and a super-majority of of the States to have something like a more perfect union.

The extraordinary speech that the racist, fascist, court packing Mitch McConnell made in defense of the criminal Clarence Thomas yesterday proves the case that the Supreme Court is, in fact, the foremost vehicle for the corruption of our politics and the worst enemy of democracy among the various branches, EVEN WORSE THAN THE MOST OBVIOUS DANGER, THE EXECUTIVE.   The President has to be elected, even under the abominable Electoral College, the Supreme Court, once in place, is taken out only by death or the decision of the potentate in black robes, themselves.  And, as our recent sad experience has shown, even the best and the wisest of them can disastrously mistime their leaving if their better intentions being protected is their real purpose.  

No, Mitch McConnell wants to protect the corruptly placed Federalist-fascist majority he has created as the Roberts Court because it will do what he can't do while he is in charge of the Senate, it will make law and knock down law to the same evil ends that a Mitch McConnell wants, INCLUDING THE PROMOTION AND PROTECTION OF PRE-CIVIL RIGHTS ERA AMERICAN APARTHEID.   And in Clarence Thomas's twisted, psychopathic mind, he has someone who is a certain servant of the same power that McConnell not only serves, but is also a member of.  

If anything, the case I've been making, building on that of Louis Boudin, is a mild one.   The evils of subsequent courts using the power that the Dred Scott decision created and the sometimes inept attempt of the Warren Court to wield it for the good, are like a roadmap of the corruption that has plagued us, making the promises of that more perfect union providing equal rights and protection from our enemies domestic as well as foreign ring empty.   

It's well past time that we all insist on that promissory note issued in 1776 be made good on, as long as the Supreme Court can keep corrupt money in our politics on the basis of the First Amendment and nullify laws to ensure equality in voting and issuing outrages such as Bush v Gore that paper is worthless. 

For, once you admit that the power exists, there is no limit upon it except the will of those who wield it. And no one who reads the Dred Scott Case can have the hardihood to say that those who wield this power are seriously bound by the true meaning of the Constitution, or of their own powers thereunder.

IN TRYING TO MAKE THIS EASIER on anyone reading this series on the corrupt origin of the Supreme Court invented power for it to nullify duly adopted laws of the Congress and to, in fact, amend the Constitution by a simple majority of the unelected, lifetime appointed members of that Court - usurping the role of the Congress, the president and a super-majority of state legislatures in that five or six or seven or even eight "justices" whim, I've been dreading either posting this entire passage or trying to break it up into smaller bites, so as to make it easier to digest.  But I can't do that because you have to get the whole thing at once to appreciate just how corrupt was and is the Dred Scott decision and its most lasting effect which was never nullified by the Civil War or the subsequent Amendments to the Constitution, for the Court to do what it did so corruptly in the declaration that the Missouri Compromise was unconstitutional. 

The reason that this passage is all important to understanding why this is so important is given by Louis Boudin in the last paragraph I'm posting today so I'll put it first and last.

Thus we come to the conclusion that the very first time when the United States Supreme Court actually used its power to declare a law of Congress unconstitutional in a manner to make a difference to the people of the United States, it did so by a sheer act of usurpation, even according to the official and orthodox theory of judicial review as expounded by its official interpreters.  And this is more than merely an interesting historical fact.  It exhibits the true nature of the power - its dangerous character as a political institution.  For, once you admit that the power exists, there is no limit upon it except the will of those who wield it.  And no one who reads the Dred Scott Case can have the hardihood to say that those who wield this power are seriously bound by the true meaning of the Constitution, or of their own powers thereunder.  It is this that is our excuse for considering this case at such great length.  It is not merely a wrong decision.  It was a revolution. 

When the Roberts Court nullifies one of the most important laws ever passed by the Congress, one which more than one commentator has said is, in fact, the origin of the modern United States as an actual, egalitarian electoral democracy, the Voting Rights Act, resetting the rules in favor of American apartheid, Jim Crow, white supremacy and, as we can expect, a large range if not all of what those made the law of the land, it is certainly a Republican-fascist revolution that may well lead us into the most corrupt period we have yet seen under the United States Constitution which, in fact, including those sacred Civil War Amendments was found by courts and state legislatures, Congresses (especially Senates) to be entirely compatible with all of those evils and many others which the Roberts Court with its six Federalist Society members will, no doubt find linguistic inventions to innovate.  No doubt they will be rubber stamping many of those legal frameworks that come out of neo-fascist legal groups and law faculty members in the coming weeks to years.

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.

In the first place, under the theory of judicial review as laid down by the Supreme Court and re-affirmed by Mr. John W. Davis as the official spokesman of the legal profession, the Court can have no power to declare a law of Congress unconstitutional while in quest of an additional ground in support of a decision which can be rendered without it.  For clearly no litigant stands at the bar of the court crying for additional grounds for the judgement which the court is going to give anyway.  Nobody's rights can possibly be affected by the question whether the decision is correct on one or two grounds.  An additional ground cannot, of course, make any difference in the judgement.  And it is only where it would make a difference in the judgement of that a court has the power to look into the constitutionality of any legislation, under the accepted, official, and orthodox theory of the Judicial Power, as laid down by that Power itself.  There clearly is no necessity for more than one good reason to support any judgment.,

But let us assume for the purpose of the argument that the Court had never discussed the question of citizenship as raised in the plea of abatement.  Or that, having discussed it, it had come to the opposite conclusion, namely, that free Negroes were citizens,  and that the question of Scott's citizenship therefore depended on whether or not he was in fact free.  What then?

The additional ground which the court found in the course of its discussion of the case upon the merits for the dismissal for want of jurisdiction instead of affirmance was the result of the conclusion reached at the end of the case, that Dred Scott was still a slave.  It is this conclusion which is supposed to have justified the consideration of the case upon the merits in question of additional ground for dismissal.  But while it is true that that conclusion required the examination of the question whether or not Dred Scott was a slave, it is not true that it depended upon the declaration of the Missouri Compromise Act unconstitutional.

The lower court had in fact reached the same conclusion without having considered the question of the Missouri Compromise.  And so had Judge Nelson.  And the court must ultimately fall back upon the ground assigned by the court below and adopted by Judge Nelson - in order to save its own decision.

For if the majority of the court had not done so, the decision in the case on the merits would have had to be different - at least as to Dred Scott himself.  But once resort is had to the Missouri law as interpreted by the lower court for determining the plaintiff's status we have our "additional ground" without considering the Missouri Compromise Act even for the purpose of the "additional ground."

And here is where the question of the order in which the points were considered by the court becomes material - indeed, decisive.  As we have already pointed out, the question of the effect of the Missouri law should have been considered, in the natural order of the case, before the Court ever came to the consideration of the effect of Scott's residence at Fort Snelling.  If, therefore, the Court had followed the natural and logical order of the development of the case, it would have obtained the additional ground without ever touching on the question of the Missouri Compromise Act.  It is only by discussion the questions out of the natural and logical order that the Court managed to discuss the Missouri Compromise Act before discussing the effect of the Missouri law upon either Dred Scott or his family.

Furthermore, the logical order of the case was not the only reason why the question of the effect of the Missouri law upon Scott and his family should have been considered first - that was required also by the very judgment which was under consideration.  The first thing that the Supreme Court was called upon to do, after it had determined to consider the case upon the merits, was to consider the question whether the decision of the court below was right.  That naturally brought up the reason assigned for its judgment by the court below.  That reason, as we have seen, was that the Missouri law made Dred Scott and his family slaves upon their return to Missouri, irrespective of the effect of their sojourn in free territory.  The Supreme Court was therefore bound to consider the reason thus assigned before considering anything else in the case.  And having come to the conclusion, as they say they have,  that the Missouri law had the effect claimed of it by the lower court,  Chief Justice Taney and the majority already had in their hands both reasons which they assigned for the dismissal.

And after they had come to that conclusion,  there was not only no necessity to consider the Missouri Compromise Act, but the Missouri Compromise Act and the question of its constitutionality became absolutely immaterial.  There was, then, no possible view in which a consideration of the constitutionality of that Act could affect the case in any shape, form of manner.  

The declaration of the Missouri Compromise Act unconstitutional was therefore clearly a sheer act of usurpation of political power even under the official and orthodox doctrine of judicial review.

Thus we come to the conclusion that the very first time when the United States Supreme Court actually used its power to declare a law of Congress unconstitutional in a manner to make a difference to the people of the United States, it did so by a sheer act of usurpation, even according to the official and orthodox theory of judicial review as expounded by its official interpreters.  And this is more than merely an interesting historical fact.  It exhibits the true nature of the power - its dangerous character as a political institution.  For, once you admit that the power exists, there is no limit upon it except the  will of those who wield it.  And no one who reads the Dred Scott Case can have the hardihood to say that those who wield this power are seriously bound by the true meaning of the Constitution, or of their own powers thereunder.  It is this that is our excuse for considering this case at such great length.  It is not merely a wrong decision.  It was a revolution.

I think it is very likely that if the Taney majority had not had the Civil War result, in no small part, from their decision which they imagined would restore the kind of "national peace and harmony" that they claimed was their goal, they would have used that nullification to prevent any future attempt by Congresses to abolish or even limit slavery, no doubt they would have extended their powers to the extent they could, going ever father because, as Boudin notes, there was no limit to what the Court would do with it. 

As we have seen in the enabling of the corruption of our politics with the First Amendment, the use of other passages and amendments to the Constitution for clearly contradictory purposes, often lying about the actual and clear intent of those whose intent they claim to base their rulings on, that is already the status quo under the Supreme Court using that usurped and invented power found nowhere in the Constitution. 

Somewhat Random Musings After Cleaing Out The Hate Mail File - A Second Sick Day

MAYBE WHEN I'M DONE with Louis Boudin's evisceration of the Supreme Court invented judicial power for the Supreme Court to do everything from overturn laws adopted by the Congress and President to amend the Constitution by a simple majority of fewer than ten unelected, lifetime appointed autocrats who face no real consequences for even their clearest wrongdoing, I'll take on the latter days of Jefferson, Madison and the rest of the founders in their dotage as Jacksonian notions of democracy were taking over what those founders had wrought.  From what I've seen, when faced with something more closely matching their conceptions of the government they were setting up in reality as opposed to their enlightenment imaginings, their aristocratic snobbery didn't like it, one bit.  I assume that's one of the biggest reasons that in his last decade Jemmy Madison soured on democracy and even "liberty."  

That would not be to set up Andrew Jackson as anyone who should be remembered with honor or that his concepts should be emulated any more than those of Jefferson and Madison as demonstrated in their actual exercises of power when they went from on-paper theorizing to actual administration and, in the case of Madison, legislating.   I'm all for learning the cautionary lessons of the past but there is no point in pretending we can or should try to recreate some golden age because there has never been a golden age, neither in reality nor in the concepts of any people no matter how smart they may have been. 

Reading about the passing of the "old court" as represented by John Marshall and Joseph Story to the one dominated by Jackson's appointees in the Taney Court and how the Taney Court used the rulings of the earlier "justices" to extend their power to do some truly terrible things has sparked my curiosity to know more about that era.  

I have come to believe that the Supreme Court has, actually, been the most sordid and corrupt of the branches of the government - it certainly has been since the crisis of Nixon's crime spree, when it has systematically used to rulings of, especially, the Warren Court to keep our political system corrupt with big money and extending that influence to even foreign despots who are some of the worst enemies of democracy today.   The dark-money as "free speech"  horseshit by the Roberts Court should go down along with the crimes of Nixon and other infamous presidents as the worst official acts by any officials in American history, their overturning of the Voting Rights Act added to its overturning of campaign finance reform proves that it is the greatest danger to egalitarian democracy in our history. 

It is one of the stupidest conceits of modernism, of the "enlightenment" that what they do is free us from the shackles of the ignorance and corruption of the past even as they elevate figures such as the slave owners, land speculators and genocidalists such as Jefferson, Madison and, yes, Jackson, and insist that their concepts and ideas and words MUST be what govern us today, going on two centuries after those mere mortals drew their last gasps and rotted.  The heavy hand of "originalism" of "textualism" that are the excuse for the gangsters in black robes for doing all of the evil they have done to us is credulously sucked up by even such fools as believe they are "liberals" or even "left of center" out of misplaced and ignorant piety.    The cult of "the founders" has been promoted, mostly, to further the interests of America's indigenous form of facism, white supremacy.

I was meaning to write something about a passage from Isaiah that was in the lectionary yesterday, a famous passage, Isaiah 65:17,

See, I am creating new heavens and a new earth;  The former things shall not be remembered nor come to mind.

The prophet goes on in terms of a new Jerusalem but I think that can be generalized to describe the ongoing act of Creation, as the present passes into the past and doesn't exist anymore.   Only when we deify the mere humans of the past and make them the measure of our law and our politics the limits of their knowledge and wisdom should never limit us even when we imagine we are to be governed by their intentions.    

I don't trust anyone's good intentions to not risk having the potential to lead us to the kind of hell they were only too willing to live in, especially those who could rig things so that it was least hellish for them on the basis of them making it more hellish for others.  Slavery that Jefferson and Madison and Jackson lived off of was certainly that, as was the genocide and the subjugation of Women and wage slaves and the underclass.   I don't trust anything that produces or enforces inequality and which sets it up as an engine of progress or good because what it does produce is obviously none of that.  The evidence of that comprises our history and our present and is found starving and freezing and dying of exposure all over the place.   Yet dreams of progress blind especially the bestest and brightestest among us, many of whom are "journalists" who miss what's right there in front of their eyes, continually.  And many of whom get published in academic journals and magazines and on the NYT op-ed pages.

The fact that all of those flourished under the Constitution and laws that the 18th and early 19th century legends created and adopted is a warning to us that today, when so many of us are unwilling to live in that kind of a hell, that keeping them unchanged will always risk reproducing that inequality and cementing our feet in it.  That is the goal of the Roberts Court, that they have made the Warren Courts' decisions intended to do something else to that purpose only proves the dangers of allowing them to get away with being able to amend earlier decisions of the court, exploiting the oversights and foolishness inherent to them as easily as they do the Constitution, even the Civil War Amendments, for the purposes of their patrons and their class and their own, white-supremacist ideology.  

I think the idolatry of worshiping the secular, civic past is the kind of idolatry that is incompatible with the monotheism of the Jewish tradition and especially of Christianity.  Entirely incompatible with it.   I think the Jewish scriptures, their catalog of the sins and folly of the kings of Israel and Judah and other assorted gentile rulers, are far superior to the popular history such as most Americans believe in, most of that coming from trash like the movies and TV and even the better end of that PBS style historical documentary.   At least when you take it as a warning about the evils of the past and what isn't to be done. 

Any "Christianity" that indulges in it is heretical and idolatrous.  I think we are to learn what not to do from the past whereas most founders fetishists think that we are to learn what we must continue to do with the insane idea that if we did as they wanted we'd get something other than what they produced.  Which is total lunacy.

Who The Hell Cares?

I do not care about what happened at the Oscars, I don't care about the movies.  I don't care about the publicity stunts of those in show biz, which the slap was.   I don't care about the Grammys or any other awards BS.  It might be understandable that those in the scribbling classes do because no other industry awards itself more than than "journalism," except, possibly the flicker pictures.  Then they report on the awards they give each other.  I wonder if there's an award category for reporting on the awards that they give each other for their "journalism." 

DON'T KNOW IF what I've got is that new Covid strain or not but it really knocked me down today.   I hope to be back and writing something outrageous tomorrow.

The Limits Of Human Justice And Our Conception Of Deserving And Undeserving Are Bound Up With Our Material Existence and Scarcity Economics , God's Mercy Is Not Contained Within Our Limits

THIS PASSAGE from Mary McGlone's weekly commentary on the Sunday lectionary readings really struck me:

What’s the message of the story of the prodigal son? Is it repentance? If so, we would have to admit that the young man’s repentance was motivated almost entirely by his own self-interest. He was dying to eat pig slop. Just about anything would look better than that! Such repentance sets a pretty low bar.

Is it forgiveness? The father never said a word about forgiveness or absolution or “I’m glad you learned your lesson.” Even when the older brother whined, the father said nothing to excuse the younger one’s behavior. He simply pointed out that everything he had belonged to the elder as well.

And he threw a party.

During ordinary time, the first reading and Gospel are related while the second reading gives us a continuous look at New Testament letters. In the seasons of Advent, Christmas, Lent and Easter, the three readings work together to draw us into the mystery of the day. Therefore, to know what the liturgy wants us to take from this Gospel, we can find clues in the other two readings and the psalm.

Mercy is bigger than forgiveness and forgiveness is bigger than the judicial concept of justice, sometimes both involve things that seem outrageously unjust to us, as the dutiful son's understandable anger at his jerk of a brother being taken back and given a welcome home party while he's hard at work and no one asked him what he thought about it.   That would seem to be the message behind this parable which isn't exactly announced as being how the Kingdom of God will be but I think given the general goal of the parables, we could be forgiven for taking that unannounced message from it. 

It struck me, reading this analysis of the parable how everything in our human understanding of repentance, forgiveness, and everything we can conceive of is tied to and tied down to our experience of the limits of material resources and the artificial categories of ownership and possession and thrift and waste.  The story is all about the younger son asking his father for his eventual share in his material wealth and his squandering of it and, when he's hit bottom, him going back home to work as a servant because his father treats his servants better than he's going to be treated in the place he squandered his inheritance on.  But the father takes him back as a son, not as a servant and is overjoyed that he's returned to his family.  He doesn't make demands, as Mary McGlone points out, the brat doesn't even express repentance or even having really learned his lesson.  That wouldn't seem to be the theme of the story which Jesus tells in response to the religious hard-asses condemning him, “This man welcomes sinners and eats with them.” 

They were accusing him of having cooties because of the company he kept.  Something religious law seems to be continually in danger of becoming in application, the civil law, lower to start with, is often even worse in that regard. 

What I got from reading this fresh take on the story was that the forgiveness of God is bound to surpass any of our understanding of forgiveness which is bound up with material wealth and resources, their "ownership" and the kind of  justice we imagine in our human concerns with material wealth and "ownership" and who we are bound in "justice" to pass it on to or give it to.  We are clued into the father in the story being a generous man because the prodigal, profligate son knows that he treats his servants better than the government and societal  power he's placed himself under in a foreign land (the pig herding is a sure clue that it's among gentiles) will treat him - which is, in fact, the way poor people are generally treated under secular and too many allegedly Christian laws and practices right now, right here in the United States under our current Constitutional regime and elsewhere.

It shouldn't be a surprise to us if God's mercy surpasses our conceptions of justice and what's due to those with a "just" ownership over the material goods of even their father EVEN WHEN THOSE WHO FEEL WRONGED HAVE, IN FACT KEPT FAITH WITH THEIR FATHER as their profligate brother was clearly in the wrong.  But I suspect our understanding of that will have to wait until we aren't bound by the bonds of our thinking, conditioned as that is by material resources and possessions and the kind of human "justice" we imagine in terms of human terms of just desserts.  It surpasses our understanding. 

McGlone's take and her title, The God of Parties,  reminds me of Sr. Elizabeth A. Johnson's Chapter in The Quest For The Living God, The God of Fiesta.