“That is the problem of many today who claim to be traditionalists. They are not traditionalists, they are backwardists. Tradition is the root of inspiration in order to go forward in the church."
Pope Francis yesterday.
Works for so many things, "originalists," "textualists," etc.
LISTENING TO THE INTERVIEW with Walter Brueggemann again to get that excerpt used here the other day, I noticed so much in it that I'm sure I didn't get when I first listened to it several years back. One of the things he pointed out was how the historical-critical method of dealing with scripture trying to pin down what's left of "authenticity" once they've dissected it and figured out "who" wrote what lines and even parts of lines as well as the fideistic practice of the "evangelical" churches missed an important fact about the scripture, that it's not so much a denotative text in which set meanings are set out as in academic discourse, it is an artistic literature that is so rich in content, often dealing with things that it's impossible to grasp in that way and pin down. It's poetry which not only has different goals but is at such a different way to use language which demands expansion in the thoughts and minds of those who hear and read it.
Poetry, at least good poetry, does that. It presents images and implications that must be understood through the evocation of the life experience and understanding of its readers in ways that are more demanding than the same background to expository writing and even scientific and mathematical description. Far from being slight and airy-fairy, good poetry is far more demanding of the readers and listeners. The idea that the standards, practices and methods of science and the academic pretense that other, less focused and reductionist topics of study can practice those to come to the same kind of fixed, limited, reliable knowledge are more rigorous than poetry strikes me as being a financial issue, that those topics can get you wealth while poetry will get you a life. As I had to tell many people, compared to playing Beethoven, calculus is easy. Which is relevant to what is said in the interview. And the Bible is a lot harder than Beethoven.
The sometimes heard snark of sci-guys like Sagan or Krauss or the pseudo-sci guys like Pinker ask why there isn't any scientific knowledge in the Bible, ignoring or forgetting that there is, actually, content which scientists get really pissed off about when science mirrors it. Such as the one that's often brought up, the Big Bang and the materialist-atheist-scientistic rejection of that science until they couldn't and, in some cases, even after that. But the fact is that's not what those who came up with the individual books were focused on.
You may as well reject any other academic field that doesn't give you an answer to basic physics or astronomy texts. When the author(s) of the first eleven or so verses in Genesis came up with that, they weren't doing physics, they weren't publishing a description of the physics of the it, they were telling us something about Creation, that it was good, later, that People's use of and experience of what's wrong with it it came from us, not from Creation and God. Mixed into that poetic imagery was stuff we don't find especially useful for understanding, the talking snake, but that's poetry for you. There's junk in Lucretius that's not especially useful to modern consideration and there's really no more science in it, just as there isn't in much of the ancient lit that is more congenial to post-WWII sci-guy atheists and religion haters but you never hear them challenge that. Heck, there are masses of late 18th-19th century romantic and racist crap in much of the scientific literature and they haven't done much to get rid of that. Even when it has gotten millions of People killed. Especially within biology and its allied sciences and the pseudo-sciences that latched onto it such as psychology.
I may get round to expanding on that because I'm toying with the idea of going through that interview in my typical way because that's only one of the issues that is worth going through for a week or a month in it. Though many others online would be as good I think the back and forth between the two hosts and Walter Brueggemann adds to the long informed observations of Brueggemann in a way that supplements even his excellent sermons and lectures which I've found so important.
Kenny Clarke And His 52nd Street Boys: Kenny Dorham, Fats Navarro (trumpet) Sonny Stitt (alto saxophone) Ray Abrams (tenor saxophone) Eddie DeVerteuil (baritone saxophone) Bud Powell (piano) John Collins (guitar) Al Hall (bass) Kenny Clarke (drums) NYC, September 5, 1946
It's a long time since I posted some music, I was thinking about this piece by a too much forgotten composer.
IN THE CRITICISM of Pope Francis for having a great honor done to him, of him having a head-dress given him by a Chief Wilton Littlechild and placing it on his head, some of the inevitable controversy of him making a remarkable penitential trip to Canada to first meet and directly apologize to First Nations People for the Catholic Church's part in the often horrible residential school system set up by the Canadian Government was intensified. I think quite unfairly.
Chief Wilton Littlechild, a residential school survivor himself, gave Francis the headdress Monday, placing it on his head amid cheering by an audience in Maskwacis, Alberta, that included many school survivors.
The Vatican and the pope clearly appreciated the gesture: Francis kissed Littlechild's hands after receiving the headdress, something he has done in the past as a sign of respect for Holocaust survivors, and has done on this trip for residential school survivors.
I haven't watched much of the trip, though the ceremonies on his landing in which the governmental leaders of Canada came after him first meeting and talking with First Nations leaders and elders was just as it should have been. This is a trip for them, for Pope Francis to issue an apology and more. If it had merely been for the purpose of issuing an apology instead of actually changing things, it probably would have been a useless exercise. I think he has tried to do that and may well have done more than that, though time will tell what changes in reality in the lives of First Nations People.
But this is about the controversy over the gift and its acceptance on the terms of those who gave it.
What was Pope Francis to do? Refuse the honor? Refuse to have it placed on his head by a man who, from what I have read by people who should understand the situation better than I do, went through the traditional leadership of his Nation to bestow an honor on Pope Francis? No doubt, if he'd done either it would have a. been the cause of deep hurt to People who it clearly meant a lot to to give him the honor, b. been taken as an insult to everyone, including those who are slamming him now. I am certain that insult would be being complained of right now by many of the very same People who are upset that he accepted an honor he apparently didn't ask for. If that's right what they say they preferred would have been instantly transformed into an insult for not accepting it.
I don't know how far in advance Pope Francis knew he was going to be given the gift full of such meaning and potentially so controversial. If, as I guess, he didn't know until it was offered to him, that it was a surprise gift, the greatest hurt would have been in summarily refusing it or refusing to have it placed on him. He must have known or sensed that it was a situation that called for him to be passive and to accept the honor with humility and grace. From what I saw of the footage of the event, he handled it as well as anyone could possibly have been expected to. I think those who gave it to him have every right to feel good about what they did for the reasons THEY determined. Pope Francis is not Calvin Coolidge, he has repeatedly gone farther than any previous Pope in insisting on justice for First Nations People, Native People of the New World, Africa, etc. To blame him for what happened before is as inaccurate as it is unfair. He can apologize on behalf of the Church he leads as the Head of State or Prime Minister of Canada can on behalf of those entities, that's something far different from incurring personal culpability for what was done, much of it before he was born.
The whole thing reminds me of the Catholic reactionaries and fascists going into a swivet about the Amazonian Synod held at the Vatican and the erection of Pachamama statues, deeply meaningful symbols to that cultural tradition which were vandalized and destroyed by those who despise Francis and equal justice. I think in that Francis, probably knowingly, made himself open to those who he could count on to criticize and attack him to accommodate the People on whose behalf the synod was held. I don't know of any previous Pope who has gone so far in that direction to prove his profound respect.
Such an outsider as I am certainly has no legitimate point of view in the whole thing EXCEPT, POSSIBLY TO HONOR THE GOOD INTENTIONS OF THOSE WHO GAVE HIM THE HONOR. I do not know how such a decision as to bestow the honor and, I'd guess, symbol of moral responsibility on the part of Pope Francis, becomes the business of anyone EXCEPT THOSE WHO DECIDED WHETHER OR NOT TO BESTOW THE HONOR. If other People from other Nations were offended by it, I'd first like to know what business it is of theirs to take offense at the decision of People certainly qualified to make that decision. Their decision was due the same respect as the decision of others in other Nations to not do that. Or so it would seem to me. For outsiders to second-guess their decision seems to me to be as disrespectful as anything involved in the controversy.
The dishonor to the People who gave the gift bothers me as much as the criticism of Pope Francis.
A spokeswoman for Littlechild didn't immediately respond Tuesday to a message seeking comment.
But Keeshon Littlechild used a Facebook post to defend his grandfather for giving Francis one of his own many headdresses.
"Bugs me to see people bashing my grandfather and I understand how much respect is needed to be gifted one but at the end of the day that was him showing the pope respect for coming all the way to maskwacis to apologize," he wrote.
Among those coming to Littlechild's defense was Phil Fontaine, a former Assembly of First Nations chief and a residential school survivor.
"Chief Littlechild followed his protocols," Fontaine said. "There is a protocol for that kind of gift. He went to the elders, he went to the leadership and requested permission to present that gift. It is entirely consistent with the way they follow their customs and protocol here."
I really would like an explanation of those critics of those who bestowed the honor or Pope Francis for accepting an honor given him by others to explain how they would have avoided anyone doing something that caused anyone to be offended, or to express offense, if he a. accepted the honor or, b. turned it down.
You have to ask any of the critics of this who may have demanded such a trip be made, just what good would you want to come out of such a trip, and what could be done and would have been enough to satisfy them.
The problems with this repeatedly requested and even demanded penetiential visit to Canada were certainly obvious in that large numbers of People would never be satisfied no matter what Pope Francis did. He could have taken the coward's way out, typical of lesser world leaders and clerics, and refused to do anything, letting the issue of the profound apology he has given lapse and be an ever cooling issue of the future. I am certain that he knew a trip of this kind would be the focus of criticism, whenever there are people looking for political advantage in something like this, there is no way to avoid that because, as this shows, such opportunities will always be advantageously used. And even among People of good will, there will always be those for whom even the most sincere and actually productive acts and statements will never satisfy them.
The People who decided to give the honor and gift to Pope Francis deserved to have their decision respected, above all, something that Pope Francis did. I think that his part in it was gracious, even humble as receiving a gift should be, especially in such a context. And as he must have been aware that it, like everything he does, will be made hay of one way or another. Accepting an honor from People who desire to give you one is an act of respect, in a way, a gift back to those who give it SHOWING YOU HONOR AND RESPECT THEM. Third parties may have their opinions on that giving and reception but they are third-parties to it. Their non-participation is their decision, their disapproval of it is their decision too.
When his election as Pope was announced the lefty blogs c. 2013, exploded with rumors from what I assumed were Marxists that as Archbishop he had been in some ways complicit with the military junta that the United States backed, one which murdered many thousands of People. As I was already pretty tired of Marxists by that time, I thought they were a bunch of jerks. I also thought that after the two dreadful papacies of John Paul II and Benedict XVI, from the second his name was announced, to his appearnace in a plain white robe instead of the scarlet velvet and ermine that had been prepared for him, to his asking People in his dioces to pray for him and kiss their children for him, it was like morning was coming back.
Also, as soon as his chosen name was announced, many of the same people refused to believe he was taking the name of Francis of Assisi, saying he must mean a less saintly and popular saint. Francis Xavier, Francis de Sales. I had to break it to them that when a Catholic says St. Francis without any other name, they could only ever mean St. Francis.
One of the more surprising and apt descriptions I've ever heard of Pope Francis, the most pastorally able, or,, rather caring Pope since the atypically pastoral Good Pope John XXIII was when David Bentley Hart, an Orthodox believer, described him as "a tough guy" saying that as an Argentinian going through the late 20th century, he would have had to be. Of course, that's right. I think the mixture of graciousness and toughness, seeing where the hits are going to come and knowing those always will, his decision to honor those who honored him and take the hits was the right one.
He handled it like a great statesman pastor would have, I think the feelings of those who gave him the honor take precedence over those not involved, certainly over however I would feel about it. I hope they are not too hurt by the critics whose involvement is tangential, at best.
If you are wondering how much longer this series is going to last, I'm ending here on page 27 of 34 pages, so a few days more. If I could manage it, right now, I'd have gone on with the book and there would be hundreds of pages, no doubt the ninety-one years since Boudin turned this outline into a massive book would furnish even more on the subject.
A lot of, especially, liberals will fret about the fate of much of the civil rights decisions made by the Warren and even Burger Courts and details of other decisions important to the pursit of equality by nullifying state laws that codified segregation, American apartheid and other, such terrors of the past. My answer to that is that those prior decisions are already lost in the Roberts-Alito, Republican-fascist Court, now lost by ruling or shadow-docket de facto rulings and what few remain, in tatters, are best considered gone, too. The Roberts-Alito Court are in the process of annulling anything good that happened in the 20th century, they'll probably get around to annulling anything positive done subsequently or previously, as well. They are on track to be the worst Court since Taney and may find ways to outdo that rightly villified Court.
Since the quotes against government by judiciary in this article argue against the dangers of what was used by previous Courts to explain some of their most important equality and civil rights rulings, I need to go into that at length before giving them. Those rulings, rulings based on things and words not explicitly found in the letter of the Constution but which the subsequent decades and centuries proved were absolutely required for any kind of decent government and life in the United States, a right to privacy certainly one of the most important which is central to issues of such "national emergency" as the outlawing of safe abortion. Something which I would argue was rationally considered so basic to a sense of deceny and honor by the short-sighted founders, that they took it for granted.
And it is an emergency. NEVER should the recent overturning of Roe be separated from the absolute fact that by outlawing safe, medically administered abortion, they have guaranteed a horrific reality that its replacement is not no-abortions but deadly and dangerous ones as well as deadly and dangerous pregnancies as well as those that no sense of justice nor reasoning would allow any person of any moral sense to insist must never be terminated,
- the 10-year-old rape victim from Ohio who Republican-fascists have lied about,
- the woman whose water broke early in a pregnancy with its state legislature producing horrors,
- the state-mandaited contuned ectopic prgancies other impossible to bring to term pregnancies were required to be continuee UNTIL THE WOMEN'S HEALTH AND LIVES WERE COMPROMISED and, certainly through prosecutors ideological campaigns of political and professional self-promotion, even those which would certainly be fatal will be prosecuted in some states.
- and untold other horrors.
That is the reality of what the Roberts-Alito Court did in league with Republican-fascist legislatures, what courts before Roe v. Wade and legislatures dominated by and often exclusively made up of men determined was permitted under the Constitution, decade after decade, generation after generation of maimed, terrorized, dead women under the regime of illegal abortion, which I never remember many later anti-abortion folk doing much of anything to end as it was an epidemic.
Never should it be minimized how little men will notice an emergency that Women experience, or white people will notice an emergency among People of Color, or rich people will notice among the destitute, the poor or even the middle-class. Such an emergency went on in the United States for generations, in full horror before Roe v. Wade was decided. There is nothing to prevent that national non-feasance to not happen again except direct action by those affected by the emergency. Amy Coney Barrett and Clarence Thomas are as uncaring and unmoved by the consequences for People of Color and, especially in the case of both of them, Women, as Alito or Gorsuch or Kavanaugh, or Roberts. Economic class may explain that, the rich will always be able to get safe abortions without danger of prosecution, no matter what the law says.
The issue of the imperfections of the Constitution (to use an entirely inadequate word) things included in it and not included in it and the virtual impossibility to amend it for acheiveing the most obvious ends of common equal justice - WE CAN'T EVEN GET THE EQUAL RIGHTS AMENDMENT IN IT, FOR PETE'S SAKE! - is behind all of this. The impossible, cumbersome and, with the permission of the media to lie with impunity, billionaire and millionaire funded lie campaigns, means of amending the Constitution in a 50 state, as opposed to a 13 state nation is another of the problems that has led to exactly what "Mr. Justice Knox" warned of in the extract I used as a title.
The basic and drastic amendment of the Constitution is needed in so many areas that the maintenance of the thing as an object of worshipful veneration which one is prohibited to question in ways that NO religious text or object is venerated, is not sustainable. Changing it cannot be put off to later ages or the very thing lauded as providing for our safety, our freedom, our security will be our undoing.
I think it already is that as the Roberts-Alito Court, Republican-fascist Senatorial manipulation of process, first the Bush II regime then the Trump one are foisted on us by both the Electoral College - with some help from the likes of James Comey and the corporate media- and by the fiat of five "justices" such as those in Bush v. Gore. The thing is thoroughly gamed but it is still an object of unquestionable veneration, as is the extra-Constitutional power which judges and "justices" gave themselves without any legislature of the last decades of the 18th century or any since ratifying.
There is no such thing as a perfect human creation. There is no such thing as the best human creation which cannot be corrupted in use and with the inevitable amendments of time, generations and the accretions of habits of thought and action and the commentary on the original that is the bread and butter of judges and "justices" and law scholars. No two-hundred or even hundred year old constitution is going to escape that anymore than any of the ancient systems of government or law did. If The Law of Moses could degenerate into the latter day corruption of the Kings of Israel and Judea, so will any.
The United States Constitution, whatever the foresight of those who wrote it may have been, encodes the near impossibility of taking that into account. Jefferson, of whom I have been so critical in many things, especially in regard to slavery, got it right when he said Constitutions should be redone every few decades. I don't take that idea lightly, the writing of constitutions and laws is full to the top of dangers, that is as true for such supreme laws as constitutions are supposed to be as it is for any statute passed by a town council or state legislature or the Congress OR BY POPULAR VOTE. Benjamin Franklin's statement about keeping a republic was as prescient as Jefferson's and far more to the point. If we do not follow the commandment of equality on which any valid modern concept of democracy must rest, to do to others as we would have them to do us, it all rots out. I would point out that that notion appears nowhere in the Constitution, in fact if it were explicitly held to be the basis of law, clauses in it would be held up in objection by those who habitually hate Abrahamic monotheism and all religion as by those who hate equal justice. I think some of the most popular of Supreme Court rulings have helped those who hate equal justice a lot more than those who do believe that that absolute standard of justice is an absolute law. All pretenses of the civil liberties industry aside.
We are in the national emergencies such foresighted judges and some of our greatest presidents could see coming with that power of Supreme Courts but not only from that.
IV
A change no less striking has taken place, since the power of the courts to annul legislation has been more freely exercised and has come to be generally recognized, in the attitude of our judges and in the opinions of our public men as regards the question: How far shall this power extend? Even after the decision in the Dred Scott case the existence of this power was not admitted by our leading statesmen except in a very limited sense. Lincoln denied its binding force in our modern sense, that is, as a rule of political conduct. And even those who admitted it as a rule of political conduct did not by any means, until very recent times, give it the broad scope which it now possesses. The older and more conservative point of view is clearly stated in the opinions of the very judges who asserted and used this power at its earlier stages of development.
I noted yesterday how we have been habituated to this kind of thing to the extent that even those informed of the problems with it will have a very hard time imagining the law or politics without that Supreme Court power hanging over it or seen as the limiting factor. I am sure that often it is seen or, rather, felt as a limiting factor when legislation is drafted. The "codification of Roe" that is so breezily talked about is no guarantee that the Roberts-Alito Court or one further ratfucked by Republican-fascists in the Senate and the Federalist fascist Society will let such a codification stand, no doubt Alito's clerks will dig up some other spectral-evidence relying 17th century English judge to base such an overturning on.
Judge Iredell was one of the first members of the United States Supreme Court to claim this power. He advocated it even before the adoption of the federal Constitution; for he was leading counsel in the case of Bayard v. Singleton, noticed above, on the side which urged the right of the North Carolina state court to declare unconstitutional the state law at that time under review. As an associate justice of United States Supreme Court he asserted this power before the decision in Marbury v. Madison, as we have seen in our examination of the case of Calder v. Bull. We have also seen that he regarded this power as of an "awful nature," never to be resorted to except in a clear and urgent case. A further examination of his opinion will show that he considered the power to be limited to those cases in which the legislative enactment violated the very letter of an express prohibition of the Constitution. He emphatically repudiated, as we have seen, the theory that an act passed by Congress or by a state legislature, within the general scope of its constitutional power, could be pronounced to be void merely because it was deemed by the court to be contrary to the principles of natural justice. He based this conclusion on the assumption that each and every legislature was "possessed of an equal right of opinion" with any court as to what the principles of natural justice were. The hundred-odd years which have passed since Justice Iredell wrote this opinion have certainly wrought havoc with his antiquated ideas regarding the competence of legislatures and the functions of courts.
You have to wonder what Iredell and the others quoted in this article would say if they could foresee the use by subsequent "justices" of the power they claimed was necessary in the most dire of circumstances. The extent to which, given the possibility of a legislature doing bad things, judges such as Iredell believed that any more trust could be put in judges and "justices" to do the right thing being behind this notion of this government by judiciary should be considered. Sometimes that faith will be better based than others, I would certainly put it in the courts than in state legislatures in the Trump election-stealing cases, but there are others when I certainly wouldn't trust them. I will point out in regard to that, that the elections laws making a vote in the Congress based on the majority of any states delegations producing one vote to solve the puzzle of the failed Electoral College was one of the worst ideas anyone ever had. For anyone who puts their faith in the genius of the "founders" their anti-democratic inclusion of the Electoral College, with its dangerously bizarre and so disastrously ammended features is absolute proof that they put their breeches on one foot at a time, just like we do today.
More than half a century later, at a time when the judicial power had firmly established itself and on the eve of its great coup in the Dred Scott case, the utterances of the courts regarding the limitations upon their authority remained the same. In 1853 the judges of the Pennsylvania supreme court wrote a series of notable opinions on this subject, in the case of Sharpless v. The Mayor. The leading opinion was written by Chief Justice Jermiah S. Black, one of the greatest constitutional lawyers of his generation, and soon afterwards successively attorney-general and secretary of state of the United States. The decision rendered in this case and the opinions upon which it is based are very interesting reading. They give much food for thought to the constitutional lawyer of to-day and to the student of our existing political institutions. Among the points decided in that case are the following:
"In determining whether an act of the legislature is constitutional or not, we must look to the body of the constitution itself for reasons. The general principles of justice, liberty and right, not contained or expressed in that instrument, are no proper elements of a judicial decision upon it.
If such an act be within the general grant of legislative power, that is, if it be in its character and essence a law, and if it be not forbidden, expressly or impliedly, either by the state or federal constitution, it is valid.
To make it void, it must be clearly not an exercise of legislative authority, or else be forbidden so plainly, as to leave the case free from all doubt."
In their opinions the judges specifically state that by "forbidden expressly or impliedly": they mean just what they say: that there must be something in the Constitution, state or federal, which shows plainly, so as to leave no room for any doubt, that the Constitution intends to forbid just such a law as that under consideration, and that such general prohibitions as that "no person shall be deprived of life, liberty or property without due process of law" do not furnish a sufficient basis for declaring a legislative act unconstitutional, unless, indeed, the act be such as cannot be properly called a law or an act of legislation at all. . .
I have to wonder if the Pennsylvania "justices" may have had some inkling of the direction that legal thinking was going in regard to the massive expansion of Supreme Court power which was coming a few years later with such disastrous results. I would like to know the pre-Dred Scott scholastic scribbling that might have been going on just as so many of the horrors of the Roberts-Alito Court were the wet-dreams of millionaire and billionaire financed, oligarch-friendly law school scholars and scribblers. But I am neither competent nor at leisure to make such a document search. I have pointed out above that the very certain defects, deficiencies and distortions of the United States Constitution mean that even the modest dependence on the words of it by even previous "justices" to reign in court power can be used, as certainly, by "justices" for the most malignant of purposes, such as Alito in the overturning of Roe. I don't think that us depending on either the written text nor on the "penumbras" of meaning flowing from them is fool-proof in the long run. Look at how the segregationists and white supremacists use the words of The Reverend Martin Luther King jr. to oppose equality and things such as affirmative action which he championed. Dishonest judges and "justices" like all dishonest people can do the most remarkable things with words and even ideas to turn them on their heads. Such is the stuff of Supreme Court decisions.
. . . Chief Justice Black said, in his opinion:
"We are urged to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this.
. . . I am thoroughly convinced that the words of the constitution furnish the only test to determine the validity of a statute, and that all arguments based on general principles outside of the constitution must be addressed to the people, and not to us. A proposition which results so plainly as this does, from the reason of the thing, can scarcely need the aid of authority . . . . But, if the doctrine I am denying could be allowed to prevail, it would decide this case in favor of the plaintiffs without looking into the constitution at all; for it must be admitted that such measures cannot be sustained on principles of moral justice or propriety . . . There is another rule which must govern us in cases like this; namely, that we can declare an act of Assembly void only when it violates the constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds."
And Mr. Justice Knox, in a concurring opinion said:
"The presumption is that the legislature has judged correctly of its own constitutional power and the contrary must be clearly demonstrated before a coordinate branch of the government can be called upon to interfere between the people and their immediate representatives.
In ascertaining whether there has been this clear usurpation by the law-making power, I agree with the Chief Justice and Mr. Justice Woodward, that the tests to be applied are: 1. Is the act in the nature of a legislative power? 2. Does the Constitution expressly, or by necessary implication, forbid the exercise of such a power? . . .
I am aware that under this rule acts may be passed which will, in the minds of may persons, be contrary to natural justice, and subversive of the just rights of the people. The remedy is to be found in further constitutional restrictions upon legislation, not in restraints imposed by the judiciary. The limit of the power of the people's representatives should be written upon the pages of the constitution, rather than remain in the breasts of our judges.
There is great danger in recognizing the existence of a power in the judiciary to annul legislative action, without some fixed rule by which such power is to be measured. Our opinions are so diversified and varied, that what to one mind may seem clearly right and proper, to another will appear to be fraught with imminent danger. If we have not a certain standard by which to test the constitutionality of legislative enactments, if each judge is to be governed by his own convictions of what is right or otherwise, I fear that restraints upon judicial, rather than upon legislative action, will be demanded by the people, ever jealous of the accumulation of power in the hands of a few."
As subsequent history proved, that power in the hands of fewer than ten unelected, lifetime power-holding "justices" has been fraught with danger and the potential of them doing enormous injustice. That on rare occasions, it may have produced some good can't reliably make up for that danger. Yet nothing is done under the Constitution to reign them in. As I said, it will take a democratic, egalitarian President and Congress to do that, I cannot foresee a future Court abandoning that self-created power nor would I depend on the amendment process to be so un-rigged and so-ungamed in the Republican-fascist dominated states to do such a vitally important thing. And even then it will be very dangerous because a future Trump and Republican-fascist, or similar, regime could use that,too. If a future Constitution could do it, other countries seem to have managed to avoid it when we have not.
ONE OF THE THINGS that I got from the influence of Walter Brueggemann was in loosening the blinders through which even, having been brought up as a Catholic with a quite non-literalist view of Scripture, I had managed to use in thinking about Scripture. Ironically, in the way that is generally taken, some of the most cumbersome of those blinders came from the historical-critical practices that dominate in modern educated practice instead of those of "evangelicalism" and fundamentalism.
"The problem is it (Scripture) is filled with contradiction. The contradictions simply resist finding a formulation that can account for everything. So it requires us to . . . in some ways hold it loosely. By which I do not mean not to take it seriously. But to take it seriously without imagining that it is going to deliver a package of certitudes for us. And that's what I want to resist, whether it is the rationalist certitudes of progressives or whether it is the fideistic certitude of more evangelical People."
That's what he said in an excellent discussion he got into a few years ago and that was one of the revelatory things I got, one which opened up Scripture to me in a way that all of the previous decades of my life didn't.
One of the lines in the interview noted that the "originalist" reading of the text of the Constitution by Antonin Scalia, oddly, never seemed to result in Scalia "finding" in the text of the Constitution something he didn't already think. I think that's more often true of not in the game of such critical gaming of texts, whether or not it's admitted. To tie this in with the series I'm engaged in.
It not only made what I believed was clearer to me more meaningful, it also shielded the value of that from those parts of the Bible which are far more problematic and are likely not at all prescriptions of how we are to live but are either a confession on the part of The Children of Israel for their shortcomings and evil acts (large stretches of the Bible is a confession of that sort as progress toward contrition and change, one of the most impressive acts of moral character in any literature I'm aware of) or self-questioning on the way. Even some of the most mistakenly permissive of claims, such as the command to slaughter the Canaanites, are a prelude to a description of the disasters they led to, in the legends of Joshua and the Book of Judges, leading to the mixed bag of them demanding a king, as in the disaster when such stuff was taken as an excuse for the invasion, genocide and conquest of the Americas. Atheists, mockers of revealed religion just can't deal with that, that you can have that kind of loose holding of Scripture which is full of contradictions, that you don't have to believe that God told Joshua to kill all of the Canaanites just because some (likely far later) scribes finally wrote down stories that were probably already heavily edited and amended and exaggerated through the oral tradition. As an example of that, I would bet you someone else would transcribe the recording of Walter Brueggemann attempted above differently than I did. I would bet he, if he wrote it out, would do it somewhat differently, perhaps changing some of it because he'd think of a better way of saying just what he meant. We are so enslaved by the printed or recorded word.*
His magnificently informed view of Scripture as, among other things, being a group-artistic work, in which there is no one auteur in even most parts of it in which the real meanings and values of it are frequently more a matter of implication and inconclusive questioning and urging instead of fixed "truths." And, in fact, there are many hands in producing what comes down to us as the texts, some commenting and extending the oldest poetic expressions and so mixed into the older text and there is no real way to find out which is which with complete or even good specificity. But which, in the end, we are to find contains instruction of how to conduct our lives. That some of those texts give some clear, universal, absolute commandments, treat others as you would be treated, tell the truth, don't kill, don't steal, don't deprive people of the product of their labor, the right to liberal provision for the poor, in other words, don't be stingy with what you have, etc.
And that insight has been extremely useful to me as I took up a book this week that I had read decades ago, Black Elk Speaks, reading the newer prefaces mentioning later "critical" editions of the book critical of the poet John G. Neihardt who edited the stenography of his daughter, the one who recorded the words of the translator, translating Black Elk and his friends and companions, comparing the original stenography with the published text in a manner not that much different from the historical-critical method of dealing with the Bible.
That there was no direct recording of the words of Black Elk, as he gave them in his own language is obvious, that there is not an absolute and direct recording of the words of the translator in the stenographic record in English is not questionable, that those facts were known to Black Elk and his friends and companions as they sat giving their prophesy and memory is obvious, as obvious as it must have been to those who copied, commented on, expanded on the words of the Prophets, those who took down the memories of the companions of Jesus, Paul, etc. as they did what they did. I don't expect to find something like a Cecil B. DeMille-Hollywood-etc. script view of even the most explicitly absolutist statements (Hollywood distortions) of Abraham faith from Black Elk Speaks, I expect to find translated poetry - for crying out loud, even the visions of the great mystic Saint Black Elk are told in symbolic images and experiences, not something that will satisfy the pretenses of a modern, academic scholar. Writing this, I think of the poetic visions of Julian of Norwich or other saints.
I doubt that I'd get so much out of my re-reading of something I'd not really appreciated when I was a lot younger and fully acculturated in historical-critical framing unless I'd read and heard so much of Walter Brueggemann on Scripture. Since what I find valuable in Hans Kung is so reliant on the text of, especially, the New Testament, I couldn't possibly find that as valuable as I have without the loosening of those blinders mentioned above. I think I'd have to place the Protestant Brueggemann ahead of even my favorite Catholic theologians in a listing, though, as I mentioned, the same was something I had aphoristically instead of expanded at great length from Abraham Joshua Heschel's observation about the written text of Scripture being a commentary on the real thing which was not a text, as such.
There is a movement among Catholics to canonize Black Elk which I think would be a good thing. I believe he was divinely inspired in his prophesy, I am impressed with what I'm learning about his life - he, as part of the widely misunderstood Ghost-Dance movement joined the Catholic Church and was a devoted and articulate lay-worker while remaining a great Holy Man of his tradition. I am astonished by what I've recently learned about that movement which I'd only known about distorted through white-academic claims about it made in the past and I have to say, I find it as convincing a series of prophecies as I do any other part of Scripture. I find him a far more credible saint than many of those recently canonized with far more dubious lives, some which I find more appalling than heroic. Some of those recently canonized, Popes and other members of the clergy and religious, though some of them I think were admirable, too. It's hard to be a convincing saint while holding worldly power of that kind.
Loosening that kind of thing in good will doesn't, in my experience, lead to dispersal or erasure of revealed religion, it expands it. But the good will has to be there to start with or it will dissolve any kind of morality. I have no faith in anything that doesn't hold with loving God and loving others as you love yourself. I doubt anything that doesn't hold those first can get anywhere good.
* I remember once Rupert Sheldrake said that when he was in the studio reading out the spoken recording of one of his books, he thought of a better way to say something than how it was published in the book and when he spoke that, the editor stopped the recording and said that wasn't the way he'd written it. He said that he thought the way he'd just said it was better but the editor forbade the author from making himself clearer because it had to be the way the text was published.
Spoiler alert, those disastrous results was the encouragement of what would become the Confederates to break up the union and the horrors of the Civil War. It is quite possible that without the encouragement of the Taney majority in the Dred Scott case there may have been no Confederacy, no Civil War and some other denouement of one of our national original sins would have come. Of course the arguments in the Dred Scott decision were full of lies, such as that the founders never contemplated Black People having equal rights to white ones when most of the states allowed Black People to exercise legal rights, up to and including the right to vote. And the Constitution, from the start, clearly contemplated restrictions on slavery and even its possible, eventual end. But if there's one thing that's clear about Supreme Courts, the members of them know how to lie and practice legalistic hypocrisy and many of them will even in the most serious of documents. But Boudin isn't done with the years between Marbury v. Madison and the Dred Scott decision.
Nor was the power to annul federal legislation used by the federal judiciary for many years after Marshall's death, not indeed until the troublous times which immediately preceded the Civil War. During Marshall's chief-justiceship and under his successors, a number of state enactments were declared void because in conflict with the federal Constitution, and particularly because of attempted encroachment upon powers attributed to Congress; but the first case in which an ordinary law of Congress was declared unconstitutional was that of Dred Scott. And the only case besides Marbury v. Madison in which any law of Congress can be said to have been declared unconstitutional before the fateful Dred Scott decision was the negligible case of Fereira v. the United States, decided but a few years earlier. It will thus be seen that for at least a half a century no attempt was made by the federal judiciary to exercise the power asserted in Marbury v. Madison. And when it did act in this sense, it acted under extraordinary circumstances, in an attempt to solve by judicial decree an extraordinary political problem; and the attempt had extraordinary and disastrous results.
In the meantime the conflict over this power was raging in other fields. The state courts in several instances attempted to follow up the logic of Marbury v. Madison. The state courts were in this respect in a much better situation than the federal courts. The acts of the state legislatures were admittedly subject to review by the judiciary, both federal and state, on the score of repugnancy to the federal Constitution, treaties and statutes, in matters of a federal character. From this it was but one step - and a step which the layman could not always see - to the power of review on the score of repugnancy to the respective state constitutions. And yet this step was not taken unopposed, even after Marbury v. Madison. The ensuing conflicts form one of the most interesting chapters in our history - a chapter unfortunately now entirely neglected, the common lot of all struggles which end in defeat. It may be said in general, that the actual exercise of this power by the judiciary of the several states during the first fifty yeas after the adoption of the Constitution was very rare; that it was used only under extraordinary circumstances; and that its use almost always provoked great public excitement and sometimes entailed results of a more serious sort. In Kentucky it at one time led to the creation of two rival courts, each defying the other, and it almost led to the creation of two state governments. In view of these conflicts, and of the disastrous results attending the first important use of the federal power to annul an act of Congress in the Dred Scott case, it sounds like bitter irony when Judge Lurton says that this power has made us "for more than a century the most law-abiding people of the earth."
I will ask in passing what Lurton's personal history as a Southerner and a Confederate soldier may have done to influence his view of this power which was first used by the Southerner and champion of slavery and white supremacy, Roger Taney to protect and expand the reach of slavery may have been retained even after he belatedly pledged his loyalty to the United States and was elevated to the Supreme Court. Clearly his concept of "law-abiding" had included enslaving People and committing treason. I have no doubt that first and fatal expansion of that usurped power was very popular among slave-holders and white-supremacists along with its declaration that Black People had no rights white people were bound to respect. And so it is practiced by the court in 2022.
In most of the cases, however, the power in question although generally asserted, was not used at all during the first half of Judge Lurton's "more than a century." This was the case, for example in Pennsylvania, then the leading state of the Union. During the half-century following the adoption of the United States Constitution the Pennsylvania courts did not declare a single law unconstitutional, although the judges, with one notable exception, usually asserted that right. There may have been other exceptions, for it is probable that the doctrine was not quite so universally accepted even by the judiciary, either in Pennsylvania nor elsewhere as is now imagined; but the one exception known to us is that of Judge John B. Gibson, for many years judge of the Pennsylvania supreme court, part of the time its chief justice, and one of the ablest men who ever sat on that renowned bench. His opinion, officially stated in 1825, is a most convincing (and in my judgement quite unanswerable) argument against the existence as well against the expediency of the power of the judiciary to review legislation under any circumstances. Its historical importance, however, lies in the fact that, nearly a quarter of a century after Marbury v. Madison, one of the three judges who then composed the highest court of the great state of Pennsylvania, in an official judicial opinion, denied the existence of the power asserted by Marshall. And it is not without historical interest, as an evidence of the spirit of the time and commentary upon the changed spirit of ours, that Judge Gibson's views did not impede his promotion to the chief-justiceship of his state.
I would doubt that many of us brought up in the most expansive period of government by judiciary have any idea of this history, especially the skepticism of some of the most informed, most respected and accomplished of statesmen, lawyers and judges of this novelty of Supreme Court invention and expansion during the period when the country was introduced to it and was gradually habituated to it like it has become habituated to so many other malignant and even fatal things. The continuance of the practice by the malignant Rehnquist and now Roberts-Alito Court is dependent on the ignorance of its actual history and its actual reception by even those as held up laconically as Jefferson and Lincoln. The illegitimacy of it is far, far more well founded than its claimed legitimacy which is mostly based in the assertion of ever more grasping Supreme Courts and those who, on balance benefit from and so approve of the Court exercising legislative and executive powers. But the results of it, except in rare cases, has been bad for the country, destructive of equality (except in a few cases which the present Court is obliterating) and democracy. It is bad for the environment we all depend on for the benefit of the profit of the few (astonishingly, in recent cases, the Court nullifying treaty obligations whereas the excuse for it being exercised included making sure the Congress didn't violate treaties) and reimposing the very white supremacist apartheid that the first significant use of that power also attempted to establish by fiat.
It has emboldened the Supreme Court to be far worse than the original skeptics and critics of the power claimed by John Marshall probably imagined they would become when, as can be seen, the actual members of the court were quite modest and even deferential to the elected branches. Though from the earliest of those skeptics' criticisms was mentioned the danger of a run amok court practicing dictatorial powers. The foresighted were those critics, not John Marshall, not those who agreed with him on and off the Court. Not the majority of lawyers and lower judges who just went along with it out of professional expediency. Certainly not Taney and his six colleagues who issued the Dred Scott decision which they idiotically believed would "restore national peace and harmony" by extending the violence of slavery to the entire country and which did facilitate the worst war in our history.
And as Boudin points out, the Court expanded its use of that self-given power steadily after that. The Roberts-Alito Court is using it to bring us to a crisis that even their foolishly depended on non-support of Trump's treasonous insurrection cannot make up for. The Court has to have that self-created absolute power taken from it and they must be subjected to real and binding and consequential ethics laws that they cannot brush aside by their Supreme fiat and things such as a term limit and, I think, a requirement that a number of them have competency in things such as math and science which they certainly lack to a person, now. It is obvious that those arrogant lawyers figure their erudition can make up for that when it's obvious that it can't. They regularly practice an arrogance that even George III would have been well beyond, they have more in common with some of the madder medieval style kings and princes than in ones since the scientific method took hold in Western culture. We have never had worse "justices" than some of those who make up the Republican-fascist majority of it right now, in terms of character, in terms of competence, in terms of arrogance and the arrogance of office without any check. We don't need to wait for the even worse that that court can come up with to end it.
And now we get to the real nature of Marbury vs. Madison instead of the common nonsense that it was the real start of the modern Supreme Court supremacy. And how the use of it was more of an excuse by, first the Taney Court to do exactly what Marshall's decision did not do, expand the powers of the Supreme Court in a significant and dangerous way.
I think it's not often considered how much the American culture of the law and the courts is shaped by what could honestly be considered a folklore process like mastering an ancient quasi-religious liturgy. How things come into being and gain a life of their own and are maintained and expanded on, not in the explicit act of a legislative body hearing the appeals of their constituents, studying issues, carefully drafting laws with an intended purpose and those being approved or turned down by a large body of ELECTED representatives, or, in some cases, by referendum by the voters.
Instead of that representative, sometimes arguably democratic process, the law as passed by the legislature or not is shaped by a priesthood of robed professionals, at the highest level, one of unquestionable, unanswerable authority who can distort or change or alter meanings at will. And lawyers and lower judges who want to get along in the profession pretend that those things are as legitimate as duly adopted laws passed democratically. In the law-school lore of that culture, such things as are being discussed here become fundamental, everyday assumptions which, if disturbed or even questioned, cause panic and worry, not least for their ability to make good money off of lawyering. The role that professionally interested maintenance of a knowledge of a body of lore and protecting that lore from drastic change that could upend much of what their professional work takes for granted accounts, I think, for why the idea of abolishing this usurpation of legislative and executive power seems so radical when it is such an obvious danger and such a clearly extra-Constitutional, mostly anti-democratic usurpation of power by unelected, unanswerable "justices" who are frequently most unjust.
III
In 1803 came Chief Justice Marshall's decision in Marbury v. Madison. Since this is not an inquiry into the broad question whether or not the courts should have the power to declare legislation unconstitutional under any circumstances, but rather a historical sketch of the development of that power, I shall not enter upon a discussion of the merits of that decision. Suffice it to say that historically it was, as Mr. Cotton calls it, "amazing'; and that as a matter of legal reasoning it has been pronounced by many eminent thinkers unsatisfactory. Nearly twenty-five years later Chief Justice Gibson of the Pennsylvania supreme court, one of the ablest judges that ever sat on that great bench, called Marshall's argument "inconclusive."
It's "amazing" quality does not, however exhaust its historical interest. It was undoubtedly a turning point in the history of our political institutions. But it lacked much of being what it has since been often represented to be, and what it is generally understood to be by students of and writers on the subject. It is therefore worth our while to examine a little more closely into its immediate significance, at the time when it was rendered.(1) Its positive historical importance lies in the fact that here, for the first time in our federal history, a court undertook to base a decision on its alleged power to declare a law null and void for alleged repugnance to the written constitution. The right previously asserted by some judges as an abstract proposition was thereby turned into a concrete power, to be reckoned with as a part and parcel of our political system. It created the politico-legal foundation upon which the imposing edifice of that power as it now exists was gradually erected.
But the power which was actually exercised in this case was a very limited power. Two points should be carefully noted. In the first place, the law which the decision annulled was one particularly relating to the judicial department and its powers much like the law which was questioned in Hayburn's case. In this instance, however, the law conferred upon one of the federal courts, namely, the Supreme Court, a distinctly judicial power. In fact it increased the power fo the Supreme Court. What was really decided, in Marbury v. Madison, was that the Supreme Court had received certain powers from the Constitution itself, which Congress would not be permitted by that court either to increase or to diminish. One might very well agree with that contention without attributing to the Supreme Court a general right of reviewing the acts of Congress in matters of general legislation. From the claim that the judicial department is a co-equal branch of the government, and that its purely judicial powers and jurisdiction, in so far as they are expressly given by the Constitution, cannot be encroached upon by Congress, which is all that the case actually decided, it is a far cry to the claim that the Supreme Court is the sole interpreter of the Constitution and that its interpretation is binding on the legislative department in all matters of legislation. In the second place, there is a wide difference, particularly in political matters, between the refusal to exercise a power which one's opponent believes to exist - which is all that those who did not agree with Marshall could say - and the actual exercise of a power which that opponent believes not to exist. To the opponent the first may be unnecessary modesty or weakness or, at the very worst, neglect of duty; but the second is usurpation.
This last point is central to the issue, that in Marbury v. Madison, the Supreme Court was merely refusing to exercise a power, or perhaps the burden, that the members of the Court believes was given to them by Congress unconstitutionally, whether a later court would have disagreed with the power to issue the mandamus or not, that is all they were doing. That is a far cry from what the later courts did in striking down even well accepted and popularly supported federal law, even decades after those laws were in effect, which had nothing to do with the activities of the judges and "justices" in the judicial branch. That difference strikes me as being all the difference in the world between what Marbury v. Madison actually did and what the later instances of the Supreme Court assuming the roles of both the legislature in nullifying laws and the president in vetoing laws, even decades after those with the actual Constitutional authority to do those things had done them and the laws had been up and running.
And, as important, is the extra-Constitutional power of annuling FEDERAL law, has to be distinguished from the Court overturning state laws which, among other things, deprive citizens of the rights guaranteed in the Constitution, itself. The very same people who love the Supreme Court power when it strips us of important protections of our lives, such as the Roberts-Alito arming of any psychopath who can get a gun under their jacket, the right to cast a vote and have that vote matter, the right of Women to the full ownership and control of their own bodies detest it when it protects the rights of Americans, both citizens and residents, when it protects them against state laws that deprive them of their rights and their very lives. That is exactly what the history of the Supreme Court has been, especially since Taney and his colleagues asserted and greatly expanded that "right" of the Court to do that to promote and protect slavery in 1857. The history of the Supreme Court, even before Taney, is largely a history of the Court depriving powerless people of their rights, especially their right to the protection of the government - I would bet as many if not more state and local laws that do that have been overturned by them than those which deprive them of rights and protection. The few times when they atypically have not done that are held up as beacons in Supreme Court history when what those are are outliars in a history more typically worse than it's painted to be.
A further point deserves notice. The practical result of the decision, and the only result that the ordinary man could see, was a victory for Marshall's political opponents, the Jeffersonians. Marbury, a Federalist appointee of Adams, applied to a court controlled by Federalists for a writ of mandamus compelling Jefferson's secretary of state to give him the commission signed by the outgoing Federalist secretary of state. He claimed the writ under a law passed by the Federalists. The Supreme Court annulled the Federalist law and non-suited the Federalist claimant. Jefferson won a practical and substantial victory. What did it matter what reasoning Marshall employed in giving Jefferson the victory? The "man in the street" knew nothing of Marshall's reasons. And if he did, he did not care. He seldom does care for such niceties. He is so intensely "practical." He may have thought that Marshall used a great deal of technical language and acute reasoning in order to save the face of the court. In short, there is nothing in the decision to bring its importance, whatever that was, home to the "practical man" - a fact which is often of controlling importance in historical events.
Of course there were not wanting at that time those who could read the future. One of them was Jefferson. They saw the legal significance of this decision and its possible implications, and they denounced it in unmeasured terms. Jefferson bade it defiance; and it is safe to say that, had there been any attempt to do anything under that decision while Jefferson was president, it would have provoked a conflict in which the judiciary might easily have come out second-best.
When I went over the chapter concerning the Dred Scott decsion in Louis Boudin's book of the same name as his article and the reaction to it before and during the Civil War, it was striking that Lincoln put into effect the defiance of the extension of that power in ways that his eminent predecessor Jefferson may have come to if the Court had tried it again during his term in office. I think Madison may have defied the Court if they tried it during his term. That one of our greatest presidents, faced with the gravest national catastrophe we have yet faced openly defied that power in ways that Jefferson advocated should have been read as a red flag that the power claimed by them was dangerous and, when expanded by Taney et al on behalf of the slave-power it required defiance. Would that later presidents had taken up that spirit of Jefferson and Lincoln. Would that one did now.
But in fact nothing was done under the power asserted by the court in Marbury v. Madison during the following thirty-odd years of Marshall's chief-justiceship. Why this was so, it is not necessary here to inquire. . .
I will guess that it is exactly because Marshall didn't relish the idea of having a Constitutional fight with Jefferson or his successors. Not to mention the Congress who, in that period, could probably have gotten the Constitution amended to explicitly strip the Court of the power asserted as well as others. It would probably have been far easier to do that then than it is now with fifty states, many of them so rigged and gerrymandered that even a majority of voters approving of the amendments couldn't overcome the political corruption such as the Roberts Court is rubber-stamping for the Republican-fascists. However, it could have been that Marshall wasn't so sure of the legitimacy of the claimed power, himself, see above about the difference between refusal to exercise a power claimed and the exercise of a power disputed.
. . . I will say, however in passing, that Marshall's position as a constitutional lawyer and statesman has been much misapprehended, owing to later attempts to base the judicial power on his decision in Marbury v. Madison. In my opinion Marshall's great place in the history of our country is due, not to any doctrine of the limitations of the legislative power, which others deduced from that decision more than half a century later and with but doubtful warrant, but to the liberal spirit in which he interpreted, and thus helped to develop, the legislative powers of Congress.
Here is the footnote describing the case:
1. The facts of this celebrated case, in so far as they are material to an understanding of the decision, were as follows. After the great victory of the Republicans in the election of 1800 - "the Revolution of 1800" as Jefferson called it - the Federalists utilized the brief term of power which was left them to remodel the federal judicial system and to fil the federal courts with their partisans. As part of that work they created, by an act passed February 27, 1801, certain justiceships for the District of Columbia; and one William Marbury, a plaintiff in the case, was appointed to one of these justiceships. His nomination was confirmed by the Senate March 3, the last day of the Adams administration, and his commission was signed that night by the president and sealed by Marshall, then secretary of state. On that night Marshall himself was commissioned as chief justice of the United States. Marbury's commission, however, was left undelivered for lack of time; and when Jefferson took office he forbade its issuance, on the ground that the appointment did not take effect until the delivery of the commission, and he was therefore free to revoke it. Marbury the applied to the Supreme Court, now headed by Marshall, for a mandamus compelling Madison, Jefferson's secretary of state, to issue to him his commission. To the order made by the court, commanding the new secretary to show cause why the mandamus should not issue, Madison paid no attention. After long deliberation, the court gave its decision in 1803, refusing to issue the mandamus. In the opinion delivered by Marshall, the court based its decision, not on the contention put forward on behalf of the administration, that Marbury was not legally appointed and therefore not entitled to the commission, which contention it expressly overruled, but on the alleged lack of power in the Supreme Court to issue a mandamus. In order to arrive at this latter conclusion, the court had to declare unconstitutional a statute passed by Congress giving the Supreme Court such power. And it is this part of the opinion that has made it famous.
I noted yesterday that virtually all of the major figures in the Marbury v. Madison case were among the eminent and lesser "founding fathers" who wrote the Constitution.
John Adams was certainly one of the key figures in the Constitutional Convention and someone who had the confidence of George Washington, certainly another major figure in it. I assume the law that was nullified in the decision was one he signed into law, though I would like to find confirmation of that. HE certainly didn't think what he was doing was unconstitutional. As his Secretary of State, later the Supreme Court chief who issued the ruling, you have to wonder if John Marshall believed what his president was doing was unconstitutional at the time. I don't know if he ever said anything on that. Perhaps he, as a "not-founder" deferred to those who had actually debated and drafted it as having superior knowledge, even if they disagreed among themselves. Which they clearly did in many instances. The claim that today's Supremes can discern THE INTENT OF THE FOUNDERS is a lie. In many cases there is no such single intent.
James Madison who ignored the Court's demand that he explain himself was one of the most important figures in the Constitutional Convention. What his thinking of the Constitutionality of the whole thing was, how it related to his reading of the Judiciary articles would be interesting to know. I have not researched to see if he left any such commentary.
Jefferson, while he was not at the Convention and, so, isn't considered a "founding father" was certainly one of those most influential in shaping the general outlines of it. And, as Boudin notes, he was a fierce critic of the kind of power that Marshall asserted in regard to courts, even the Supreme Court having the power to nullify duly enacted federal laws.
To assert that, in any way, the power asserted in a weak form by Marshall and built on in a radical manner by Taney in the Dred Scott decision - a power which Lincoln rejected and defied and was not removed from office for - was not the usurpation of the Supreme Court refusing a piddling power to issue a mandamus by seizing the power to do what was solidly and clearly a legislative act or that of the executive, rejecting legislation or vetoing it, is incredibly sleazy. The cynicism of Henry IV of France's sham conversion to Catholicism to gain the crown is infinitely less cynical in comparison.
I will note that I think the relative reticence with which Boudin calls into question the origin and motivations of starting and building that edifice of government by judiciary in 1911 became far stronger in 1931. Today, ninety-one years later, the case would be stronger still, and more complicated and informed by more recent research into the financial background of Marshall as a major slave holder along with his rulings on that most fraught of issues in American history. I find it impossible to not think of him as a self-serving slaver and racist first and foremost. I think in this case he may have come to his decision grasping onto whatever he could to avoid having a confrontation with Jefferson and Madison which he, brilliant as he must have been, would be outgunned, in intellectual and political power and reputation. The delay in the issuance of the decision looks to me like he and his colleagues, who would probably be looking at the prospect of such a fight with those two giants with even less enthusiasm were looking for an excuse to do nothing and they lighted on a very dangerous excuse for that. One which has, since it was taken up by Taney as an excuse to do one of the most evil things that Court has ever done, proven to be extremely dangerous. Its dangers have grown larger ever since till today and the first election-rigging Rehnquist Court and now the neo-apartheid, vote suppressing, uterus nationalizing Roberts-Alito Court are making ever more dangerous.
It's time that the Supreme Court's reign of judicial supremacy is ended. We need a Supreme Court that is less supreme and more in line with those of modern more egalitarian democracies. We need them to serve fixed terms and to have that self-taken power removed from them while in office. The 18th century ended a long time ago, so did the 19th, and the 20th. We can't get to the future with this Federalist-fascist Society chain on us.
Next in Louis Boudin's 1911 article Government by Judiciary:
That was the atmosphere in which arose the following facts, which are usually referred to as "Hayburns's case." (1)
The First United States Congress passed an act "to provide for the settlements of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims of invalid pensions." Under the provisions of this act the claims were to be passed upon by the federal circuit courts, whose decisions were to be subject to the consideration of the secretary of war, and, if the secretary saw fit, to suspension, and to the revision of Congress itself. The question of unconstitutionality, in the modern sense of the word, was not involved. But the judges saw in this act of Congress an encroachment upon the dignity and independence of the judicial department. For this view there were good reasons; for if the duties assigned to the judges were regarded as non-judicial and ministerial, it was not fit that such a burden should be imposed upon them; and if, on the other hand, these new duties were regarded as judicial, the independence of the courts was endangered by assigning to the executive and legislative departments power to revise judicial decisions.
I'll break in to point out that what the later "justices" who created the power of that very Court to overturn duly enacted federal laws were, themselves, doing exactly what those of this early period objected to, taking on non-judicial functions which were not properly within their range of responsibilities, certainly nothing the Constitution excused them doing. This entire practice is saturated in hypocrisy mixed with irony.
What were the courts to do? We can readily imagine what they would do now, in any similar emergency. What they actually did then shows how far we have traveled from the points of view held by the men of Massachusetts and of Virginia and of Maryland, who formed this government of ours.
If you need to be reminded, this is a sarcastic reference to the speech of "justice" Horace Lurton quoted earlier in the article.
I will note in passing that the members of the First Congress and the then Supreme Court had direct access to the minds of "the founders," "the framers" because some of them were actual members of the Constitutional Convention of 1787, many more knew members of that Convention, they were their most intimate colleagues. It is absurd to think that later members of the Supreme Court or legal scholars could have better understood that "original intent" than those of the generation who had those intents, though the entire right-wing of the Court now believes or, rather claim they, actually, can do that through Federalist-fascist Society style necromancy and the entirety of educated consideration, polite society and the established order as well as the ignorant media goes along with that supreme horse shit. The culture of such ignorance and cowardice based deferential suckering when it comes to the third branch of government is a key player in the corruption that the present-day Supreme Court is running rampant with.
The members of the circuit court for the district of New York (Mr. Jay, chief justice of the United States, Mr. Cushing, associate justice of the United States Supreme Court, and Mr. Duane, district judge) stated, in writing, their objections to the law. They held that the duties which Congress had assigned the court were "not judicial, nor directed to be performed judicially," and that the court as such could not perform them. But, they said, "as the judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the national legislature," they would execute this act in the capacity of commissioners. And they proceeded to perform the duties imposed upon them.
It should be noted that two of these three most reluctantly compliant "justices" were actually members of the Constitutional Convention, Jay among the most prominent and vocal participants in it. Others of the initial Supreme Court, such as Wilson was as well. The First Congress which adopted the bill that they complained of was rife with either actual members of the Convention that drafted the Constitution or with some of their closest colleagues and friends.
The members of the circuit court for the district of Pennsylvania (Messrs. Wilson and Blair, associate justices of the United States Supreme Court, and Mr. Peters, district judge) and the members of the circuit for the district of North Carolina (Mr. Iredell, associate justice of the United States Supreme Court, and Mr. Stigreaves, district judge) declined to act; and they sent "representations" to the president, explaining their apparently insubordinate conduct.(1) These representations are strange readings to the lawyers of to-day. We are used to different language from members of the "most august judicial tribunal in the world."
The matter was afterwards brought up by the attorney-general before the United States Supreme Court, on the question whether the judges had a right to decline to act. And the official report says, that, although the judges were all agreed as to the unconstitutionality of the law, "the Court observed, that they would hold the motion under advisement until the next term; but no decision was ever pronounced, as the legislature, at an intermediate session, provided, in another way, for the relief of the pensioners."
No decision pronouncing an act of legislation void because repugnant to the federal constitution was rendered prior to Marbury v. Madison. The case of Calder v. Bull, decided in 1789, in which an act of the Connecticut legislature was upheld, is interesting, just as Otis's argument in the Paxton case is interesting, because in delivering the opinion of the Supreme Court Mr. Justice Chase went out of his way to give his views on the abstract proposition of the right of the courts to annul legislation, irrespective of constitutional limitations, on the ground that it is "contrary to the great first principles of the social compact." The case is interesting, further, because, in asserting obiter the authority of the court to declare unconstitutional laws void, Mr. Justice Iredell described the authority as "of a delicate and awful nature" and said that "the court will never resort to that authority but in a clear and urgent case." To the view propounded by Chief Justice Chase, Justice Iredell took exception, saying"
"If, on the other hand, the legislature of the union or the legislature of any member of the union shall pass a law within the scope of their constitutional power, the court cannot pronounce it to be void, merely because it is in their judgment contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject; and all that the court could properly say in such an event would be, that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion of the judges, was inconsistent with the principles of natural justice.
1. The "representation" to which the Pennsylvania circuit court sent to the president reads as follows:'
" To you it officially belongs to 'take care of the laws' of the United States ' be faithfully executed.' Before you, therefore, we think it our duty to lay the sentiments, which, on a late painful occasion, governed us with regard to an act passed by the legislature of the union.
"The people of the United States have vested in Congress all legislative powers granted in the constitution.' They have vested in one Supreme court, and in such inferior courts as the Congress shall establish, ' the judicial power of the United States.' It is worthy of remark, that in Congress the whole legislative power of the United States is not vested. An important part of that power was exercised by the people themselves, when they 'ordained and established the Constitution.' This Constitution is 'the Supreme Law of the Land.' This supreme law 'all judicial officers of the United States are bound, by oath or affirmation, to support.'
"It is a principle important to freedom, that in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle, the people of the United States, in forming their Constitution, have manifested the highest regard. They have placed their judicial power, not in Congress, but in 'courts.' They have ordained that the Justices of those courts shall hold their offices during good behaiviour,' and that 'during their continuance in office, their salaries shall not be diminished.'
"Congress have lately passed an act, to regulate, among other things, 'the claims to invalid pensions.' Upon due consideration, we have been unanimously of opinkon, that under this act, the Circuit court held for the Pennsylvania district could not proceed.
"1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the Circuit court must, consequently, have proceeded without constitutional authority. 2nd, Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgements) might, under the same act, have been revised and controuled sic. by the legislature, and by an officer of the executive department. Such revision and controul we deemed radically inconsistent with the independence of the judicial power which is vested in the courts'; and, consequently, with that important principle which is so strictly observed by the Constitution of the United States.
" These, Sir, are the reasons for our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary, either to the obvious directions of Congress, or to the constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again."
It is amazing that this history of pre-Marbury discussion of these issues is not more known, the members of the Supreme Court of that period and their honest, forthright modesty - even in Iredell's point about natural law admitting that the Congress had as legitimate a view of it as anyone on the court - and considering some of the lawyers in the Congress of the time were among the most eminent of lawyers in the country, indeed some of them actual drafters of the Constitution, this swamps the later day, would be "originalists" and "textualists" and other such liars who take on the powers legitimately belonging to the Congress to abolish duly adopted laws by the elected branch. When the Federalist-fascist Society puts a cameo of Madison up as its mascot, it is a wonder his shade doesn't rise up and obliterate that club of fascists.
I will point out, since the next section in this series deals with Marbury v. Madison that virtually all of the actors in that were, actually, some of the central figures in the drafting of the Constitution, John Adams, James Madison and the de facto founder - though he wasn't a member of the actual Constitutional Convention, he was one of its most important consultants - Thomas Jefferson. I'll hold further comment on that point until then.
As amazing is the suppression of this literature which could only be done for the purpose of upholding the illegitimate practice and the most likely reason for such an effort to succeed is that it, by far, favors those who are rich, powerful, embedded in power and influence, their efforts gone along with by others out of ignorance and cowardice which I have come to believe since witnessing the conduct of lawyers testifying in Trump's first impeachment hearings is typical of the legal profession and the kind of lawyers the judiciary made up of. The history of this power is not told in Brown v. Board or other such reputed milestones of progress in Supreme Court history, it is told in the retreats from equal justice, those favoring slave owners, in cases of Supreme Court suppression of state laws protecting the health and safety and rights of workers, in the current reign of the Roberts-Alito court in favoring the coal, oil and gas industry over survival of the biosphere, of it putting guns in the hands of those who murder us, and, I would assert, emboldening it to do things like overturn elections and to suppress efforts by the Congress to clean up and democratize our politics. The Supreme Court story, far from the Nina Totenberg - Anthony Lewis style romance about what they do, is more typically told as the cynical history of a bunch of gangster lawyers enabling the kind of un-illegalized crime that is allowed too often in our political branches and is even more enabled by the Supreme Court and other corrupted federal courts. The perfecting of the virtual fourth branch in the shadow docket is, also, a product of the culture of government by judiciary. Lawyers are trained to focus on words instead of the realities behind them, they only really figure the words are what's important in most cases. That's the bread and butter of their professional lives. That and getting paid for it - 'during their continuance in office, their salaries shall not be diminished.' Just had to remind them that Congress couldn't cut their salaries if they pissed them off.
There is every reason for the Congress, the President to reign in the Supreme Court by refusing to acknowledge their self-created power to veto or nullify laws made by Congress and they could certainly do it citing the text of the Constitution and such facts as Louis Boudin brought out more than a century ago. It is stunning how that has not been done and will probably be stunning in it not being done even as this Roberts-Alito court gets ever worse and finishes the destruction of American democracy as the Rehnquist Court, chiefed by a known practitioner of voter intimidation in Arizona, started in earnest. The temptation to look back on the Court in his years in the way that foolish people look back at the Bush II regime now that we've experienced Trump should not be followed. The wrongs of the past are some of the tools that the wrong-doers of the present use to expand on those wrongs. That's especially true of the legal racket. And under our system, corrupted by the unregulated. ethics-free, Supreme Court, it is a racket.
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Bush v. Gore should have been the last straw on the back of democracy, when will Americans finally throw off the imperial Court and cut it down to what it should be, as it is in any modern democracy except that of the United States with its outmoded Constitution which, however, is not to blame for this abomination. Getting rid of the goddamned Electoral College, an invitation for anti-democratic corruption, is as important. Doing that through states passing the reform of state electors casting their votes for the winner of the popular vote that will attempt to do that without the impossible to accomplish Constitutional amendment process should be among our most important efforts. If that had been in place in Michigan or Wisconsin or many other states, Trump and his army of armed insurrectionists would have never tried what they did on January 6. If it had been in place in Jeb Bush's fifedom of Florida in 2000, Al Gore would have been president and much of the crisis of the past two decades would certainly not have been what it was. I doubt he'd have been caught asleep at the wheel as warnings that 9-11 was coming were being sent his way, his National Security Advisor wouldn't have been focused on her piano practice for a star-turn instead of doing her job as National Security Advisor. Roberts and Alito would still be hack lawyers of Federalist Republican-fascism and it's most likely that there would have been on financial crisis of 2008. And that's only the start of it. The crises we have faced are largely a product of the corrupt Rehnquist Court's abominable action in 2000. Trump would have been an aging figure on network TV and Putin would never have bothered cultivating him as his mole in the presidency. If there are those who really understand the American governmental system as it really is instead of in court-reporting bull shit, it's the likes of Vladimir Putin and other such manipulators of our system, especially under the Citizens United ruling of the Roberts Court which, with warnings, opened us up to their manipulations. The imperial court is one of the greatest dangers to our very independence as a country. And they really don't mind playing that role because, after Trump, it's clear as can be that's exactly what they're doing.
Continuing on with Louis Boudin's 1911 article Government by Judiciary, we come to the actual framing and text of the Constitution which is alleged to be the basis of the Supreme Court's power to do anything but which clearly does not give them the powers they grabbed for themselves.
II
Turning now from pre-convention history of the Constitutional Convention itself, and to the document which that convention framed, the candid student must admit that there is absolutely no evidence whatever of any intention on the part of that body to invest the judiciary with any sort of control over federal legislation, or over state legislation in matters admittedly within the legislative competence of the states. And even if it be assumed, as it is commonly assumed to-day that in those matters in which state legislation was made subordinate to the federal Constitution and laws it was the judiciary, rather than any other federal governmental department, that was to act as the guardian of federal power against state aggression, there is not the slightest evidence that the framers intended to confer upon the judiciary anything approaching the degree of control over state legislation which in later times and by slow expansion of "implied" authority the judges came to exercise. There undoubtedly were some men in the Convention who favored the investing of the federal judiciary with general revisory powers over legislation; but all attempts to make the judiciary part of the legislative power of the federal government failed signally and had to be abandoned by their sponsors. The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by other implication. And there is ample historical proof that - whatever the hopes of some, from the complete silence of the document, as to possible future development - the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the new Constitution. They evidently assumed that such an extraordinary power could not be exercised unless expressly granted.
I will start by noting how odd it seems to us, so long into government by the judiciary, to think that any other branch or department of the government should have the power and ability to reign in states that violate the federal Constitution, so used are we to figuring we MUST go to the courts for any such problem. I have not thought very long and hard about that but I can't see any reason why the Court is more capable of that than the Congress or, in fact, any of the better presidents we've managed to have even with our appalling anti-democratic means of getting them. I certainly don't much less trust them, as institutions, to do any worse than the Supreme Court, as an institution. Of course there are presidents and Congresses that have done terrible things but the Supreme Court has too, if you didn't remember that, get a load of the Roberts-Alito court and what it's allowing in Republican-fascist states in regard to the rights of Women to the ownership of their bodies, the rights of qualified citizens to cast a vote and for those votes to matter equally, the rights of us not to be shot down with automatic weapons, our rights to have a viable future instead of burning up in coal, oil and gas created hell. The present day court as much as the Taney Court and others proves that the Supreme Court is far, far less worthy of such confidence and impossible to correct by voting them out.
I will continue by noting the careful dance between the Supreme Court's absolute non-authority to annul federal legislation and how the Constitution actually does grant the federal Supreme Court some limited power to overrule some state legislation when it is in serious conflict with the provisions and enumerated rights of People. There is certainly an overriding NATIONAL right of all of us to have the Congress be an accurate representation of a majority of The People in the country, for example, not to have the legitimate voters be deprived of casting a ballot, having it counted or having it gerrymandered into insignificance for racial or partisan purposes. No matter what "justice" Gorsuch and his colleagues on the Republican-fascist majority of the Roberts-Alito Court hold. It is a right of the most superior and only roots and trunk on which any other branches have any legitimate busness over, The People to have the government represent the majority of Americans, a right that is the only source of legitimacy for any of it, local, state, federal including the Supreme Court which is the most witlessly shielded from the will of We The People. There is some legitimate oversight by the Federal Court AND THE CONGRESS of such state laws as those which have deprived Black People, others of that most important right of a citizen, there is every reason for the Republican-fascists in the case gutting the Voting Rights Act to see it as an act of bald Supreme Court "justice" politicing on behalf of the Republican-fascist Party. And what is true of that is certainly true of the right of Women to control their own bodies. I'm certain there are other instances when the same six Republican-fascists or a five to four majority of them would have no problem nullifying state laws made to protect the lives of The People when it can put automatic and other weapons in the hands of its supporters and any criminally insane person who wants to murder people. The Roberts-Alito court has that blood, as well as that of Women harmed by its recent decision on its well-manicured, merely apparently soft and clean hands.
The judiciary article as finally formulated was adopted without a dissenting vote and almost without discussion. It is absurd to assume that the many avowed opponents of judicial control of legislation who sat in the Convention would have agreed to the article without a murmur had they suspected that it contained even a part of the enormous power which our judiciary now exercises. Richard Spraight, for one, whose fiery denunciation of this power I have quoted above, would have made the halls in which the Convention met ring with the echo of his empathic protest, had he suspected any such implications. And it is equally certain that had the Convention given to the courts that power, either expressly or by necessary implication, apparent to the ordinary mind, the Constitution would have been overwhelmingly rejected by the people.
It is, of course, supremely ironic given the previous claims that the government by judiciary is warranted by colonial era courts trying to push that envelope in that direction that it was specifically against the legislatures that such powers were asserted and such powers were rejected in the strongest possible language. It was to just such, then state, legislatures that the Constitution was proposed and accepted. In most states with a very strong skeptical opposition being voiced in the legislatures. If such proposals had been suspected it is certain that many if not all of the legislatures would have rejected the document on that ground, alone.
A careful examination of all the evidence on the subject now extant leads to the conclusion that the Constitution was adopted by the Philadelphia Convention, and ratified by the people of the states, without any belief, without even a suspicion on the part of the great majority of those voting for it, whether in or out of the Constitutional Convention, that it contained any such implications. Even Hamilton, who saw more clearly than did the others the possibilities arising from the silence of the document on this vital point, probably never dreamed of any such development of the judicial power as has taken place since his day. Mr. Joseph P. Cotton, jr. puts the case rather mildly when he says, in his introductory essay to the latest edition of John Marshall's constitutional decisions, in speaking of Marbury v. Madison:
"Common as this conception of the powers of the courts now is, it is hard to comprehend the amazing quality of it then. No court in England had such a power; there was no express warrant for it in the words of the Constitution; the existence of it was denied by every other branch of the government and by the dominant majority of country. Moreover, no such power had been clearly anticipated by the farmers of the Constitution, nor was it a necessary implication from the scheme of government they had established."
Mr. Cotton may well call the decision in Marbury v. Madison "amazing," for prior to that decision the federal judiciary itself did not claim to have obtained the powers in question by the adoption of the Constitution. Hayburn's case, so-called, gives a fair picture of the way in which the judges themselves regarded the relative positions of legislature and judiciary, under the government established by the Constitution, during the first years after its adoption. The consideration of that case should be prefaced by the remark that, upon the adoption of the Constitution, and because the powers now under consideration were not then believed to have been granted by the Constitution the federal judiciary was considered of little importance and so inferior and subordinate to the legislative and executive departments that our first presidents had great difficulty in getting men of high standing to accept positions on the United States Supreme Court. The judges themselves were evidently in fear of encroachments by the legislative department upon their dignity and prerogatives.
Going through this article by Louis Boudin piece by piece, as here, isn't a replacement for reading the entire article in one sitting, in which some of the subtle points and sarcasm of Boudin is more obvious. I recommend reading the whole thing and wondering at how the points he made a century and a decade ago were successfully buried when the power he exposed as illegitimate has increasingly become more outrageous and dangerous in its exercise. His style of writing is impressive for his skill in giving his text continuity. I'm enormously impressed with his achievements for someone who I believe learned English at a relatively late age.
And it's not a replacement for his great two-volume work of the same title which was published twenty years after the article was written. This is a very good and adequate outline of the case he made in the book, presenting far more evidence and with far more to say about the outrageous excesses of the Supreme Court under its usurped powers rending it supreme over the other two branches whenever it wants to make such an assertion of power. And, increasingly, that is exactly what the Roberts-Alito court is doing, either plainly by hearing cases or by farming out the outrageous work to lower courts through the putrid shadow-docket which they have elevated to a de facto fourth branch which does the same thing.
The Supreme Court has to be cut down to size and, as I noted, the means of making that clear within the Constitution is probably never going to happen, amending the thing is next to impossible and Republican-fascist legislatures will block such a move UNLESS DEMOCRATS SUDDENLY HOLD A CONTROLLING MAJORITY ON IT, and if that is a next to impossibility it is certainly not ever going to happen by the Supreme Court giving up a power they created, stole, nurtured and have steadily expanded both in its claimed authority and its reach and scope. Despots don't give up power, they have to have it taken from them and the only way to do that is by joint agreement of the Congress and President to do it. Since the impeachment process under the Constitution is, for all useful purposes, a myth, I would propose that a Democratic President - and it probably won't be a trained, indoctrinated lawyer who will do it - refuse to go along with a Supreme Court ruling nullifying federal legislation and dare the Congress to impeach them over that support for the clearly enumerated powers of the Congress to make law. If you think the Congress would impeach over that, I can't imagine one except one controlled by cowardly, trained, indoctrinated lawyers doing that once they realized that they were enhancing the power of the First Branch in the Constitution in which they were sitting. You'd, of course, have to have a Democratic Congress to do it, Republican-fascists are perfectly happy to have the Court doing what it is doing with the McConnell rigged majority of fascists sitting on it. But that could change.
