This is a set of five plays about members of the Cartwright-Tully Family centering on the mixed blessing of being clairvoyant, especially the ability to communicate with the dead. I consider it a masterwork by one of my favorite writers of audio drama.
THE RACIST EVEN HOMICIDAL CALLOUSNESS in regard to Black People held in slavery of the affluent white men who wrote the Constitution can be seen in a particularly chilling quote from one of the viler members of the Constitutional Convention, Oliver Ellsworth of Connecticut. He was a very rich lawyer, the son of a wealthy farmer who quickly amassed a fortune of his own, including in public securities, one of the primary beneficiaries of the Constitution he was participating in framing and whose overt corruption in that regard didn't keep him from high office in the new government. It wouldn't have, Washington appointed him and he, too, greatly benefited from what was drafted. He named Ellsworth to be the second Chief Justices of the Supreme Court. But, then, many, probably most of the members of the Constitutional Convention seem to have made out very well out of what they created. Washington doesn't seem to have given much of a thought to the fitness for office of a number of those he appointed, he seems to have appointed Ellsworth primarily to regionally balance his appointees.
The passage and quote concerns how the Convention accommodated the various economic interests of two sets of slave owners, those who held slaves in places like Virginia and Maryland and those in Georgia and South Carolina, how some of the pose of wanting to restrict the importation of slaves had a far more mercenary than a moral basis and proves, beyond question how truly cold blooded the members of the Convention were, even when presented with the deadly fact of slavery. Even those "good masters" of the conventional civic piety of my young alleged history classes** can't be said to not know that the institution they benefited from was not also based on working slaves to death by some of their good friends and esteemed associates. I'll give you three paragraphs on pages 176 and 177 of the Dover Reprint of An Economic Interpretation of the United States Constitution.
None of the powers conferred by the Constitution on Congress permits a direct attack on property. The federal government is given no general authority to define property. It may tax, but indirect taxes must be uniform, and these are to fall upon consumers [the kind of regressive taxation scheme to get the poorest to pay even a ruinously higher percentage of their wealth in taxes than the very rich could pay without pain, typical of ancient and modern despotic regimes and our tax system]. Direct taxes may be laid, but resort to this form of taxation is rendered practically impossible, save on extraordinary occasions, by the provision that they must be apportioned according to population - so that numbers [the majority] cannot transfer the burden to accumulated wealth [that the over-taxed masses can't stick it to the fat cats]. The slave trade may be destroyed, it is true, after the lapse of a few years; but slavery as a domestic institution is better safeguarded than before.
Of course the anti-democratic features embedded into the Constitution prevented Congress from taking such action, certainly among the reasons for embedding them. The abomination of retaining property requirements to vote in federal elections, the anti-democratic character of the Senate, giving the white supremacists even more power in the House by letting them steal representative's seats by counting 3/5ths of those they would never represent but would exercise that power against - what the Roberts' court is re-instituting on behalf of Republican-fascism only counting the disenfranchised at 5/5ths for stealing non-Republicans' representation for their opponents. And, as has been a feature of American life, through those previous corruptions, the ability to sway presidential elections through the filthy dirty scheme of the Electoral College. All of those issues immediately prevented the provision that would have theoretically allowed the abolition of the slave trade after two decades from the drafting of the document, probably the most insincere of all of the many insincerities of the Constitutional Convention.* As can be seen throughout American history, any attempt at equality, equal justice and economic justice have and still do have to fight uphill against those corruptions. But now we have come to the thematic quote in its setting. I will not again, for now, go into the terrible record of the Marshall Court, even after importation of slaves was outlawed, flouted the law from the bench.
Even the destruction of the slave trade had an economic basis, although much was said at the time about the ethics of the clause. In the North where slavery, though widespread, was of little economic consequence, sympathy with the unfortunate Negroes could readily prevail. Maryland and Virginia, already overstocked with slaves beyond the limits of land and capital, had prohibited the foreign trade in Negroes, because the slave-holders, who predominated in the legislatures, were not willing to see the value of their chattels reduced to a vanishing point by excessive importations. South Carolina and Georgia, where the death rate in the rice swamps and the opening of adjoining territories made a strong demand for the increase in slave property, on the other hand, demanded an open door for slave-dealers.
South Carolina was particularly determined, and gave northern representatives to understand that if they wished to secure their commercial privileges, they must make concessions to the slave trade. And they were met half way. Ellsworth said: "As slaves multiply so fast in Virginia and Maryland that it is cheaper to raise than import them, whist in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards South Carolina and Georgia. Let us not inter-meddle. As population increases; poor laborers will be so plenty as to render slaves useless."
So there it is, the rice swamps of Georgia and South Carolina, the high numbers of slaves worked to death in them discussed openly, proving that was a known fact to the "founders". And them enabling that to continue so as not to be "unjust" to the rice barons of those states, permitting them to work to death ever more kidnapped, enslaved Black People was encompassed in the Founders concept of justice but abolishing slavery was not. That was certainly to be reproduced in the notorious sugar plantations which hadn't yet become common in the United States and in other instances. Nor does it account for the impending boom in the cotton industry due to the invention of the cotton gin seven years later and its ever increasing demands for more slaves. And that was even as they insisted that the slaves they worked to death be counted toward the representation that the white aristocratic slave owners got in the Congress and, also, the Electoral College, the same species of election rigging that the Roberts Court is re-instituting as the Court allowed to rise again during the entire Jim Crow period - which persisted even after the Voting Rights Act started to be implemented - on their reading of the Constitution. Only, as mentioned, under the updated version of 3/5ths, they get to count 5/5ths of those prevented from voting in order for them to represent the white supremacists who run those states and those who gerrymander and vote suppress. So under Roberts-Alito era Jim Crow, they can have even more stolen power in Congress and in the Electoral College.*
We're talking about the Krupps and IG Farbens of 18th century America whose interests were so tenderly represented in the Constitutional Convention, with Northern financial interests taking up their cause.* That Oliver Ellsworth anticipated the day when poor whites would take the place of enslaved blacks, no doubt anticipating the economics of using up and killing off workers you weren't allowed to access as your personal property, is not a surprise. Have I mentioned he was one off the vilest of the idolized founders?
Here is more about Ellsworth from page 196:
No member of the Convention distrusted anything savoring of "leveling democracy" more than Oliver Ellsworth. Later as Chief Justice he denounced from the bench Jefferson and the French party as "the apostles of anarchy, bloodshed, and atheism." In the Convention, he opposed the popular election of the President and favored associating the judges with the executive in the exercise of a veto power of acts of Congress. He believed in the restriction of the suffrage to those who paid taxes. He was a warm advocate of judicial control, in general, and thoroughly understood the political significance of the system.
For anyone who has some feeling that the hatred of the common People and the thirst for judicial power was totally unprecedented when later courts started grabbing the power which the Roberts Court is using to produce something closer to Ellsworth's theory of government than Lincoln's. Since he was appointed by Washington, you cannot disassociate Ellsworth's previous thinking from him and from the Senators, including "founders" who confirmed him to the position.
I do have to say that reviewing Beard's book and looking up his citations which I can find in my currently limited online time (bless archive.org, Project Gutenberg, etc.) I have a far greater appreciation for how terrible the Federalists were and that the 1800 Jeffersonian revolution was a necessary though far from adequate corrective to the original Constitution whose early history shows just how bad the original document was. The corrupt manner of its adoption, not to mention its drafting, the anti-democratic and corrupt character of it and the truly stupid features embedded into it figure heavily in both the political, partisan and judicial histories of the first years of the United States - all of that containing features that still, when translated into current terms, are in the most serious need of amending out of existence because they endanger the possibility of democracy and equality and justice.
The question of whether or not the states would have possibly formed a federal government under something that took the terms of the Declaration of Independence seriously is never asked. The lie that they had the intention of creating a government in which all people would be equal and equally endowed with rights is never faced. When they got the chance to put a federal government in place they did no such thing. They reneged on the stated intentions of the Declaration of Independence. Their intentions from 1787 should certainly be considered something we don't have to pay any regard to, "originalism" is a theory invented to destroy any progress that has been made towards equality and democracy by reestablishing the very thing which that struggle had to be waged against. It was clearly a most corrupt deal from the start. And it was on just that basis that the propaganda for the adoption of it was argued to the propertied white men who were the only ones (and a minority of even those) who ever got a voice in its adoption.
There is no rational reason for anyone who doesn't favor the kind of vile inequality that Oliver Ellsworth, General Charles Pinckney who said similar things on that point [p.177] and a number of other viciously anti-egalitarian "founders" obviously held to, to tolerate any call for any return to the status quo of the "originalists" who are, to a person, pro-wealth, white-supremacist and an enemy of equality and equal justice. It is as idiotic an idea as the idea that Samuel Alito dipped into witch burning, husband-rapist supporting Stuart era judges in the England that the Founders broke away from to come up with his overturning of Roe vs. Wade. There is no reason that the vilest characters who have been dead for more than two hundred years should have a say in the character of the American government today. Certainly their will being imposed on on anyone who wasn't a. white, b. male, c. propertied (in most cases actually affluent in the terms of the time) d. a male white supremacist (taking into account that two on the current court are a Black Man and a Woman). No one should feel under any obligation to have their self-interested bigotry and immorality rule us from the grave.
The milquetoast liberal resort to pretending that the document that has kept us from equality and equal justice, economic justice, embodied those principles is a desperate lie. Any of that content had to be forced onto it by later agitators and organization. It has always, with the fewest exceptions been used to swing us back to inequality injustice and economic injustice whenever progress is briefly made with enormous effort and sacrifice. It will until it is basically changed or ripped up and a new government based on us learning the lessons of the terrible history of life under the Constitution, faced full on, especially looking at the way the Supreme Court has used that document to thwart equality and equal justice. It is and always has been, along with the Senate, the primary enforcement mechanism of the oligarchs against the interests of We The People as they insist on being opposed to us and our rights.
* I pointed to this quote by Hamilton in one of the Federalist Papers before in response to a champion of Hamilton as imagined by Lin-Manuel Miranda, from The Constitution A Pro-Slavery Compact by Wendell Phillips.
The first thing objected to is that clause which allows a representation of three fifths of the Negroes. Much has been said on the impropriety of representing men, who have no will of their own. Whether this be reasoning of declamation, I will not presume to say. It is the unfortunate situation of the Southern States to have a great part of their population, as well as property, in Blacks. The regulations complained of was one result of the spirit of accommodation which governed the Convention; and without that indulgence, no Union could possibly have been formed. But, sir, considering some peculiar advantages which we derived from them, it is entirely just that they should be gratified. The Southern States possess certain staples, (tobacco, rice, indigo, &c.,)which must be capital objects in treaties of commerce with foreign nations; and the advantage which they necessarily procure in these treaties will be felt throughout all the States. But the justice of this plan will appear in another view. The best writers on government have held that representation should be compounded of persons and property. . .
Keeping in mind Hamilton was an anti-democrat who believed the rich should govern, encouraging monarchy and one of the most dangerous men in the country at the time he picked a fight with another dangerous man, Aaron Burr.
Hamilton certainly knew about the issue as discussed in the Convention, he knew what was generally known that he was advocating northern financial interests make money off of the deaths of slaves in those death camps.
Anyone who wonders why Elie Mystal has such a low opinion of the Constitution can't know the actual history or the contents of it. The lies we've all been taught and told and absorbed from fiction and show-biz about the Constitution is one of the greater mass delusions. The citing of "1776" the Gadsden Flag, and other clap-trap from that mythology as Republican-fascists and Trumpzis tried to hijack the dangerous Electoral College process proves that it is actively dangerous. If you take comfort in their failure in 2021, the Supreme Court is about to let them accomplish the same thing in the Southern and other states dominated by Republican-fascists, just in case you think electoral democracy is safe in their filthy hands. The great irony for anyone who has read what the "founders" really said would know that it was exactly the Trumpian rabble violently taking power that was why so many of them hated democracy. It proves how empty and banal and meaningless all of that clap trap is.
* Here is what John Quincy Adams in an Address at North Bridgewater, November 6, 1844 pointed out about the 3/5ths provision as a power grab by the slave power:
You are told that this is no concern of yours, and that the question of freedom and slavery is exclusively reserved to the consideration of the separate States. But if it so be so, as to the mere question of the right between master and slave, it is of tremendous concern to you that this little cluster of slave owners should possess, besides their own share in the representative hall of the nation the exclusive privilege of appointing two fifths of the whole number to the representatives of the people. This is now your condition, under the delusive ambiguity of language and of principles, which begins by declaring the representation of the popular branch of the legislature a representation of persons, and then provides that one class of persons shall have neither part nor lot in the choice of their representatives; but their elective franchise shall be transferred to their masters, and the oppressors shall represent the oppressed. The same perversions of the representative principle pollutes the composition of the colleges of electors of President and Vice President of the United States, and every department of the government of the Union is thus tainted at its source by the gangrene of slavery [in post-Civil War terms, "white supremacy" works even more in their favor].
Fellow-citizens, - with a body of men thus composed for legislators and executors of the laws, what will, what must be, what has been your legislation? The number of freemen constituting your nation are much greater than those of the slaveholding States, bond and free. You have at least three fifths of the whole population of the Union. Your influence on the legislation and administration of the government ought to be the proportion of three to two. But how stands the fact? Besides the legitimate proportion of influence exercised by the slaveholding States by the measure of their numbers, there is an intrusive influence in every department by a representation nominally of persons, but really of property, ostensibly of slaves, but effectively by their masters, over-balancing your superiority in numbers, adding two fifths of supplementary power to the two-fifths fairly secured to them by the compact, CONTROLLING AND OVERRULING THE WHOLE ACTION OF YOUR GOVERNMENT AT HOME AND ABROAD, and warping it to the sordid private interest and oppressive policy of 300,000 owners of slaves.
And that imbalance through vote suppression is magnified in the Senate where a handful of tiny states can kill massively popular legislation, Democrats' votes are regularly nullified under the provisions allotting power in the Senate on the basis of state and not numbers of voters. That has gotten steadily worse as the country grew, adding tiny population states, especially in the central West to those older ones in the East such as Vermont and Maine. The thing is rigged to prevent democracy and equality.
** I remember "Washington was good to his slaves," being said by a third-grade teacher. My beloved fourth-grade teacher, a fiery tempered Irish Catholic with a great sense of humor - my only Catholic teacher till I reached high school - didn't hold with such bullshit. She concentrated on geography instead of history, probably for that reason. I remember she liked me naming FDR as one of my heroes (my parents loved him), she was probably the first Democrat I had as a teacher, too.
It should be said, however, that Marshall no longer 'idolized democracy,' as he declared he did when as a young man he addressed the Virginia Convention in 1788. On the contrary, he had come to distrust popular rule as much as did most Federalists. Albert J. Beverage The Life of John Marshall, Volume 3
RECENTLY FORMER SUPREME COURT "justice" Stephen Bryer was asked if there was any Supreme Court precedent that was safe from the Roberts-Alito court, Bryer quipped "Marbury v Madison?" Which is, of course, one of the unquestionable cases listed by Amy Coney Barrett when she was asked which cases were beyond being overturned by the Court, though she listed others that I have no doubt wouldn't be safe. She as several of the others in the majority on the Dobbs decision blatantly lied about Roe v Wade being safe as it was a well settled issue of the court. And everyone knew each one of them lied as the lied it, including Susan Collins.
The Supreme Court is not likely to ever give up a power which is found nowhere in the Constitution but which they have successfully grabbed and exercised, increasingly, against the representatives of the voters, which the Roberts Court is exercising on behalf of their majority's party, the Republican-fascists, in order to maintain their power even against the will of a majority of Americans. That power will have to be pried away from them by the democratic branches of the government or by The People, eventually, probably after much bloodshed and a possible but no means certain attempt to actually establish an egalitarian democracy.
John Marshall had been seeking to gain powers not found in the Constitution for the Court for several years by the time he worked a minor case which no one no longer cared about to achieve his ends. He knew that among those we was working against was Thomas Jefferson who was the president in an election which ended the electoral power of Marshall's Federalists in elective office and James Madison, one of the chief authors of the Constitution he had to claim to be acting under. Just how outrageous that got can be seen in a pages long quote Louis Boudin gave in his Government by Judiciary from Senator Beverage's biography of John Marshall which made this point about his claim that a part of a previous law passed by the First Congress unconstitutional, one of several extraordinary steps he had to take to gain that power for the court:
No matter which horn of the dilemma Marshall selected, it was hard to see how his views could escape impalement. He chose neither. Instead of allowing his cherished purpose of establishing the principle of supervisory power of the Judiciary over legislation to be thus wounded and perhaps fatally injured, he made the decision of this insignificant case about which the applicants themselves no longer cared - the occasion ofr asserting that principle. And he did assert that principle - asserted it so impressively that for more than a century his conclusion has easily withstood repeated assaults upon it, which still continue.
Marshall accomplished his purpose by convincing the Associate Justices of the unconstitutionality of that section of the Ellsworth Judiciary Act of 1789 which expressly conferred upon the Supreme Court the power to issue writs of mandamus and prohibition, and in persuading them to allow him to announce that conclusion as the opinion of the court. When we consider that, while all of the Justices agreed with Marshall that the provision of the Ellsworth Judiciary Law requiring them to sit as circuit justices was unconstitutional, and yet refused to act upon the belief as Marshall wanted them to act,* we can realize the measure of his triumph in inducing the same men to hold unconstitutional another provision of the same act - a provision, too, even less open to objection than the one they had sustained.
The Theory of the Chief Justice that Section 13 of the old Judiciary Law was unconstitutional was absolutely new, and it was as daring as it was novel. It was the only original ideal that Marshall contributed to the entire controversy. Nobody ever questioned the validity of that section of the statute which Marshall now challenged. Ellsworth, who preceded Marshall as Chief Justice, had drawn the act when he was Senator in the First Congress; he was one of the greatest lawyers of his time and an influential member of the Constitutional Convention.
One of Marshall's associates on the Supreme Bench at that very moment, William Paterson, had also been, with Ellsworth a member of the Senate Committee that reported the Judiciary act of 1789, and he, too, had been a member of the Constitutional Convention. Senators Gouverneur Morris of New York, William S. Johnson of Connecticut, Robert Morris of Pennsylvania, William Few of Georgia, George Read and Richard Bassett of Delaware, and Caleb Strong of Massachusetts supported the Ellsworth Law when the Senate passed it; and in the House James Madison and George Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of Connecticut heartily favored and voted for the act. Most of these men were thorough lawyers and every one of them also helped draft the National Constitution. Here were twelve men, many of them highly learned in the law, makers of the Constitution, draftsmen or advocates and supporters of the Ellsworth Judiciary Act of 1789, not one of whom had ever dreamed that an important section of the law was unconstitutional.
Furthermore from the organization of the Supreme Court to that moment, the bench and bar had accepted it, and the Justices of the Supreme Court, sitting with National district judges, had recognized its authority when called upon to take action in a particular controversy brought directly under it. The Supreme Court itself had held that it had jurisdiction, under Section 13, to issue a mandamus in a proper case, and had granted a writ of prohibition by authority of the same section. In two other cases this section had come before the Supreme Court, and no one had even intimated that it was unconstitutional. . . .
The outrageousness of the claim by Marshall and his majority in claiming that unconstitutional power for the court, on the basis of the Constitution IN CLEAR OPPOSITION TO THE DEMONSTRABLE DISAGREEMENT OF SUCH A LARGE NUMBER OF THE DRAFTERS OF THE CONSTITUTION is impossible to overstate. The fact that he had run into the very Act when he tried to call his fellow justices to mutiny against the Congress a couple of years before IN WHICH THEY CITE THE PROVENANCE OF THE ACT AS REQUIRING THEM TO FOLLOW IT only strengthens the point, also from slightly earlier Beverage's biography.
When the Republicans [Jefferson's party, not to be confused with what has become the Republican-fascists] repealed the Federalist Judiciary Act of 1801, Marshall had actually proposed to his associates upon the Supreme Bench that they refuse to sit as circuit judges, and 'risk the consequences.' By the Constitution, he said, they were Judges of the Supreme Court only; their commissions proved that they were appointed solely to those offices; the section requiring them to sit in inferior courts was unconstitutional. The other members of the Supreme Court, however, had not the courage to adopt the heroic course Marshall recommended. They agreed that his views were sound, but insisted that, because the Ellsworth Judiciary Act had been acquiesced in since the adoption of the Constitution, the validity of the act must now be considered as established. So Marshall reluctantly abandoned his bold plan, and in the autumn of 1802 held court at Richmond as circuit Judge. To the end of his life, however, he held firmly to the opinion that in so far as the Republican Judiciary Repeal Act of 1802 deprived National judges of their offices and salaries, that legislation was unconstitutional.
It should be noted that Marshall's opposition to a situation that had been in place since the First Congress seems to have begun after the Jeffersonian revolution which toppled Federalist power on the national level. I would be curious to find out what he had to say on this when it was Federalists who operated under the law that came back into effect after the repeal of the last-minute Federalist Judiciary Act of 1801, put into place, certainly, so that the Federalist dominated Federal judiciary could rule by fiat against the elected branches of the government, elected by The People who turned out Federalists from power. Certainly that will feel familiar to those of us who have watched the Rehnquist and Roberts Court during the terms of Democratic presidents and Democratic congresses.
That the facts of the issue proves the Constitution as it was even under its early years of operation was quite a mess and that the very idea of "originalists" that the power they exercise to destroy things like the Voting Rights Act, to reimpose Jim Crow law in Republican-fascist controlled states comes from the Constitution is so absurd on its face that I can't begin to imagine how honest people, with this history available to them, could go along with the power grab. Why we still will be putting up with it as the Roberts Court re-legalizes Jim Crow as they have nationalized Women's bodies and lives doesn't speak well for the conventional wisdom in such matters.
Marbury vs. Madison has to be gotten rid of, we have to have a Supreme Court more like those of other functioning democracies, none of which have that self-created power and they seem to get by without devolving into the kind of despotism we have certainly had in many regions of the country for almost our entire history. Though as most of that history is invented, promoted and imposed from above, it's not on The People who have been lied into believing in the sanctity of the Founders generation or the integrity of the Supreme Court.
Note: Don't think I have any high regard for Oliver Ellsworth, among the worst of the Federalists from the start. I'll have more to say about him in a future post. You can consider these posts as having the goal of attacking the cult of the founders, the founder's fetish that rules our myth-based popular conception of the Constitution and the Supreme Court and all that stuff.
I CAN REPORT that "herd immunity" is bullshit because you can get covid-19 more than once and a second bout (even while being boosted) can make you wonder if you're about to give up the ghost. I was so sick on Sunday night that I was thinking of calling 911 but couldn't afford it if I lived, a hearse would be cheaper. The fever was so high that I figured I might not want to survive it. I definitely lost weight because for three days I couldn't stand the thought of eating, losing my sense of taste temporarily. I didn't even feel like drinking coffee, that's practically a symptom of impending mortality when you're as addicted as I am. My brother pointed out that no one is more careful than I am about social distancing, so anyone can get it even if they are vaccinated and careful. We're far from out of it, I doubt we ever will be unless they come up with the kind of vaccine of the kind that they can't get for other viral illnesses, so far.
This has been one lousy year after a series of them. Drought, disease, Dobbs and the rest of the goddamned Supreme Court session. I've ended my study of Jeremiah and have decided to hold onto the Lamentations until the end of Lent. I've decided to go through Luke again. I need a lighter yoke for a while.
I curse Trump and the Republican-fascists for their role in spreading lies about Covid-19, I curse Murdoch and the other fascist media and the complicit-middle-roader media that helped them while pretending they weren't. Most of all I curse carnivores who will, I am afraid, end up killing us all to feed their appetites for mass-imprisoned, slaughtered animals, the origin of so many of the worst pandemic diseases and the murderers of wild animals who are the origin of so many of the deadlier and less widespread ones. I really do blame them all, them and the Darwinists who came up with such a stupid idea to start with, championed by right-wing idiot-economists and lawyers who pretend they're scientists.
Yeah, I'm sore from too much time in a reclining chair and feeling cranky. Doesn't mean that what I said isn't sincerely meant or true.
