Is There Hope For Feminism After Trump?

I've got a large body of unfinished - well as unfinished as my writing usually gets - writing to post.  The problem with being forced to take a week off due to computer problems is that the world goes on.   Instead of that I'm going to post a conversation between Rebecca Traister and my beloved Harry Litman titled Is There Hope For Feminism After Trump because they bring up several things that I think are important innovations that I hadn't realized had been articulated as publicly.  

One is something I've thought was stunningly obvious but seemed to be entirely lost on most of the People I've heard babbling and read scribbling about these things THAT THE POST-CIVIL WAR RECONSTRUCTION IS REMARKABLY LIKE WHAT WE'RE LIVING THROUGH NOW.  I would go a lot farther than I think either of them would in that I think it's the absolute proof of the danger of the anti-democratic dangers built into the Constitution and the form of government in the United States.  The ease with which America's indigenous form of fascism, white supremacy, restored de facto slavery in many places and America's peculiar form of apartheid and the manipulation of racism as a means of oligarchic control through the Senate, through the Electoral College (the mechanism with which the slave-holders and their agents ended Reconstruction) and the media promoting racism as the tool of abolishing any move toward egalitarian democracy with the full and aggressive support of the Supreme Court, the third and most anti-democratic branch of the federal government.

Lots of what Traister and Litman say is a lot like what I've been writing since I started this only they don't go as far as I think is warranted by the facts and justified by the danger we are in.   They sound something like I probably did around 2002. 

I don't think we're ever going to be safe from what we've now seen overturn the major movements for egalitarian democracy in the United States SUCCEED TWICE.   And the mechanisms for doing that are the anti-democratic features of the Constitution and the license given for the mass media to promote and generate lies with impunity.  I doubt that is something that a professional journalist is going to have the courage to admit and write about, certainly not in the New York Times which, on the anniversary of the Sullivan Decision covered itself with kisses for having gotten the right with which, in the final weeks of the 2016 election, published even more lies about Hillary Clinton which probably got Trump over the line to lose the election in a way that would give him the presidency.  It was just part of the decades long lie campaign and campaign of mean girl vilification of her that the Great Gray Drab published about her with its Sullivan Decision "rights" to publish lies about Democratic politicians.  People are such suckers for that rag.  

Hate Mail - Continued

IT IS IMPORTANT to go back to something I'd planned on being what I posted this week instead of what I have, continuing with Luke Timothy Johnson's fine lecture on the paradoxical nature of Christian freedom, focused on the letters of Paul.  I think his short conclusion to his lecture says pretty much everything, especially noting what he said we should be shocked at.   Remember this is my transcription of the video, so it is probably not exactly as he would have written it out.

I have a very short conclusion.  

Catching even a glimpse of the paradoxical character of Christian freedom should cause us, today, to consider our conformity or our lack of conformity to the sort of discourse that many of us have allowed to dominate our lives, unaccustomed as we are to seek our true identity not in political or social allegiance but to the truth of the Gospel.

We have reason to pause over our casual ascription of sin to social systems without acknowledging the deeply resistant power of the flesh and sin within each of us as individuals.

We have reason to be shocked at the premise that human freedom comes from the writing of laws, even constitutions rather than the presence and power of God's Holy Spirit.

We have reason to be stunned at the way The Good News recognizes rights but regards them as secondary and relative.  

Above all we have reason to be stimulated to think hard about the ways in which freedom for which God has freed us might be of service to others and their interests rather than our own.

Where I would part company with Luke Timothy Johnson is in the assertion that rights are secondary but only if by "secondary" you mean not to be asserted and struggled for and won, the experience of human beings is that asserting that will inevitably lead through centuries and millennia of those rights being deferred.  

They might be considered secondary to their greatest use, which is found in his last sentence, not least of which is that the only safe and real means of being fully free politically, the context of "rights," is through those being used to secure them and their benefits universally.  Benefits experienced and lived materially, socially, legally and spiritually.  Perhaps a really egalitarian democratic United States arising, however seemingly improbably from the libertarian catastrophe we are in now will show how to make both real, finally.   Though it's well worth considering how they could be considered secondary to their greatest use because their existence is necessary to their support of their use for the good of others.   Perhaps it's better to say that they don't gain their full good until they are used to that end.

I think in that you will find a more ample and succinct foundation for a "more perfect union" than the secularizing constitution framers  did.  I have noted before that when that intellectual giant (though entirely fallible man) Thomas Jefferson was coming up with an apologetic  justification for the American colonies declaring their independence from Britain, that quasi-deistic materialist man of "enlightenment" fashion found he had no choice but to explain the existence of rights and a right to freedom as an endowment from God.  I followed Marilynne Robinson in noting that it would be hard or impossible to come up with a purely secular statement of that as found in the Declaration of Independence, issuing it as a challenge to any atheist or even conventional devotee of political secularism to give us the language of such a declaration.  No one tried.

I said and still say that it is impossible to come up with a durable and effective statement of anything like rights or freedom or, in fact, the possibility of freedom and rights without rejecting a materialistic framing of human existence because there is absolutely nothing within atheism or materialism or even namby-pamby conventional secularism that isn't, in the end, a flabby and self-destructive assertion of freedoms and rights.  I find the character of all officially atheist and materialist regimes as deadly, enslaving dictatorships to be unsurprising due to that, I find the weakness of secularized societies in maintaining egalitarian democracy, especially in the face of pressures and dangers to be most fully understandable in their rejection or ignoring what I've put in the last two sentences of Luke Timothy Johnson's lecture.  The present day secular orthodoxy of not only the legal and judicial establishment has certainly not been any more careful or attentive to the necessities or benefits of egalitarian democracy than the representatives in the Federal government or many of those in the various states.  

Of course you can point to the "white evangelicals" the "traditional-catholics" and others who voted for Trump from an allegedly Christian point of view.  I would point out that it should not miss your attention that Luke Timothy Johnson was addressing an audience at a Catholic college, introduced by faculty from that college and that his critique of the widespread mischaracterization of Christian freedom and its associated holdings is most fairly read as an internal critique.  His handling of the deeply disturbing language of Paul and even of Jesus in terms of the enslavement of human beings shows how deep that internal critique is.  If that has ever happened on as deep a level in atheist, materialist or secular handling of these issues with the result being that there is something wanting in our understanding of those as self-jepoardizing as their fundamental ground-floor holdings of belief, I'd like to see it because I never have seen those, certainly none that come away with holding that human beings are capable of freedom and that there is such a thing as inalienable rights that are universally and equally the possession of every human being.  The problem of trad-catholics and white Bible-thumpers and their ilk is that THEY GO FOR THE TRAPPINGS OF CHRISTIANITY WITHOUT EVER ENTERTAINING THAT THEY ARE "TO BE OF SERVICE TO OTHERS AND THEIR INTERESTS RATHER THAN" THEIR OWN.  That the enlightenment founders rested their efforts on something to be regulated on the basis of what was sloganized "enlightened self-interest" without the Biblical moral wisdom of egalitarian good will and charity might usefully be seen as the basis of where America as a "democratic experiment" went totally wrong.  And there is no way you'll ever get past self-interest on the basis of atheism, materialism or secularism.  Even secular expressions and explanations of acting in the public good comes down to self-interest and that's never enough to really work in the long run throughout a large society or even a small one.  The language of civil rights in even the secularists can never seem to manage without some paraphrase of Scripture or theology.  I think there's a reason that even they have to look to it to find the right words, just as Jefferson the deist had to cite God in explaining a right to freedom from royal oppression.  That's where it always has to come from, an assertion that those come from the one who made us as we are.  Show me the language if you think it doesn't.  

"Where does this come from?" - More Hate Mail

I HAVE NOT MADE a thorough study identifying the hagiographic sanctimony that grew up around the Supreme Court as embodied in the reporting of it by someone like Nina Totenberg or that made-for-TV movie about the Brown v. Board decision or movies allegedly documenting Thurgood Marshall's career (anyone who mistakes any movie for an adequate substitute for actual history and honestly told biography is a sap) to test my suspicion that at least a good part of that is motivated by those with an interest in keeping the Supreme Court as the anti-democratic force for wealth and oligarchy and, yes, white supremacy that it has been in most of the years of its existence.   And in the case of, especially, white supremacy, those scores of years far outnumber those when they didn't and the anti-democratic features of the Constitution have, as intended in the First Constitutional Convention, magnified the power of white supremacy through our history.  

Of course anyone who has benefited from the majority of Supreme Court decisions over the roughly two-hundred thirty years it has been active  has an enormous interest in keeping it from being reigned in to serve in stead of thwart equality and democracy.  The wealthy, most of all, and being made more powerful by the inherent ability of great wealth to foment great corruption on its owners behalf, are those who have had the power to erect that false front of published, filmed, broadcast sanctimony and mythology about the Court.  If the Koch brother's wet-dream of an oligarchic-controlled second Constitutional Convention came about, I am certain that the Supreme Court would not lose a bit of their power to abolish federal legislation through a fiat of a simple majority on that Court.  In the large majority of cases I've ever known of, that power has been used to support the unequal distribution of wealth and the enhancement of the wealthy to get more wealth at the expense of workers and others and, certainly at the expense of sustaining of a livable environment and their in support of the wealthy's license to enjoy what they can get with their wealth.  That's probably even more obvious in the actual record of the court than the fact that the Supreme Court has been, if anything, more supportive of white supremacy than the filibuster ruled Senate has been in its own sordid history.  It is not unremarkable that the parts of the Federal government which are, by Constitutional provision and supporting adopted laws and internally constructed rules are the most corrupting of equality and, so, of real egalitarian democracy.  I don't need to do a hell of a lot of historical and documentary research to come to that conclusion because it is the history of human kind, nothing but a real egalitarian democracy has ever not produced what was in line with governance of a neighborhood or area or state or empire by actual gangsters.  Anything in the United States Constitution, from Supreme Court  fiat or duly adopted laws that does not support equality and democracy is part of that long history of rule by gangsters, no matter how clean their hands and fingernails, no matter how credentialed by Ivy League or other elite training grounds of oligarchy, no matter how perfumed they are or are anointed by cultural or religious hierarchies or their own, internal professional establishments.

We The People have been gulled and suckered by the trappings of respectability and the phonied up history we have been taught but most of all by the theatrical, cinematic and other fictional presentation of American history.  We are coerced and suckered into believing or going along with the conventional piety given to the Supreme Court, to the "traditions of the Senate"* and by the treatment of the presidency, when it is a Republican or even Republican-fascist who has been president.  I am struck at how different the treatment of Joe Biden has been this week in regard to the attack on, not the United States BUT ON ANOTHER COUNTRY and the treatment of George W. Bush when his own administration, Condi Rice and others, ignored the warnings of the attack on 9 11 happened here.  It's especially striking considering the known fact that the Republican-fascist Trump gave information about Israeli intelligence service to the Russians that may well have led to the king of its fabled intelligence services in just the way that caught the Netanyahu government so off-guard.  That is typical of how the fabled "free-press" of the United States has acted for my entire lifetime.  I made a reference to that in the exposure of first Senator John Kennedy and then President Kennedy in the ghost-writing of Profiles in Courage.  You can compare that to the fact that virtually every book "written" by any of the Republican presidents is even more obviously ghost-written.  Look how long it took for "The Art of the Deal" to be widely noted to have had no content written by the likely functionally illiterate Donald Trump.  

It is one of the most disillusioning experiences of my life to have read the direct, unfiltered thinking of many thousands of supposedly educated Americans, from supposedly far left to far right to read how superficial their thinking on things is and how gullible they are outside of their narrow area of professional expertise.  They almost all watch the movie instead of reading the book.  They don't test ideas, they absorb them like a paper towel and the resulting belief might be persistent but it is about as strong as a wet Kleenex.  And those are the ones who are supposed to be more aware of things.  Our TV and now internet addled population are not capable of sustaining democracy, though the strongest pillar of democracy, the one which is absolutely essential to it, a sense of fairness, a notion that equality is right and that privilege is wrong is probably the most durable of all of the moral bases of democracy.  It is certainly stronger than that other essential moral truth, that those with more must share with those without or their own surplus will rot their souls.  I am certain that idea has been taught and educated out of the majority of those who have gone through a legal training, "the law," that is the secular law being quite a different thing than The Law of Moses or its equivalent in other moral traditions and, certainly, that of Jesus which is the most extravagantly egalitarian and leveling that I'm aware of.  It being so novel that hardly any Christians have really tried to follow it.   

I have relied on Louis Boudin so heavily because he did such good work over several decades assembling the evidence and the record, the citations and the rational analysis to support the radical reformation of the Supreme Court in one of its most corrupt periods.  I know it is claimed that Clarence Thomas is the most corrupt Supreme Court "justice" in its history and he certainly is among the most corrupt, he was put there by two oligarchic families, that of the Bushes, among the most corrupt in the history of the Country, and of John Danforth whose ordination to the Episcopal priesthood doesn't seem to have resulted in him having anything like an informed conscience.  But I don't think the corruption of Clarence Thomas is all that remarkable.  As I have noted the most august of all Supreme Court "justices," John Marshall was a fast holder of Black People in slavery and his Supreme Court decisions always enhanced the institution of slavery and, so, always enhanced the wealth of him, his family and his friends at the expense of Black People held in slavery, Black People who were abducted into slavery and those who opposed the enslavement of human beings.  I have no doubt that if he could Thomas would do the same if he thought it benefited him, he has been a stalwart of white supremacy during his entire sordid career in the law.  He has certainly done something very similar to Women and would love to do the same to LGBTQ+ People.   But in that he is merely typical of those who have sat on that Court, the only novelty is that he has done so while being Black just as Women who have sat on that court have ruled as they did while being female.  

I was asked what I'd change, the first thing would be to make all Supreme Court members have a term of perhaps ten or twelve years.  Lifetime appointments were stupidly assumed to guarantee that the "justices" of that Court would not be corrupted by self-interest if they had a guarantee of a lifetime job.  That was as stupid as assuming that a king for life would be untempted by money making at another job.  It is remarkable how stupid the founders and the early members of Congress were, considering they'd just overthrown being ruled by a monarch.  

Another thing I would change is making removing a member of the court much easier, automatic if they were convicted of a felony or a serious breach of ethics.  

Since they have usurped the power to nullify federal legislation I would make confirmation of any proposed "justice" be by both houses of Congress.  Giving the power of confirmation to the most undemocratic of the elected parts of the Federal Government has been a guaranteed source of corruption.  One sustained and enhanced by the Rehnquist and Roberts courts.  I would, of course, favor an amendment either abolishing the Senate and expanding the House of Representatives or to make it democratic.  I don't see any reason for there not to be Senatorial districts that surpass the boundaries of states in order to have a truly democratic Senate, if we are to retain it.  I don't see any reason for the states with one or two House Districts to have two Senators while California, New York and Texas combined have fewer Senators than myriads of much smaller states, including the one I live in.  I would, of course, also abolish that tool of corruption in the Executive, the Electoral College, used by crooks and gangsters and oligarchs (such as Jeb Bush) as well as the Republican-fascists of the Rehnquist Court to put the losers of elections in that ultimate seat of power.  It is remarkable to me how little of the coverage of the attempts of Trump to steal the 2020 election ignore that it was by the manipulation of the baroque mechanism of the Electoral College that was such a proven vulnerability of American democracy.  

I would also make it easier to impeach a president than it is now.  If The People disagreed with the impeachment of an impeached president, they could express that disagreement in the next election.  Though I think it should also be a requirement for being president that make having been duly convicted of a federal felony a certain disqualification.  That our Constitution didn't make that a requirement proves that like all human framed institutions ours is certainly at least that far from perfection.  I would change that immediately, encouraging members of the House and Senate to write an Amendment stating that to be adopted as soon as possible.  That Trump could even theoretically be president while serving a prison term as the infamous, though less corrupt, James Michael Curley could have in Massachusetts is absurd.

I would also put it in the Constitution that it is a merely human made thing and will certainly need amendment.  I would make it easier to amend the thing than the absurd super-majority of legislatures method now.  State Legislatures in many of the states are almost guaranteed to be corrupted by our indigenous fascism, white supremacy and by the less expensive corruption of state governments by great wealth in the state or doing business there.  That source of corruption is on full display in many states, North, South, East West and in the middle.  There are states I don't think have proven they are safely considered states under local control. Wisconsin, Louisiana, Texas. . . Generally those have have been the states under the strongest influence of white supremacy.  I am sorry to say many of them the most rural states.  Not finding a way of either improving that situation of insulating the national governance in a more uniformly just manner is, in the short and long run, not an option.    

By the way, to the objection of my use of the honest term "Republican-fascist," the Bush v Gore decision is answered by the necessity of using that if you want to be honest.  Two Republican members of the Court in 2000 voted to let the votes be counted, it was five of them who anointed the loser, George W. Bush.  I wouldn't feel right if I didn't make a distinction between those two and the five who corruptly voted to put Bush II in the presidency.   Considering it was his regime which committed one of the most dangerous crimes any president in our history did, under the regency of Cheney, the invasion of Iraq.  The huge numbers of dead, the regional catastrophe that has been is one of the most deadly of all American crimes, far larger in body counts and pain than the American wars in South East Asia when I was younger. Among the things that accomplished was the enhancement of the power of the theocratic gangsters in control of Iran who, in turn, sustain the gangsters who control Gaza.  The history of Republican collusion with the Iranian theocratic-gangsters goes back to Reagan and his Iran Contra financing of terrorism in Central America, if not the well supported suspicion that his campaign made a deal with the theocrats to not release the Americans they held hostage, though you're certainly not hearing much of that in our "free press" this week as they blame Joe Biden for what happened there. That the same Republicans have been solidly promoting our indigenous form of fascism, white supremacy is not shocking, no more than it was under the Reagan-Bush I administrations that Clarence Thomas thrived and flourished.  Fruit of the poison tree, the poison being permitted lies told and spread by the freest of "free presses."  

And we're back to the ordure on the Court.  Of course I would favor some means of removing their ability to overturn duly adopted federal legislation by the fiat of a simple majority of the "justices" on that court on the basis of its "unconstitutionality."  RMJ suggested in a comment he made here a number of years ago making it necessary for such a conclusion to be unanimous before legislation could be nullified in that way.  Which might be a good experiment to try if the necessity of the Court nullifying plainly unconstitutional legislation is legitimate.  Though I would favor a thorough study of how other democracies which don't allow their Supreme Courts to do that to get better ideas of how to deal with that problem.  I don't think legislatures or executives are any more reliable than the majority in elections are, though they're probably less unreliable to egalitarian democracy than our unelected, lifetime-appointed, nullifying Supreme Court is.    

Anyone who has read much of what I wrote starting in the first weeks I've done this in 2006 would not remember that among other things I favor an amendment to the Bill of Rights stating that there is no such a thing as a right to lie and certainly no "right" for "the press" to lie or to spread lies.  The corruption of the Supreme Court rests on the corruption through advertising of the Presidency and the Senate, in other words through unequal wealth, under the idiotic lie enabling interpretation of the First Amendment of the Constitution.  Any reform of any of the government, no matter how temporarily successful will eventually fall to a regime under which lies can flourish as they have in the United States with the freest "press" and the most flagrantly lying in history.  It is a truth taught by experience that for suckering People and leading them to make decisions and mere choices against their own good, lies are the most efficacious of all things.   That our "founding fathers" and all of the generations of Supreme Court "justices" in our history have not made that a bedrock of the American government is proof of either their willful negligence or their improbable stupidity or their epic corrupt intent from the start.   In the generations under the freest press, the most massively effective and available media in the history of human beings we are seeing the TV and media generated resurgence of fascism and Nazism which was merely temporarily suppressed in some places deputed to be democracies.  We can see Russia go from Stalinism to the several iterations of decadent Marxism in its decline, bypassing a brief flirtation with something like democracy into a managed reestablishment of Stalinism as gangster fascism LARGELY THROUGH THE LIES TOLD BY MASS MEDIA.  We have seen it in places like Italy, like Hungary, in various degrees all over the place.  

"More speech" under the slogan of the ACLU type of "civil liberties" has given us that descent from the high point of American Democracy in the mid-1960s when LBJ got the Congress to adopt laws that should have been part of the Constitution, ensuring a right to vote and a protection of American democracy from white supremacist and political gerrymandering.  The entire time the country has been descending into the resurgence of our indigenous form of fascism, white supremacy, white-supremacy in allegiance to the multi-millionares and billionaires, the Nixon-Goldwater "Southern strategy" which was never merely to attract racists in the formerly Confederate states, under the idiotic slogan of "more speech" and it is still headed that way, if not again under Trump then certainly under someone who is more palatable to more of the Republican quasi-fascists and Republican voting suckers.

-------------

The worst thing that Ruth Bader Ginsburg did was to remain on the Supreme Court when she could have resigned in a timely manner which would have allowed Barack Obama to nominate her replacement and have their appointment be confirmed.  I don't have to go through the reason that that was the worst thing she ever chose to do.  Her excuse that she thought whoever he appointed would be to her right is certainly not invalidated by his nomination of Merrick Garland whose timidity in dealing with the Trump crimes as Joe Biden's Attorney General is enough to give any real Democrat pause about how he would have been as a "justice" on the Court.  While I certainly liked Ginsburg and most of those rulings she participated in that I know about, as well as her dissents,  she more than any other member of that Court in my lifetime has put me off of the kind of adulation that some members of that court have had, including from me.   

I've frequently mentioned the absurd adulation of Oliver Wendell Holmes jr. who the more I read about and read his record in light of his faith in the most vicious aspects of natural selection, the more disturbingly dangerous he seems to me.  I think a large part of his legendary status was due to fictitious presentations about him, a play and movie made from it in the 1930s no small part of that to those of us not initiated in legal lore, other things as fictitious or acceptable to those with a vested interest in his rulings the basis of theirs.  

I've mentioned John Marshall whose character and judicial career can not honestly be separated from his racism, his wealth, his and the basis of both on his choice to become wealthy through slavery which has resonated down the years, he being one of those "dead judges" who still rule us in so many ways while even elected, living people don't.  I think his dishonesty in inventing the Court power to nullify federal legislation as well as the dishonest characterization of the adoption of the Constitution, between his pretense in his official writing claiming it as a product of adoption by all of The People and his admission in his biography of Washington that it was a narrow thing - though he didn't note that it was hardly a result of a free and informed vote of The People - figures also into my decidedly negative view of him.  I certainly don't trust a careful, detailed noticing lawyer who lies about such important things.

Another of those who I was educated to revere and who I agreed with on many issues but who I now see as largely having feet of clay, William O. Douglas, certainly figures into my anti-romantic view of the Supreme Court.  

Even more so, of course, were the many truly awful members of that court over the centuries, so many of them being political hacks as legal hacks, many of them brought up in wealth, trained in elite universities - training grounds of oligarchy - and, as lawyers, first and foremost wanting to get along in the legal establishment while working for those with the greatest ability to pay them large fees and those billable hours.  Just as lower court judges don't want to be overruled by those on higher courts, citing precedence (the mechanism for dead judges ruling us) lawyers don't want to be considered unreliable for those within and without the judicial hierarchy.  There is always an incentive to lawyers to go along to get along, one of the things more than one ex-lawyer has expressed distaste for in why they didn't choose to travel on that particular gravy train.

The ease and comfort with which many of the "justices" I've respected in their collegial and personal friendships with those who regularly did such evil from the bench figures into it.  That the idolized RBG's reported best buddy on the Court was Scalia, they took at least one lavish vacation together that I know of, also colors my view of the legal profession and the courts, right up to the top.  To some extent I have the same opinion of them as I do gangster lawyers who make a lot of money doing the bidding of criminals and enabling their criminality.  I don't respect such people or their profession, at all.

If being unromantic about that, looking at it with a cold eye instead of taking a romantically, amber-gelled view of it makes you uneasy, how much less easy should you be about the gutting of the Voting Rights Act, Roe v Wade, the refusal to stay executions (O'Connor's citing of court schedules in such cases makes me anticipate her going to hell for that and Bush v Gore), any past legislation or court rulings that produced justice and equality instead of injustice and privilege, even legislation and court rulings that sustain life and the environment we live on should we be?  It's part of growing to real adulthood to abandon false romance and attractive lies.  The difficulty and unpleasantness of that is probably why the United States has been gulled into the kind of unrealism that is the entire motive of Trumpian fascism.   Even the fact that the very media that sustains that unreality has to note that his entire substance and power is the lies he and his supporters tell, gulling the susceptible with those lies has not made them face the truth of the Supreme Court freeing the very media that created the Trump most of his believers carry of him to lie with impunity. That is probably the most glaring flaw in the Constitution that there is, and yet we can't face the necessity of correcting that to protect anything good about the United States.  

* I would bet my entire life's savings that almost all American's idiotic and ahistorical idea of the Senate filibuster was formed by that stupid Jimmy Stewart performance than any part of the reality of what that has meant in our country.  Any good it has done is so far outweighed by the evil it has produced as to make that movie white-supremaicist propaganda.  Our view of the mythological impeachment as a safety valve on presidential or Supreme Court "justice" corruption is only slightly more a fantasy.  

 I'll leave it to you to decide, do I answer Simps and feel cheap or do I not answer him and feel nothing?

In The End It Has To Be More Than Meets The Eye - On My Second Viewing of Juliet Of The Spirits

AFTER FINDING A VERY GOOD quality and I'd guess entirely pirated online posting of Frederico Fellini's Juliet of the Spirits and watching it, I wondered how long ago it was I watched an entire feature-length movie.  It's been long enough that I don't remember.   I was never a devoted movie-watcher, either in theaters or on TV or video. Lots of movies I saw were on TV, especially whenever they were on a public TV station where you wouldn't have to watch commercials.   Don't even know if they do that anymore now, having given up TV entirely when they made the switch to HD. 

I watched most of Fellini's movies as I could see them and saw Juliet of the Spirits once, as I recall with subtitles a few years after it was made.   The one I saw online last weekend us far better quality than the copy I watched and didn't have subtitles so I understood very little of the sound track except for a little in French and a tiny bit in English.  My knowledge of Italian isn't very good, at all.  But I was struck at how little I needed to understand of what was being said to understand what was going on.  A lot of that was because of the very fine silent acting of Giulietta Masina (Fellini was her husband)  whose expressions expressed that she was always looking past what was being said and done around her.  It confirmed what I concluded, the characters in the movie were either spouting useless nonsense or lies (her husband the biggest liar in the movie) that demonstrated the banal futility of their lives.   Watching it with such hazy memories of the text was something like my experience of trying to learn to understand spoken, vernacular Spanish by watching telenovellas only on a far higher level.   I didn't need to understand much about who the bad girls and guys were, you'd have to be a stupid as a Republican to not get it from the costumes and makeup.   The central story of Juliet becoming aware of her husband's infidelity and her reaction to that and getting past that isn't that much different and it's almost incidental to the substance of the movie, so little is actually made of it.   It was an interesting choice that in the last scenes of the movie, it was her own mother who tried to stop her from making that break. 

Watching it made me remember something I'd concluded from watching his other movies, that they are mostly a documentary and commentary on the vapid materialism and emptiness of post-WWII mainstream materialism.  Unlike the reaction to the corruption of church and government in the Reformation, the materialist reformation of the 20th century didn't try for anything that would be better, it was more of a surrender to what made institutions secular and church objectionable to start with.  I can't say that I find there's any positive recommendation for living a better life in any of it.  I find that's true of most of the literature and, especially, theatrical presentation I've seen in my lifetime.  Most of it from the 20th century.  

I wouldn't deny that Fellini's movie making is artistic, if sometimes wanting of substance.  The use of color in the movie is rightly famous, it is fascinating to watch as is the use of bizarre imagery in the supernatural, perhaps merely fantasy experiences of Juliet, but I kept thinking of what a waste of potential it amounted to.  But that's true of almost every movie I've ever watched, even those with an underlying or overt attempt at presenting edifying content.   It reminded me, in the end of the weekend I spent reading through a large collection of the music of Eric Satie which I came away from with an abiding and life long revulsion for him and his music, apart from a few of his pieces - no, probably not the ones you'd expect, if I hear those Gnossiennes and Gymnopédies again I might go off of music completely.  

I don't know if I could watch my favorite of his movies, Amarcord again, I'm sure I don't have to see Satyricon again any more than I need to watch Salo again.  Maybe 8 1/2  or La Dolca Vita but I don't think I need to watch most of the movies I saw again.  Maybe any movie.  I'm really off of them.  For the most part I think it is the most lavishly expensive medium for producing the most minimal amount of actual substance.  Opera is practically a poor cousin to it, though a lot of the same criticism could be made of easily 98% of that. 

 Update:  I would contrast this least conventional operatic but most effective production of Schoenberg's Moses Und Aron 

 

Bochumer Symphoniker
Conductor: Michael Boder

Moses - Dale Duesing
Aron - Andreas Conrad
Ein junges Mädchen - Ilse Eerens
Eine Kranke - Karolina Gumos
Ein junger Mann - Finnur Bjarnason
Der nackte Jüngling - Michael Smallwood
Ein anderer Mann/Ephraimit - Boris Grappe
Ein Priester - Renatus Meszar
Vier nackte Jungfrauen - Ilse Eerens, Hanna Herfurtner, Karolina Gumos - Constance Heller

Answers To Hate Mail . . . did not suggest revelation exists to achieve some degree of self-satisfaction among the doctors of the law

AS I'VE MENTIONED HERE BEFORE, one of the worst things the Supreme Court ever did in its long and sordid history, apart from declaring that Black People were not covered by the Constitution and that they, in effect, had no rights that white people were bound to respect was to declare that corporations are "persons."*   That wasn't something that was first said in a ruling by the Supreme Court "justices" themselves but was inserted into a footnote by a Court clerk who later went on to have a career as a corporate lawyer.   That ruling, of course, totally distorts the meaning of "rights" because it allows for a whole long series of rulings favoring corporations over obvious and necessary rights of People, workers and others.   

That is something that was rather less explicitly but more naively and stupidly inserted into the Constitution by the First Amendment and, I'd say, the Second Amendment, though not usefully distinguished as such.  The First Amendment "gives rights" to "the press,"  it grants "freedom" to "the press".  A press is no more a person than a corporation or "the press" as a corporation, it is a human made thing, it cannot have rights.  Rights inhere only to living beings, only People can be "persons."  The license the Warren Court so naively and stupidly gave to the New York Times to publish lies with impunity, something which has been an intrinsic and basic fact in our fall from the high point of American democracy, the adoption of the Civil Rights and Voting Rights and other things that made the United States a potentially egalitarian democracy for the first time in our history to today when we are in real and present danger of losing even the shell of democracy that was set up under the Constitution.  When you put that together with the more bizarre and complex manipulations of Republican-fascists on the Court and off of the disastrous language of the Second Amendment, in which a "right" to bear arms, explicitly as part of a "well regulated" militia was made into a personal right to maintain automatic weapons of a kind that the naive amateurs of the First Congress could not imagine anymore than they could modern printing presses, radio, TV, the internet when they so stupidly adopted their trite and short slogans in the First Amendment.  That those lied to by the media, those whose worst inclinations are encouraged by cabloid TV, hate-talk radio, the neo-fascist, neo-Nazi media, in the United States hold such enormous fire-power given to it by the Rehnquist and Robert's Courts that if their eagerly anticipated civil war happens, it will be hard for any "well regulated militia" to suppress it.  Indeed, when a lone gunman is murdering school students now, it is a suicide mission for a well-trained, well-regulated police team to stop them.  

The objection to what I've been writing here for the last few posts was interestingly reflected in an article on Pope Francis' response to some insincerely and dishonestly posed to him by five far-right, neo-integralist Cardinals to try to steer the sessions of the Synod that is taking place right now more to their liking.  Or to embarrass Pope Francis if they failed to.  I'll give you this from the article on it in the National Catholic Reporter:

There is something else going on here. The dubious cardinals seem to forget, and Francis reminds them, that the Second Vatican Council's Dogmatic Constitution on Divine Revelation, Dei Verbum, did not suggest revelation exists to achieve some degree of self-satisfaction among the doctors of the law. Revelation is given "for the salvation of all nations" (Dei Verbum, Paragraph 7). The dubious cardinals think conversion happens before one gets to the church door, once and for all. Francis, a pastor, knows that conversion never ends, that those who have crossed the threshold and those far from the doors of the church, are all in need of conversion. Christ died once and for all. Our conversion to the divine will is ongoing.

What is most striking about the responses is the difference in approach from that found in the original dubia. "The complex issues that the 'Dubia Cardinals' raise can only be answered with the pastoral type of response that Pope Francis gave," Sacred Heart University professor Michelle Loris told me in an email. "His method of response resonates with the way Jesus often responded to those who would try to trick and trap him — challenging his accusers to go more deeply into their heart and faith."

Boston College professor Cathleen Kaveny had a different take on pope's responses to the dubia. She suggested that rather than giving a different answer to the issue of same-sex relationships, Pope Francis is changing the question. Kaveny drew an analogy from the mid-20th century debate about religious liberty. "The traditional question was, 'How can we endorse religious liberty for false religions, since the Church has always taught that error has no rights?' But Jesuit Fr. John Courtney Murray and others framed the question differently," Kaveny told me. "Those advocating for change said, 'We are not endorsing false religions. We are saying that rights are inherent in persons not propositions, so the proper question is what we need to do to respect the dignity of the human person as a being who has the duty to search for the truth.' "

"I think Pope Francis is saying: 'The proper question is not whether we are endorsing sexual activity between persons of the same sex. It is what do we need to do to respect the dignity of LGBTQ persons, many of whom seek to live lives of love and responsibility in and through their partnerships?' " Kaveny is going a step further than the pope did, but her framing could help the debate get past the often "my way or the highway" approach to neuralgic issues our fraught, culture war zeitgeist makes most prominent.

Of course it is the short statement of truth I'm focused on here, "rights are inherent in persons not propositions, so the proper question is what we need to do to respect the dignity of the human person as a being who has the duty to search for the truth."    This reminds me of another quote that I've also cited here a number of times, from the great radio engineer Edwin Armstrong, weary from his long and futile struggles to obtain his right to the ownership of his own inventions as opposed to the stealing of them by Sarnoff and his corporation, RCA (he proved that Sarnoff couldn't begin to understand the mathematics and science behind his inventions as the courts gave ownership of them to the multi-millionaire)  He was certainly talking about lawyers and courts when he told a meeting of his fellow engineers, "Men like to substitute words for reality and then argue about the words."   


The Law isn't so much an ass as it is an a-hole, a thing manipulated by lawyers and judges and "justices" to make it do what they prefer, at least in many if not most cases and "the law" allows theme to do that, especially in our system in which the Court and the laws organizing the judiciary allow them to get away with.  I do think if we studied the cases from before Louis Boudin and after he wrote, in which the Supreme Court overturned duly adopted laws on both the state and federal levels and previous Supreme Court rulings we would find a distinct patter of them favoring the rich, the powerful, the economically, racially, male-gendered, ethnically white or not Black or Native American or Latino, and straight AND THE WEALTHY CORPORATIONS over and over again.  As the brilliant recent work of Paul Finkleman and his colleagues are showing, as Louis Boudin showed in is discussion of Court cases, that started at least with the many rulings against slaves AND FREE BLACK PEOPLE ABDUCTED INTO SLAVERY written by that most august of them  all, John Marshall.  It was done by the "anti-slavery" "justice" Joseph Story in a ruling which Paul Finkleman rightly said if it were not for the Dred Scott decision it would be THE most outrageous of the slave-power favoring rulings by the putrid Supreme Court.  Only he is more temperate in his language than I am, he is a lawyer and a law scholar as well as a lawyer, I am merely what I am.   Among the rights that I hold to be mine by divine endowment is to truthfully tell the truth about those who we are gulled, bribed and coerced into giving respect that I certainly lost as soon as I found out what they really did and really said, they only having a right to me telling the truth about them and not bearing false witness.  If Marshall, Story, Taney,  Roberts, Alito, Thomas, and the rest of the Republican-fascist thugs who dominate the court and have for years now did the same they'd never have earned my regard of them that seems to scare some so much.

What the hell does everyone worry about the danger in the  possibility of changing the Court to make it responsible for the evil it does amount to?   That a rational attempt to reform it will be worse than the course it's on now?  It's plenty evil now and through its entire history to make changing it now necessary to maintain even a vestige of equal justice and egalitarian democracy.    They're getting hundreds and thousands of American children murdered in their own schools and neighborhoods now.   They are arming the Trump criminal gangsters and the nut cases with assault weapons.  They are enabling the indigenous form of American fascism, white supremacy and the spreading of white supremacist and other fascist and Nazi propaganda to those who are made by TV and movies and the internet stupid enough and morally debased enough to adopt AND ACT ON IT.   They have corrupted our elections with their own "more speech" through Buckley V. Valeo, Citizens United and other "free speech" rulings.   IN THE GREATEST TRANSFER OF "RIGHTS" IN THE HISTORY OF THE DISHONEST LEGALISTIC AND JUDICIAL BLATHER ABOUT RIGHTS THEY HAVE MADE MONEY "SPEECH" WHICH MEANS A BILLIONAIRE HAS BILLIONS OF TIMES MORE "SPEECH" THAN A POOR OR DESTITUTE PERSON.   And if you think all the pro-bono lawyers and judges and "justices" which the legal industry will generate in its entire existence will make up that difference, I've got a hideous building designed and erected under that "puzzle-wit" Taft to sell you.

Rights inhere only to natural living beings, they don't inhere to corporations or organizations, no, not even religions as that observation in the passage above notes.  What are "religions" except for a long series of propositions and a corporate construction for embodying them in an organization?   None of them has gained universal recognition as a divine creation, for any denomination which has claimed that for itself, and the Catholic Church is one of the foremost in that group, there are many who make a good case that that claim is bogus.  I know a lot of those who are skeptical of that about Catholicism are cradle Catholics, especially those who have studied the history of Catholicism and have taken an honestly critical regard to those claims.  They were what was at the heart of John Paul II's and Benedict XVIs attacks on the eminent Catholic theologian Hans Kung.  

Though I have not had the time to follow up and look into what John Courtney Murray and those others mentioned above were responding to and exactly what they said but I suspect it was exactly the context of the American Catholic experience of life in a diverse and aspiring democracy as opposed to the long tradition and experience of Europe.  It is interesting to note what might seem to be a nuance of noting that ideas don't have rights, that rights inhere to living beings is not a nuance, it is an absolutely basic aspect of the theory that something called "rights" actually is real instead of merely a matter of human invention.  I've been over and over the consequences of asserting that rights are merely something that is the creation of a societal or group or, yes, corporate agreement, a mere convention for, among others, the many atheists who I've argued that with.  In a country where a majority are religious they would be within their rights to declare that atheism had no right, an extension of the late medieval Catholic claim that "error has no rights"  which was necessarily overturned to assert there was a freedom of belief for People.  I don't think that's in any way a difficult idea to navigate through.

The naive and stupid and widely held idea that "The Constitution gives us a right to . . . " is ridiculous.  The Constitution didn't create any right and we are stupid if we mistake what it did create as constituting "rights".   The Constitution explicitly "gave rights" to those who held People in slavery to violate rights of Black People that "it gave" those who enslaved them.   If that is your view of rights and the United States Constitution, you are inevitably going to have to maintain that Taney and his concurring "justices" who issued the Dred Scott decision were right, that the Constitution applied to those Black People who had been held in slavery, and through Supreme Court precedents from Marshall, Storey and others, to Black People abducted into slavery not as a guarantor of rights but as the administration document of a slave based Republic.  Without a superior source of rights than the one that conventional Constitutional lore recognizes, the stupid language about not recognizing religion, will admit to, you are powerless to demand or even petition for rights not explicitly mentioned in that document.  It makes rights and their possession subject to the whim of a majority or even a majority of those who cast votes on their mere opinion.  

I have pointed out that under the legalistic thinking of those who criticized the Nuremberg Trials on the basis that what the Nazi mass murderers and war criminals did was legal under the laws of Nazi Germany and the places they invaded and held such as William Howard Taft's son, Robert Taft, someone the Harvard Trained John Kennedy held up as a "profile in courage," that is if it wasn't Ted Sorensen who wrote that deeply flawed book, as the somewhat supportable but denied rumor had it.   I mention that only to point out that lying about Democrats has never much mattered as a question of "journalistic ethics" anymore than lawyers lying on behalf of clients has troubled the professional and annoying insouciant self-permission of lawyers to promote crimes and enormous harm on behalf of those who they get paid to do that for.   Lawyers for the worst among us getting judges to let their clients do evil doesn't seem to much bother the profession.  Have I mentioned that my opinion of the legal profession isn't what it once was?  

I think it is an extremely dangerous thing to hold that rights belong to anyone but living beings, certainly to People and not to things invented by People, corporations, organizations, religions, ideologies, ideas, certainly among the most dangerous of those in the current American contexts, media companies and, yes, even "presses."  I think the current lore, habits and holdings of American Constitutional law are extremely dangerous because the profession of lawyers is to always find ways through, around and over adopted laws and if not that to come up with words that twist them out of their explicit language and their supporting legislative record as has been done so disastrously with the First, Second and Fourteenth Amendments to the Constitution.  

What we need is there to be some basic, easily expressed, CLEARLY EXPRESSED, definition of what rights are and what they are not and I don't think that we could possibly do that without some major amendments to some of the most idolatrously worshiped parts of the United States Constitution.   Removing the obvious Court imposed atrocity that there is a right to lie - when a lie can certainly be demonstrated to be a lie - and that while individuals should, at times, be given some leeway in ignorantly repeating or even initiating a lie, there is no such thing as a corporation, a newspaper, a magazine, hate-talk radio, a TV or cabloid source or an internet company to spread those lies.  We have seen the nearest achievement of American egalitarian democracy destroyed by media carried lies in the past fifty-nine years, you can measure the progress of that regime of lies from before till after the Sullivan Decision, from Nixon losing in 1960 to him winning in 1968, the first presidential election after that decision, through Reagan's previously most criminal administration, that of Bush I, that of the Supreme Court crowning of Bush II to Trump.  As I mentioned there were other "free speech-press" rulings all during that which have made things steadily worse, Buckley v. Valeo, Citizens United, etc.  And it's not stopping.  If you think Roberts, Alito, Thomas, Gorsuch, Kavanaugh and Coney-Barrett are not aware of the role that lies in the media have played in not only Republican-fascist success but also in their own placement in the place of supreme power in the American government, you are wrong.  They're as aware of that as they are the connection between their Second Amendment decisions and the arming of the Republican-fascist Trump cult and the myriads of American children murdered as a direct result of those decisions.  They are as bad as the worst Presidents and members of Congress and far worse because they obviously and simply don't care.  Under their conception of "rights" without moral responsibility, they're as easy with what they do as the worst figures in human history.   

And I really do mean that.
 
* As a long line of abolitionists pointed out,  even if that may have been the intention of some of the "founders" the ambient conditions in the States that adopted the Constitution proved that could not have ever been what was ratified by the States as a whole.  In several of the states Black men had voting rights, in some slavery was being abolished even at the time around the adoption of the Constitution, many others did in the years after.   The majority in the Dred Scott decision were simply lying to get the result they wanted and stupidly expected would "restore harmony" to the country.  It is bound to happen whenever that "right" by the Supreme Court to nullify longstanding, duly adopted laws which were not, since, overturned by the representatives of The People through something that might approximate a legitimate vote by The People.   The criticism of that usurpation by the Court first under Marshall but greatly and importantly expanded by Taney et al in that officially worst decision, by some of the most deified figures in our history, Jefferson, Lincoln, many of the then famous lawyers such as Thomas Hart Benton should be fully exposed now as the corruption of the Court is at another and ever worsening reality.

NOTE:  RMJ has made a valid point about something I wrote, I don't want anyone to think this is in answer to what he said.

Government By Irresponsible Men, Dead Judges And Living Ones Who Cannot Be Removed From Office Even When They Are Flagrantly Corrupt

I ALWAYS GET FLACK when I diss the Supreme Court and, at times, when I diss that most bizarrely mistaken, mistakenly nominated champion of "liberalism" of that Court, OlIver Wendell Holmes jr.  Given the revelations of the unchecked corruption of the Supreme Court in the lavish emoluments given to "justices" by billionaires and millionaires with business before the court, the overt political campaigns to nominate and get them put on the court supported by those billionaires and millionaires, the emoluments given to them directly and through their wives in the known cases (so far) of Thomas, Alito and Roberts, given their overturning of voting rights and of the rights of Women to the ownership of even their very own bodies, how far can you go in slamming that most corrupt branch of them all through our entire history, the "irresponsible," that is unremovable members of the Supreme Court?   I think my slamming of them is far less than they deserve.  I think any level of slamming close to the mark will make lawyers and the naively pious piss and moan.

In the hand-wringing about what to do about the corruption of the Supremes that we've heard all year, a rational reaction to the fact that, as even Oliver Wendell Holmes jr said, as given below, "there is "no limit but the sky' to what it may and does do, since the Constitution no longer furnishes any restraint upon its action," the Constitution and the ancient 1790s laws that made things far more dangerous and the practical impossibility of overturning those in light of hard, even dangerous experience of our unelected, life-time appointed Supreme Court which has, in fact, usurped powers never granted to it by the Constitution - as Louis Boudin proved more than ninety years ago -  it's clear that the problems that scores and hundreds of Americans have bemoaned throughout the 19th and 20th centuries are absolutely as relevant to us now as they were when Lincoln and Thomas Hart Benton slammed the Dred Scott decision.  The Roberts Court is the Taney Court reborn as a Republican-fascist billionaire pimped bastard.  When you recall that Sandra Day O'Connor's participation in the Bush v Gore decision of 2000 was, by her own reported words motivated towards the end of making sure it would be a Republican who replaced her, the corruption of the Supreme Court as it is constituted now is far more corrupt than anything Boudin wrote about in his great study Government by Judiciary.  

I have gone over large parts of that book here over the past several years, more than once.  I have gone over things referenced in it on their own and have found in every case his characterization of it was accurate, even as I feel no need to piously pretend to respect Holmes or Marshall or any of the other "justices".  I'm not a lawyer trained in the secular folklore that is the actual character of "Constitutional scholarship" and those who with an eye towards self-interest and benefit practice law and want to get on with the judiciary, right up to the top.  I don't have any more regard for the Constitution or the laws derived from it or, especially, the legal decisions derived from it than the resulting justice and honesty produced by those.  I don't have any more respect for the Constitution than is warranted by the corruption clearly permitted under it.  I especially reject the emetic and fake piety of NPR style Court-reporting, of Broadway or Hollywood costume drama, hazily focused cinematic presentations of "the law," "the Court," the "rule of law and not of men."  I think Boudin's introduction to his book is one of the best short expositions of why all of that is at least rightly suspected of being wrong if not intentionally dishonest.  

Though he doesn't go nearly as far as I do,  perhaps that's a result of being a witness to nearly a century of further developments of judicial and Supreme Court corruption and the disgusting sanctimony that has grown far worse as a shield to any honest criticism and forestalling any effective remedy against that most corrupt branch of our government.   

If you're going to refute that claim by going for the typical assignment of that to the Congress - and given the Republican-fascist house we're seeing, that's an understandable temptation -  you should remember that in the wake of Watergate when Congress tried to remove the most obvious sources of corruption from our politics and elections, it was the Supreme Court that gave ever increasing license to those who corrupt elections and government through their interpretation of the First Amendment, and it's been both Republican AND SUPPOSEDLY LIBERAL DEMOCRATIC "justices" who have participated in that.  I assume the daffy Democratic "justices" who do that believe they are acting in the tradition of Holmes and Brandeis while handing our government to the liars and, in due time, billionaire gangsters foreign and domestic, exactly the people who sponsored the majority on that Court and who furnish them with a lifestyles of the rich and famous bonus for their work on their behalf.   The corrupt Federal Government and many of the corrupt state governments in place now are there exactly because of the power the Court gave itself to nullify duly enacted Federal laws.  The Court is the source of the dangerous corruption we live with now as it lit the idiotic match that set off the Civil War using and, for the first time significantly expanding the power that John Marshall and his colleagues invented for the Court.  And that political corruption results, directly, in the corruption on the Court.

The very corruption allowed in funding elections and in lying with impunity is what produced the Rehnquist and Roberts Courts in their

I would especially note the last sentences in Boudin's introduction:

A careful review of the facts of our history on this showing forces one to the conclusion that the only real difference in this respect between our government and the governments of other civilized countries is that in other countries the Men are accountable to the people, and their decisions subject to be revoked and reversed by the people;  while in this country the Men who wield the real power of government are not accountable to the people and their decisions are irrevocable and irreversible except by themselves.  The net result is that we are ruled frequently by dead Men (not however, the dead "Framers," but generations of dead judges), and always by irresponsible Men.  

Americans are kept ignorant of the fact that in other, especially MORE MODERN democracies the Courts don't have those powers that we've been gulled by legalistic masking and long and stupid habit expect are universal.  And we are kept ignorant of the facts that the Court having that power does negate the pious slogan of "governments of laws not of men."  If there is any evidence you need of that, the Roberts court has given it in bushels and will probably soon produce more of it.  Overturning Roe, the gutting of the Voting Rights Act, the depravity of Alito and Thomas ruling for those who give them among the most extravagant emoluments ever given to corrupt officials.


By Way of Introduction

In a sense it may be said that it is the purpose of the present work to prove one statement made by Mr. Justice Oliver Wendell Holmes and to disprove another, - although both of these statements were made after the present work was practically finished and at the time of its commencement the writer had no expectation that Judge Holmes would make either of them.

The earlier of these statements- the one the present writer has endeavored to disprove - was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, (275 U.S. 142), decided November 21st, 1927.  It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph.  Says Judge Holmes:

"Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty of this court is called on to perform."

Such a statement coming from such a source should give pause to any one - and the present writer is second to none in his admiration for the Grand Old Man of American Jurisprudence.  Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized [here underlined] words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by he present writer is an essay published by him twenty years ago in the POLITICAL SCIENCE QUARTERLY (Government by Judiciary, 26 P.S.Q. 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.

This belief notwithstanding, the term "usurpation" has never been used by the author of this work as his own characterization of the assumption of power involved - for the reason that the use of this term places the emphasis on a wrong aspect of the historical phenomenon under consideration.  To the "legitimist" the most important question about the Napoleonic regime was the great Corsican's "usurpation."  But to the true historian this is a comparatively minor matter in estimating the character and quality of that regime.  Also, the use of that term is misleading, in that it gives an entirely erroneous impression of the meaning of Chief Justice Marshall's act in delivering his famous dictum in Marbury v. Madison.  The impression created is that on the American Eighteenth Brumaire, which happened to be Feburary 24th, 1803, John Marshall put the crown on his head by delivering his celebrated opinion,  and thereupon the American Court Empire as we know it was complete.  This is history as she is usually written, by official historians as well as "muckraking" radicals.  With this difference:  According to the official historians the crown was forged in the smithy of the "Framers" and lay more or less hidden in the folds of the Constitution,- like Wotan's sword embedded in the oak, waiting for Sigemund to bring it forth and use it for mighty deeds- so that nothing actually took place on February 24th, 1803, but a legitimate coronation, when the rightful heir assumed the crown rightfully his.  While the "muckraking" radicals contend that the act amounted to a usurpation of powers never granted by the Constitution, and the exercise which by the court is a continuous invasion of the rights of the Legislature.

But nothing is further from the truth.  Marshall's decision was far from the dramatic event which it is usually pictured to have been.  Nor did it have the implications usually ascribed to it.  It is our contention that Marshall's act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the court's own theory of the Constitution as laid down by Marshall.  And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is.  Hence the actual plan of this work, which-while giving to the pre-Marbury history of the Judicial Power all the attention it deserves - devotes most of its attention to the development of that power since the decision of that famous case, in an endeavor to prove that there was not one dramatic assumption of power, but rather a continuous and gradual encroachment by the courts upon the legitimate rights of legislature, executive and people.  So that what was admittedly intended to be a government consisting of three equal and coordinate departments, with the primacy in the Legislature and the ultimate power in the people themselves, has in course of time through work which Jefferson had Characterized as that of "sappers and miners" steadily worked to undermine the Constitution, become what some Judges themselves termed a Judaical Despotism, with all powers lodged in an irresponsible judiciary.

That brings us to the second of Mr. Justice Holmes' statements. As we have seen, Mr. Justice Holmes believes that the courts rightfully exercise the power of declaring laws unconstitutional.  But what is this power?  The official theory as laid down by Marshall in Marbury v. Madison, and as it has be re-affirmed and re-asserted many times since, is that it is a necessary consequence of our system of government, and that its existence depends upon, and its exercise is measured and limited by, that necessity.  It is a fundamental point in this theory that the courts have no general supervisory power of legislation,  but that wen in the course of the regular administration of its own business, the courts are confronted with the dilemma of following either the Constitution or a legislative enactment which conflicts with the Constitution, they are of necessity compelled to follow the Constitution rather than the legislative enactment, since the Constitution is superior to both courts and legislature.  It is a necessary corollary to this fundamental position, and therefore a canon of the constitutional "interpretation" well-recognized by the official theory, that before a statute can be "disregarded" its conflict with the Constitution must be clear and beyond doubt.  In other words, the primary duty of judges is to enforce the law as made by the Legislature, unless they have a clear mandate from the Constitution itself to do the contrary.  If this theory, announced by the courts themselves were observed in practice, the question of the rightness of the power, while still important, would not be so pressing a problem to the people of this country as it actually is, for the simple reason that the cases where either Congress or state legislatures disregard a clear mandate of the Constitution are so rare - if any have ever occurred at all - that the question would be rather of theoretical interest to philosophically-minded students of our system of government than of practical import to the ordinary citizen.

I will interject here that the history of what the Supreme Court has overruled and what it has left to stand is now such a long one that I suspect a thorough study of those would show that it is almost always what is in the economic, legal or political interest of exactly who you would suspect would be what stood the best chance of being sustained by the Court - those with wealth, power, influence and inherited family privilege - and laws adopted by legislatures and actions by the court which was not in the interest or preferences of those with wealth, racial, gender, etc. privilege would stand the best chance of being overturned.  In the wake of the Rehnquist and Roberts courts attacks on the Civil Rights legislation and Supreme Court decisions, I think that the Court has returned to its general character since the time John Marshall and Joseph Story and Roger Taney were upholding slavery even when the Constitution itself pretended to be trying to steer past it, even when those who could demonstrate they were not held in slavery were abducted into it.    

Unfortunately, the official theory does not at all tally with the facts.  The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason for that disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject.  So much so, that to declare laws unconstitutional has become a matter of a;most daily routine for the judicial machine, and the "unconstitutional" has become a "term of art" as the lawyers call it, a façon de parler, a manner of speaking, the real meaning of which is:  "We, the judges, think this is a bad law."  The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the judges' exercise of the power to declare legislation unconstitutional.  The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.

This is well-known to the elite of the legal profession, who speak of it more or less openly in the professional press.  It is also stated occasionally by the judges, - usually in dissenting opinions, and almost always in technical language not easily understood by the uninitiated.  Bu recently Mr. Justice Holmes has been goaded by his brethren on the Supreme Bench into saying it without circumlocution in plain and forceful English.  In a dissenting opinion in the case of Baldwin v. Missouri, (281 U.S. 586), decided on May 26th, 1930, Mr. Justice Holmes, (Justices Brandeis and Stone concurring), said:

"Although this decision hardly can be called a surprise after Farmers' Loan &Trust Co. v. Minnesota, 280 U.S. 204, and Safe Deposit & Trust Co. v Virginia, 280 U. S. 83, and although I stated my views in those cases, still, as the term is not over, I think it legitimate to add one or two reflections to what I have said before.  I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be constitutional rights of the States.  As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of the court as for any reason undesirable.  I cannot believe that the amendment was intended to give us carte blanch to embody our economic or moral beliefs in is prohibitions.  Yet I can think of no narrower reason that seems to me to justify the present and earlier decisions to which I have referred."

It is the correctness of this statement of the great Associate Justice of the United States Supreme Court, that there is "hardly any limit but the sky" to the power of the Judiciary because the Constitution has ceased to be the measure of "constitutionality," that these volumes prove, by giving a circumstantial account of the most important judicial decisions during the past forty years.  But these volumes do more than that:  They cover the history of more than forty years, and consider more than the "constitutional rights of the States."  They give a fairly complete history of the growth of the Judicial Power, from the first modest assertion of its rights by John Marshall as a necessary "last resort power - to be resorted to in extreme cases in order not to make the courts participants against their will in legislative defiance of the Constitution - to its present position of command,  when it can, and does, bid defiance to the people and the Constitution, so that its most distinguished member must repeatedly rise in protest and cry out in anguish that there is "no limit but the sky' to what it may and does do, since the Constitution no longer furnishes any restraint upon its action.

And in the course of this history, it becomes apparent that it is not even a question of "strict" or "liberal" interpretation of the Constitution.  With the disappearance of the Constitution as the measure of "constitutionality," these terms, which played such a great part in old-fashioned histories, have lost their meaning.  While judges still divide into "schools," these schools are not the result of different methods of interpreting the Constitution, but relate to the judges' general outlook upon life, chiefly economic life.  Hence we find judges who in one case favored what might be called a "strict construction" of the Constitution adopting in another case what used to be called a "liberal interpretation" of that document.  This alignment - whenever there is an alignment - is seldom, if ever, based on some particular method of constitutional interpretation; the line of division usually being some economic or political assumption or predilection which determines the judges' opinion as to what is desirable or undesirable in legislation, or in the power to legislate which ought to be permitted to legislatures.  

It is part of the official theory that the right of the courts to declare laws unconstitutional is necessary to the end that this may be a government of laws and not a government of men.  Mr. Justice Holmes' last statement not only proves our government to be one of men, but stamps it as one of irresponsible men. [Unelected judges given a lifetime tenure, in light of the alleged impeachment power being a Constitutional myth, the Court is unstoppable, something which the present exposure of the rank corruption of Thomas, Alito and others makes especially relevant now.] And of that too, these volumes furnish abundant proof.  For the details of our judicial history, recited in these pages, show how decisions of the gravest political consequence, decisions affecting the welfare of the people and the destinies of the country frequently depend on the will or whim of some one Man, or on the accident of whether this or that Man happened to sit in the seat of power.  A careful review of the facts of our history on this showing forces one to the conclusion that the only real difference in this respect between our government and the governments of other civilized countries is that in other countries the Me are accountable to the people, and heir decisions subject to be revoked and reversed by the people;  while in this country the Men who wield the real power of government are not accountable to the people and their decisions are irrevocable and irreversible except by themselves.  The net result is that we are ruled frequently by dead Men (not however, the dead "Framers," but generations of dead judges,  and always by irresponsible Men.  

New Yor, May, 1931