I WILL NOT be posting more installments of this series going through the extremely careful and honest AND ABSOLUTELY TIMELY IN JULY 2026 article by Louis Boudin, Government by Judiciary over the weekend. I know that readership of such things goes down on weekends and holidays and this is about as important and serious a topic as we have before us.
As was noted a hundred fifteen years ago by Louis Boudin, even the total success by even mere early 20th century "progressives" could not be guaranteed by their winning control of the Congress and the presidency because any laws they passed by the indisputably prescribed means laid out in the Constitution would reliably be annulled (annulling a duly enacted piece of legislation is an explicitly legislative action) by the Supreme Court under the usurped powers adopted by no Congress, the combined legislatures of the several states, by a massive referendum victory by Voters but by the assertion of fewer than ten appointed members of the Supreme Court in 1803.*
The things which Boudin and those on his side of this question struggled against in the first decades of the 20th Century, a reaction to decades of reactionary Supreme Courts, anti-worker, anti-Women, anti-Black, anti-minority, PRO-MILLIONAIRE, PRO-CORPORATION, PRO-WHITE SUPREMACY "justices" acting under the Marbury Power, are exactly what we face today, only far worse.
In 1911 faced a situation unlike that in which the likes of Marshall and Story who, having created that power out of thin air were careful not to cite it in the series of appalling rulings they made but after Taney et al who did use it in the most evil and disaster-provoking ruling the Court had made up till that time, the Dred Scott decision and subsequent Courts went hog-wild on using that power which proved so evil and disastrous in its first important use. They generally haven't had motives any higher than Taney's were.
After the passage of the emergency Civil War Amendments, many previsions of which were passed to fulfill the broken promises of the Declaration of Independence, what the Reverend King rightly called an unpaid "promissory note," and much of which was explicitly meant to nullify by Constitutional means the worst of the Dred Scott decision, the Supreme Court twisted, lied about, nullified and turned especially the 14th Amendment on its head to achieve the political, economic and social goals of the robber barons, the gilded-age oligarchs, the pre and post-Plessey slavers and white supremacists - many of which could accurately describe members of the Court or those who were their patrons. The contemporary questioning of the court at that time was a reaction to the terrible use of the Marbury power by the Court.
If it hadn't been used primarily in the interests of the robber barons, the oligarchy, white supremacists, it would never have been so vigorously protected against its critics. As Boudin noted in the response I posted on Tuesday, the more evidence against it you put up, the more likely your article or book won't be published or taken seriously.
The lying lore supporting the Marbury power and the other atrocities that the Supreme Court had practiced, with which it repeatedly handed victory to those who had been defeated in elections, overturning those winners of elections who passed even the mildest of provisions to ensure justice. Especially economic justice - equality and making true that lie that is inscribed over the front of the Supreme Court's fascist marble palace - "Equal Justice Under Law - would not be the actual law of the United States,
After the very brief and entirely atypical years of the Warren Court and, to a lesser extent, the Berger Courts, we have been for most of the past half-century in a period of Supreme Court right-wing activism which steadily gained steam after the appointments of Nixon, Reagan, Bush I, Bush II and Trump where the Court under Roberts has outdone every previous Court in doing what the gilded-age Courts set the previous record for.
Emboldened by the Rehnquist Court's stealing an election for their majorities party in 2000 - an action so blatant and repulsive that two of the Republicans sitting on the court dissented from it along with Democratic appointees - the Roberts Court is taking the Marbury powers places that I doubt all of its champions from Marshall and Taney up to and including the associate Justice who Boudin spent most of his article refuting decisively, could not have intended. They could not have predicted such a degenerate Court as would issue Trump v USA which coronated Trump a monarch immune from prosecution and rendered the now so-called "Department of 'justice'" his secret and personal lawyers. And that's only one of the many actions of the Roberts Court which could be listed. Apart from those giving control of Womens' bodies over to state legislators - resulting in deaths and bodily harm to Women - the nullification of the Voters Rights Act, provisions of the Civil Rights Acts and other actions by which they have revived the American apartheid system which the earlier "justices" would have supported.
The agitation to once and for all nullify Marbury by Congressional action, executive action (certainly made far riskier by the Supreme Court's own remarkably corrupt and epically stupid decisions) and a combination of the two which Boudin noted was an entirely honest way to do what was almost certainly neither required by the truth being told about the Constitution and certainly would be rendered impossible by the prescribed means of amendment of the Constitution the refusal of a president and Congress to allow that Court usurpation of power, the engine of the greatest corruption and evil that that Court has done to keep going along with it.
What Boudin and his colleagues had to say in reaction to a century the legislating Court then is made a century MORE needed today because the Court's corruption has gone on a century longer than was long enough, already.
For today I'll give Boudin's statement of Judge Lurton's claims in an article which he wrote in reaction to. I will break in with comments. I should mention that I've tried to type out exactly what Boudin wrote - I don't catch every typo or elision though I don't think I've let any pass through, so far - but I have made paragraph breaks in places the printed article doesn't for ease of reading and for emphasis in places I think that emphasis is made newly exigent due to the dangers the Court has produced.
But this is by no means admitted by the other side. Indeed, it is emphatically denied, at least as far as the conclusions are concerned.
Some time after Mr. Roosevelt delivered his famous speech at Denver, Mr. Justice Lurton, of the United States Supreme Court, delivered an address on the subject to the joint bar associations of Virginia and Maryland. That address was subsequently published as the leading article in the January issue of the North American Review, under the title: "A Government of Law or a Government of Men? " In that article the distinguished jurist states what may be termed the" conservative"position on the subject, which is diametrically opposed to that just stated.
Judge Lurton categorically denies that the courts now exercise any legislative powers,that is to say, powers involving the exercise of discretion or the following out of political policies.
I have noted here a number of times a remark that the great, late Old Testament scholar and master Preacher Walter Brueggemann made that, oddly enough, the self-proclaimed "textualist-originalist" the late Associate "justice" Antonin Scalia never found anything in his asserted non-discretionary reading of the text of the Constitution which didn't support exactly what Scalia wanted it to say. The claim that the Supreme Court, unanswerable to any higher court, hasn't, from the time that Marshall was uniformly reading it to support his own economic self-interest as the most slave-holding of all the "justices" (same with Taney) and up to today when the wealthy members of today's Court have given Trump the power to fire and pack all boards of all so-called independent agencies EXCEPT THE ONE WHOSE PACKING MIGHT IMPACT THE SAFETY OF THEIR OWN INVESTMENTS AND, SO WEALTH are certainly exercising an especially corrupt form of discretion in their asserted reading of the Constitution and the laws and statutes, etc.
Seeing the actions of the Supreme Court, many, though not all of the lower courts, the refusal of bar associations to cancel the licenses of some of the most corrupt gangster lawyers in an effectivly timely fasion, . . . the cowardly ass-covering of lawyers in their testimony in front of Congress, as opposed to military officers and diplomats (the first Trump impeachment inquiries), the false promises of effective protection all during Trump I which would be delivered by the likes of Robert Mueller, other legal actions taken by even honest lawyers and right down to my shock at hearing a lawyer I still consider to be an honest and honorable one assert that there is such a thing as a "right to lie," I think the entire legal profession, from the lowest of the low (such as Micheal Cohen) right up to the top, Sotomayor, Brown-Jackson, is corrupted by the ubiquitous permission of lawyers to lie on behalf of their clients or their own interest. After the shattering corruption of the legal profession that I've witnessed, I don't think anyone who has made an honest assessment of it has any reason, whatsoever to put more trust in the judiciary than in the reputedly corrupt Congress. I will say there are SOME state legislatures I have somewhat more trust in but in a very large number of states, and not all of them those in the traitorous Confederate states, I don't trust any more than I trust the Roberts Court.
He asserts heroically that,in declaring legislation unconstitutional, our courts merely apply the law as they find it plainly written in the Constitution,precisely as any court applies the law in any ordinary judgment. He then proceeds to defend this power generally, and he closes with an appeal to his
readers to:
"rejoice that in standing by the institutions made us the most law-abiding people on the earth, that we are walking in the footsteps of our fathers when we maintain in letter and spirit that division of the great functions of government which the men of Massachusetts and the men of Virginia and the men of Maryland declared with Montesquieu to be the best security for a government of laws and the only safeguard against a return to a government of men."
Today it is only necessary to cite the gun-murder rates of the United States to say that Lurton's claims were a bald-faced lie of the type that is a lawyers' mother tongue. And that was even before the Supreme Court legalized the reign of corruption which Trump II has been, the Roberts Court issuing that ruling AFTER THE MASSIVE CRIME AND CORRUPTION OF TRUMP I, BUSH II, BUSH I (Roberts was thick as thieves with the action of George H.W. Bush to pardon his ass out of criminal investigation) and the previous holders of records of members of an administration convicted of felonies, Reagan and Richard Nixon.
Even in 1911, Lurton was lying like the corporate lawyer he was.
I will give you the rest of Boudin's introduction to his hands-down winning case only asking you to either believe me, for now, that he does demolish Lurton or to read the rest of his article, yourself or, better, to read the two volumes of Government by Judiciary which he anticipated in this article: "Indeed, the evidence against some of them is so overwhelming that its complete presentation would require several volumes."
Judge Lurton's appeal to American traditions puts his opponents in the awkward position of unpatriotic men,trying to undo the work of the great men who established this government, and of reactionaries, attempting to abolish one of the most effective safeguards of our free institutions against the tyranny " government of men."
It is, therefore, but fair that we should inquire into the facts of the case, historical and contemporary, and compare them with the assertions on which Judge Lurton bases his conclusions, in an endeavor to arrive at an independent judgement as to whether or not his conclusions are warranted by the facts of the case.
The salient points of Judge Lurton's argument, asserted by him as matters of fact, are as follows:
(1) That the framers of the Constitution, owing to their philosophical training in the school of Montesquieu and the governmental usage of the states prior to the adoption of the United States Constitution, considered it necessary to invest the judiciary with the power to annul legislation whenever the judges should find it to be unconstitutional.
(2) That by the constitution framed by them, they intended to invest, and did in fact invest the judiciary with such power.
(3) That the judiciary of this country has exercised that power ever since, in the manner in which the framers of the Constitution intended it to be exercised, without any change; and that the exercise of this power for "more than a century" has made us "the most law-abiding people of the earth."
(4) That the rules of "constitutional construction" applied by our sourts in the exercise of this power are so plain and simple that their application does not, in fact, involve any element of discretion; and that the courts, therefore, never have exercised, nor do they now exercise, any legislative powers in annulling legislative acts on the ground of alleged unconstitutionality.
On this last point, which is perhaps the most important, Judge Lurton says:
" There is nothing in the past history of either the National or State judiciary which gives sanction to any such abuse of power or supports an expectation that the function of interpreting will be tortured into an exercise of legislative power. The rules of construction are plain and simple of application. They are in substance identical, whether the instrument of interpretation to be a statute or a contract."
A careful examination of "the facts of the case," it seems to me, will show conclusively that each and every one of these propositions is erroneous. Indeed, the evidence against some of them is so overwhelming that its complete presentation would require several volumes. It is my purpose in the following pages to take up Judge Lurton's position point by point, and to present as much of what I consider to be the evidence against it as may be compressed into the narrow limits of a magazine essay. An examination of these points, in the order stated by me, will also serve to present to the reader a historical picture of the growth of the power under consideration, showing its gradual development and the vast, indeed revolutionary, changes which have taken place in its application. And this examination will, it seems to me, establish conclusively at least two points: first, that the power under consideration did not emerge in its present form from the rains of the framers, as Minerva sprang, fully panoplied, from the head of Jupiter; and , second, that the epithet "revolutionary," applied by Judge Lurton to the demands of the progressives, could be more fitly applied to the latest actions of our courts.
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