democracy is my aesthetics and my ethics and more or less my religion - Hate Mail

I HAVE BEEN struggling to write a piece about a segment of one of Marilynne Robinson's essays for the past two days.  Then I saw this from RawStory.   The original intention was to answer an objection to me saying that anything that didn't base politics in the commandment that you are to do unto others as you would have them do unto you is not only not democracy but it is on the continuum of gangster government that is the only alternative to it, what fascism and its ilk are the inevitable end unless corrected.

The Conservative Political Action Conference in Dallas, Texas was a sign of a troubling fascist direction being chosen by American conservatives.

"Hungarian Prime Minister Viktor Orban won over the crowd at CPAC Texas on Thursday, arguing that his nationalist agenda in Hungary aligns with the goals of the American conservative movement – and sounding a lot like the conference’s upcoming Saturday keynote speaker, former President Donald Trump," CNN reported Thursday. "The right-wing European leader hit guaranteed applause lines – including telling the Texas crowd that 'Hungary is the Lone Star State of Europe' – and criticizing liberals, the news media and the Democratic Party."

During his speech, Orban said he predicted tomorrow's headlines in America would declare, "Far-Right, European Racist and Anti-Semite, Strongman, Trojan Horse of Putin, Holds Speech at Conservative Conference.

MSNBC anchor Mehdi Hasan described it as fascism and displayed a list of ten Republican election deniers on the ballot.

"They do not believe in liberal democracy," Hasan said. "And so today, in 2022, I'm sorry to say the Republican playbook is Viktor Orban playbook, and you can call that what you want, but I'm going to continue to call it fascism.

Anne Applebaum, author of the 2003 book Gulag: A History and the 2020 book Twilight of Democracy: The Seductive Lure of Authoritarianism, posted to Twitter four reasons that CPAC "admires" Orban.

"He bent the rules, changing his constitution and altering voting laws in order to remain in power, indefinitely," Applebaum wrote. "He destroyed the independent media; nothing remains but a few websites."

"He doesn't keep his homophobia, his anti-semitism or his racism a secret," Applebaum continued. "He moves, walks and talks like a Ruritanian dictator from a movie."

NYU Prof. Ruth Ben-Ghiat, the author of the book Strongmen: From Mussolini to the Present, noted that Fox News host Tucker Carlson traveled to Hungary in 2021 to hype Orban.

"Orban's appearance today at CPAC is the outcome of a carefully cultivated relationship," she said. "He can be the Big Man mentoring the GOP in how to wreck a democracy."

In May, after CPAC held a summit in Budapest, Ben-Ghiat wrote, "we can also see Orban's impact on things like the rollback of reproductive rights in the U.S. Former Vice President Mike Pence previewed the Supreme Court opinion in Budapest last fall as a speaker at Orban’s 'Summit for Democracy' where 'pro-family' agendas, meant to increase the 'right' kinds of births (white, Christian births) twinned with anti-immigrant and anti-LGBTQ platforms."

Stuart Stevens, the Lincoln Project strategist who has worked on five GOP presidential campaigns, posted, without attribution, “This is why we have always fought: we are willing to mix with one another, but we do not want to become peoples of mixed-race.”

"That’s not David Duke, it’s Viktor Orban, the star of CPAC, the new darling of American conservatism," Stevens noted. "Bathrooms, bedrooms & race. That’s who they are."

Reflecting on the embrace of Orban by the far-right, civil rights lawyer Sherrilyn Ifill noted, "over 400,000 Americans were killed in WWII-a war in which 88% of the soldiers were white. And yet we see so many Americans (mostly white) so readily defile the sacrifice of their grandparents and forbears who fought in WWII and defeated fascism, by embracing the rise of fascism here."

Here is the segment from the essay, unfortunately taken from an excerpt online, I can't find the book containing the original in my movings to and back this year:

Complexity is powerfully stripped away by half-informed or uninformed aversion. Why should people so often feel what amounts to contempt for figures, even entire populations, about whom they know nothing and will learn nothing on the grounds of this same aversion? The word Orwellian has been worked nearly to death because it is so very useful. Consensus really ought not to trump reason or preclude it, though it does, routinely. And reason always tells us that human beings and their societies and histories are mingled—that is, never only to be condemned, sometimes ingratiating or admirable. Decent mutual respect depends on an awareness of this fact, that is, on good history.

A conscious strategy currently favored for excluding complication, usually on the pretext of acknowledging complexity, is cynicism. The tsar had his own motives. True enough. People do. No doubt he had a number of them. This really does not neutralize the fact that the British and French had their motives, too. By the blunt measure of their potential impact on human lives, these were, at best, far inferior. We have brought home from our wars, cold and hot, this habit of impervious antagonism, antagonism as loyalty, which dovetails neatly with our version of cynicism, better called intellectual lassitude. We have allowed ourselves to become bitterly factionalized, and truth has lost its power to resolve or to persuade.

There is a mystery in the fact that by means of these truth-excluding encapsulations, besides making our society foolish and vulnerable, and in some ways ineducable, we do preserve, very effectively, negative beliefs about ourselves. My earliest memories take up after World War II, when movie theaters still ran ads about the need to relieve hunger and poverty in war-torn Europe. The camera dwelt on a little boy in short pants and bare legs alone in a dark, narrow street. I remember a German immigrant neighbor, an older woman who scolded my mother as if from a moral height for the inadequacies of her knitting, for her buying soap when she ought to have been making it. Her houseplants, she said, were a disgrace. My mother was impressed, even deferential, though not to the point of making soap. The neighbor was a product of her moment, a priestess in the cult of Heimat, but we would not have known. There were a number of freshly arrived Europeans then. I remember an old man who practically lived at the mayor’s office, and who scolded whomever was polite and could spare a minute with the fact that democracy was wasted on Americans. More generally, I was educated to the belief that this country was an awkward attempt at a civilization, a crude imitation of something profound and elegant and intrinsically elsewhere. Objectively speaking, this is remarkable, considering what was then the very recent history of Europe. Be that as it may, the admiration for things European, whether in any instance it was justified or not, came paired with the implication that nothing so excellent or so profound would be possible here. I’ve read a good deal of Fascist literature over the years, and I know it was believed and taught and spun into philosophy and philology all over the Continent that mingled and rootless people who spoke an adopted language could never even know how utterly they fell short—of profundity, of authenticity, both important terms of the time. By these lights such people were a corruption, a threat to the organic integrity of any true culture. A splinter in the flesh, Hitler said. In our deference to European thought we applied this thinking to our hapless selves and kind, never reflecting on the uses that had been made of it in Europe or the biases it legitimized here.
 

I have never admired deference. I was dosed with Sartre and Artaud, as any college girl then would have been. I felt their nausea. It made an Americanist of me.
 

But for those whose tolerances were different from mine, figures like these defined the future. It was not a very interesting or habitable future, but in the short term it opened the way to study abroad. Juniors returned knowing better how to hold a fork or a cigarette. They had heightened social confidence—they had checked an important box. None of this ends with adolescence. Or this adolescence never ends. It seems to be true now that there is no Europe of the kind to potentially unleash new literary trends or to make us line up around the block for a new French or Italian movie. Without any particular object of emulation to measure our deficiencies by, the sense of deficiency is at least as strong as ever.
 

It is absurd that the products of a civilization as old and solid as this one should forever be such colonials, feeling sophisticated in the fact that they have and confess such deeply internalized prejudices against themselves. A few years ago I was seated near an American couple at one of those dinners they have at Oxford before a lecture. The Americans were doing something I see very often. They were saying that in the States there were no such events as these, that intellectualism was held in contempt there, and so on. They were earnest and insistent, even a little bit loud. I said, That might be an overstatement. They reacted, again predictably, as if the fact were plain and must be faced. When they were told that I was the lecturer, they were irritated. Not only had they been interrupted mid-kowtow. They had come out for an evening of stimulation among their betters and they had found me instead. Why do so many otherwise presentable people think they can ingratiate themselves with foreigners by talking this way? I take ingratiation to be part of the motive behind it, or the hope. A small thing in the great scheme, granted. But it enacts as much as it expresses that internalized prejudice. Put aside the notion of country and imagine 320 million souls who happen to be passing their mortal time on this continent. Why should we discourage them from major aspiration? Say 15 percent are black, 51 percent are women. Is it at all consistent with their aspirations to be told that whatever their gifts, an ultimate mediocrity awaits them? I don’t know how damaging this really is. I certainly felt the weight of it when I was young. I see students who seem to think they are excused from the kind of effort they might make by the belief that there is no audience in this country for serious literary work, for ideas. Some first-rate writing is being done here now, and finding a readership. Still, I hear again and again that Americans hate books and ideas, that demanding novels don’t find publishers. This gloom, which is mutual condescension, is unshakably in love with its certitudes.

 Then there is the matter of our press, our public discourse, which looks more and more like self-parody. The purport of all the jeering and slurring and scaring seems to be that democracy is indeed wasted on Americans.

 Well, democracy is my aesthetics and my ethics and more or less my religion. I am very grateful that my life has passed in a society where the influence of a democratic ideal is sometimes great, sometimes decisive. A thing I have long regretted, though, is that I have been significantly distracted from this privilege, and from the experience of my life and the lives around me, by generalizations about us all that are meager and belittling at best. When I was still vulnerable to those unanchored comparisons that are always made of us and that we seem always to welcome as truth, I thought we as a culture might be especially materialistic, especially intolerant, especially violence-prone, especially indifferent to the finer things. Now as I watch this supposed populism that invites some part of the public to identify with all these things as indeed American, as the voice that really is great within us, a sort of utterly corrupted Whitmanism, I fall to wondering how the grand experiment has been brought to such a pass. And this brings me back to history.

I will have more to say on this after I find the book but I needed to post this right away.

What rustypickup

 and RMJ Said

 

They don't care about the fetus either. None of the states that are pushing these extreme anti-abortion positions are moving to spend a dime for pre-natal or post-natal care. They are engaging in cheap posturing. This is performance art with victims. If they actually cared they would be accepting Medicaid expansion, increasing medical spending pre and post birth and more, but of course this is not happening. This about feeling good at the expense of someone else, the the most cynical form of morality.

To paraphrase,

Something which I doubt would much bother the Republican-fascists of the Roberts-Alito Court or the Bush v. Gore five who already showed us a little preview of what we can expect in the future going forward as we are headed

In finishing his discussion of Supreme Court decisions that illustrate the irrational danger of government by judiciary, right after going into the Supreme Court contradicting its own reasoning in the Lochner case and Holden v. Hardy, Louis Boudin said:

We are not now concerned with the question whether their conclusion was correct or erroneous.  What concerns us is the fact that the court assumed the distinctively legislative function of deciding whether circumstances existed which required remedial legislation.  This position is opposed to that which the court took in Munn v. Illinois.  Even in that comparatively late case the Supreme Court still held that such an inquiry was part of the functions of the legislature, and none of the court's business.  It said:  "For our purposes we must assume that if a state of facts could exist that would justify such legislation, it actually did exist when the statute under consideration was passed."  In other words;  if the legislature has the power to limit the hours of labor when the health of the employees demands it, the court must presume that the health of the employees in the particular industry which the legislature has undertaken so to regulate does in fact demand such a limitation of hours.  Neither Judge Lurton, nor anybody else, will contend that if this rule had been allowed in Locnher v. New York the bakery law would have been declared unconstitutional.  It was declared unconstitutional because the rull still recognized in Munn v. Illinois was repudiated.

I will point out that since the Court is not supposed to be a legislative body and it does not function as one - I doubt any of the Supreme Court members would ever want to go through the work of fact finding, listening to constituents and the public, etc. that good legislating requires and the consequences of ignoring that-  it is not equipped either by law nor by its own choice to make the kinds of distinctions that responsible legislators equip themselves to make.  Of course, there is nothing to protect We The People from legislators who act like the worst of the Supreme Court members have and do EXCEPT TO VOTE IN BETTER ONES.  That is assuming that the legislators of a malignant party have not gerrymandered and vote-rigged and otherwise made sure that there will be no actual expression of a majority of voters so as to prevent better ones taking office, something which Republicans and now Republican-fascist members of the Rehnquist and Roberts-Alito Courts have worked hand-in-glove with their party and oligarch funded efforts to make sure happens.

A Supreme Court such as ours, under its usurpation of legislative and executive functions,is free to apply rules on its mere whim and when it will not apply them, also on its mere whim.   The governing Supreme Court  recreates in itself a number of the accusations made in the Declaration of Independence against George III and the British government in ignoring the legislatures of the States.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. . . 

Reading the Declaration of Independence, in view of the self-created, usurped powers of the Supreme Court and considering how that reads in view of that is an exercise I would highly recommend.   IN BOTH CASES THE WRONG BEING PROTESTED AND ACTED ON WAS THE NULLIFICATION AND VETO AGAINST THE COLONIAL LEGISLATURES ON A WHIMSICAL OR MORE HONESTLY STATED, OLIGARCHY PROFITING BASIS. There is no representation of the Voters on the Supreme Court any more than there was in the American colonies in the British Government under George III, they don't have to represent anyone but those they choose to serve. They won't be voted out if they don't.

Boudin continued:

Another glaring instance of the open assumption of legislative discretion by the judiciary is furnished by the recent decision of the United States Supreme Court in the case of Muller v. Oregon.  In that case the Oregon statute under consideration limited the hours of work for women in "mechanical establishments, factories and laundries," to ten hours a day.  This law was declared constitutional "as to laundries."  The Supreme Court conceded the power of the state legislature to limit the hours of work for women, on the ground that "as healthy mothers are necessary for healthy offspring" the health of women is a matter of special concern to the state.  And yet the court limited its approval of the exercise of that power to the case of laundries, reserving to itself the right to declare the law unconstitutional as to "mechanical establishments" and "factories" if it should conclude on future investigation that the state legislature had made an unwise use of its conceded powers as regards such establishments.

I will bet you anything that not a single member of that Supreme Court had ever done any kind of laundry and probably had never seen where their clothes were cleaned, I'm sure they had some kind of affluent male notion about the job that had no real knowledge of how hard it was then to work in a laundry for the long hours in question.  Considering how many of the laundries in many places were staffed by Asian and other immigrants in that period, it would probably be safe to expect there was also a racial component to the imaginations of the affluent, white men who made the decision probably on nothing but the products of their imaginations and their more reliable knowledge of who stood to benefit from their ruling.  I can also assure you that in the United States any kind of reform legislation of that sort would have succeed only on the basis of the kind of constituent information and fact finding that would probably have had to sway a majority of white, male legislators who were more inclined to ignore or diminish the crisis in the lives of the women who worked dangerously long hours in laundries.  I will also point out that Oregon was hardly a bastion of racial equality then, probably even in that period.  In the coming decades it would see a great deal of support for the Ku Klux Klan.  It already had a history of vandalism, attacks on and burning down Asian owned laundries.  I expect that only very strong supporting evidence could get such legislation passed there as it would have taken in most states A STEEP UP HILL THAT ALL REAL REFORM STILL HAS TO CLIMB.  The Court certainly brushed aside a lot of evidence supporting the reform legislation when they did what they did. Just as today's Roberts-Alito Court does in everything from Women's ownership and control of their own bodies (in case you believe we've really gotten past that) to climate change as the world dries out, roasts and burns around them, safe in their alabaster chambers untouched by morning and untouched by noon. Though there is nothing meek about the members of the Supreme Court, nor are they indifferent to politics as in Emily Dickenson's poem.  The Supremes should be required to get out more and find out how the hoi polloi really live and the world really is.  Not that even that would move those hard hearts.  But the law is not a power unto itself, it cannot perpetually ignore reality though Supreme Court and others pretend they can, a consequence of their not having to win another term though the example of states with elected judiciaries is no great advertisement for an elected judiciary, either.  The safest practice is to regulate them and term limit them and prevent the kind of scheme Lewis Powell hatched and Mitch McConnell consummated.

Approval of the decision in Muller v. Oregon is a matter of legislative policy, because of its effect upon the condition of the working class of this country, should not blind us to its significance as regards the distribution of political power in our governmental system.  In the latter respect it openly, I may say almost defiantly, maintains the position that to the judiciary belongs the supreme control of all legislation and that it means to use it.

To say, in the face of these decisions and the many more that could be cited but for lack of space, that our courts do not exercise any legislative power, seems like adding insult to injury.  And it is certainly a strange commentary on Judge Lurton's declaration, that the judicial power insures to us "a government of laws and not a government of men," that with  three months after the publication of these words the new York court of appeals rendered a decision which led the editors of two important magazines to the doleful conclusions that nothing can help us - not even an amendment to the Constitution - except the election to the judiciary of proper men, not men learned in the law and the Constitution, but men with a knowledge of life and plenty of common sense.  These editors meekly accepted the political situation created by the latest phase of the development of the judicial power and merely suggest a remedy for our social and economic ills on the basis of that political situation.  But the great question before the people of the United States is:  Shall we permit this political situation to become firmly and irrevocably established?  Shall we permit this great revolution in our political institutions to take place undisputed?  And the question before our leaders of thought is:  Shall we permit this revolution to take place without even calling the attention of the people of the United States to its momentous character?

The answer to those last questions is that other than President Franklin Roosevelt's attempt to expand the court so he could save the Country from the Great Depression, in the hagiographic nonsense that was raised about the Court and this or that member of it - often a complete falsification of the member of the court as popular entertainment, these dangerous things were not fixed then and they have gotten far worse than during Louis Boudin's time.  The brief and atypical periods on the court when Earl Warren and Warren Burger were the chief justices are imagined to represent the history of that Court when it has probably been, in total, the most corrupt branch of it.  It is certainly that, today.

The United States Constitutional system has long showed the defects and weaknesses built into it, many of them intentionally such as the slavery-enabling features not all of which went with the Civil War amendments and other such things, some intentionally such as the anti-democratic constitution of the Senate and what we now know with no possible doubt the extremely dangerous Electoral College based in the anti-democratic inequality built in through apportionment of extra power to smaller population states.  On top of that a whole slew of Supreme Court and lower court contradictions, vulnerabilities, overt and covert corruptions and just plain stupid or, it turns out, badly thought out though well intended innovations allegedly based in the normal exercise of its designated powers.  Corporate person-hood, one of the worst of those, not even the insertion of a Supreme Court "justice" but a clerk of the court who was obviously corrupt during one of the more corrupt periods of our political life.  

I don't favor an elected judiciary, the example of states that elect their Supreme Court and other judges shows how open that is to corruption.  I favor more stringent tests for nominations, even taking the sole decision in that away from the executive and sharing it between the elected branches.  I favor making all of them, all of the members of Congress, the President and the members of the Supreme Court vulnerable to removal and prosecution for the kind of corruption, obvious, covert, petty and flagrant that are practiced by all of them today but for none of them more openly and brazenly than the Supreme Court which is now staffed by the recipients of slush-funded appointments and approvals through an overtly oligarchic clique pushing overtly fascist theories of government on American Democracy. The stability allegedly provided for our governance by the Constitution has, like I suspect all constitutions are vulnerable to, been thoroughly altered and gamed by lawyers, law professors, sleazy judicial clerks, sleazy and sometimes less than perfectly foresighted judges and "justices" and through the accumulation of professional and cultural acculturation and habituation to that gradual and, at times, sudden shift from the original document.  As Boudin shows, that change was often warned against, condemned and openly defied by some of the greatest lawyer-politicians and statesmen of their time, only to have the machine of the legal and judicial system move on in that direction through the steering or just momentum that it had built up.  The crises of my lifetime, the criminal regime of Nixon, the corrupt pardoning of him by Ford, the once all-time crime spree presidency of Ronald Reagan - the actual number of indictments and convictions of members of it once breathing in its record setting - the corrupt Bush I who had to pardon some of the senior members of his administration to avoid them throwing him under the bus, so vulnerable to conviction as he was - the outrageous decades long hunting of the Clintons by the Gingrich era Congress with the collusion of Republican Special Prosecutors who found no crime but created, with the help of the media,  the effectively universal belief that they were criminals, something so important in creating the culmination of this march to fascism.  Then there was the Supreme Court-Jeb Bush installation of the loser of the 2000 election in the Bush v. Gore outrage, the Bush II-Cheney regime, 9-11, the longest war in US history which Joe Biden is blamed for finally ending, the trumped up-lie sold and totally disastrous invasion of Iraq, the reverberations of which are still killing tens and hundreds of thousands, and then the Trump regime which was the most dangerous and criminal of them all in terms of domestic politics, though nothing in our history trumps the Supreme Court created Bush II regime for all time death tole and disaster.  

The Supreme Court, whether through their ill-fated and quite stupidly unrealistic idealism in the Warren era that allowed the media to lie with impunity against Democratic politicians - something vitally important in producing Nixon and the rest of the Republican holders of power just cited,especially the media creation, Trump - to the Bush v. Gore Rehnquist court which did something that no Supreme Court ever should have been considered empowered to do, has been at the center of all of that anti-egalitarian, anti-democratic shift to despotism.  That cannot go unchanged forever.  The warnings that started with Jefferson, continued through Lincoln and joined in by even some of the most informed and foresighted judges in our history cannot go unacted on forever because either we change it now, or the really empowered despots of the future will and they will not change it to favor egalitarian democracy.  Something which I doubt would much bother the Republican-fascists of the Roberts-Alito Court or the Bush v. Gore five who already showed us a little preview of what we can expect in the future going forward as we are headed.

I will have a post-script to this series which I will post separately.

There is now no such "plain and simple" rules of interpretation as Judge Lurton claims; on the contrary, there are now practically no rules at all.

The rule that the violation of the Constitution must be "clear, palpable, and free from all doubt" had to disappear with the other restraining rules when the express provisions of the Constitution were disregarded as a test of constitutionality of legislation and the vague "spirit of our institutions" was substituted therefore. . .

I will break in here to consider what was lost when the Supreme Court gave itself these powers to "legislate from the bench" something I remember Republicans of the 1960s till about 1981, the year of Reagan's ascendancy, lamenting and despising but which they now not only favor but have ratfucked the membership of the Court to practice.  And, considering the dishonest claims of "originalism" of "textualism" which are the MO of the likes of Alito and Gorsuch and Coney Barrett, how their very practice is a later introduction, not through amendment of the document they pretend to use to impose their will on the United States, not by the only prescribed methods of amending that document found inside it, but through the mere whim of the members of the Court.  

Anyone who pretends to not see the danger in that practice, whether by their side doing it or by their side, thereby, facilitating a future Supreme Court majority that they may not like, is as big a liar as the members of the present court were when, under oath, they claimed to believe Roe v. Wade was long established law so as to give the likes of Susan Collins covering for voting in favor of them.  

As Louis Boudin proves, those lies we have grown so habituated to were basic, serious and obvious as they were proclaimed in Supreme Court decisions that had the force of legitimately adopted legislation.

. . . The "spirit of the Constitution,"  the "spirit of our institutions" and the "principles of our government," which are now used as criteria of constitutionality, are in themselves empty phrases, in to which not only each generation but each individual puts a different content, according go his own philosophical, political and social principles.  What Justice Iredell said of "the principles of natural justice" is equally true of these newer principles:  "The ablest and purest men have differed on the subject."  In this realm nothing can be said to be "free from doubt."  Uniformity of opinion, except among close political associates and kindred philosophical spirits, is here extremely unlikely.  And so we have lived to see the power which was originally supposed to be used only in cases "clear, palpable and free from all doubt," used almost regularly by divided courts, often by bare majorities.  And the uninitiated wonder; how is that a provision, of which one judge emphatically asserts that he is able to find no trace whatever in the Constitution, is asserted by another, and with equal emphasis, to be clearly and plainly written therein?

The reading of a few important recent decisions, such as Lochner v. New York, Adair v. United States,  People v. Williams and Ives v South Buffalo Railway Company, will sufficiently illustrate the points just made.

These same cases will also show that we have very effectually disposed of the last safeguard against the establishment of a judicial veto upon any and all acts of our legislative assemblies by discarding the rules that the courts must limit their inquiry to the question of the existence of the power which the legislature has undertaken to exercise, and that where the power exists its exercise is open to the judicial sphere of influence.  The courts now openly review the use made by the legislature of its conceded powers, thus arrogating to themselves a distinctly legislative function.

The result of all these changes must be summed up in a sentence.  There is now no such "plain and simple" rules of interpretation as Judge Lurton claims;  on the contrary, there are now practically no rules at all.  Each case is supposed to stand "on its own merits,"  which, translated into ordinary English, simply means that each law is declared "constitutional" or "unconstitutional" according to the opinion the judges entertain as to its wisdom. . .

I will break in here to say that Louis Boudin even then and much, much more so now, is attributing motives that are far too high to most the members of the Court.  I doubt many of them much care as to the "wisdom" of their rulings or the results, what they care about is a. favoring their wealthy families, friends, colleagues and patrons, b. favoring the Republican Party and its empowerment even against the will of the majority of qualified American voters, c. having their own way - which accounts for a. and b. as well as other things.  I doubt their recent rulings favoring dirty air and global warming were considered in terms of its short or long term wisdom.  They were thinking of the money of those who favored that ruling, either in their own families investments, those of their patrons and donors to Republican-fascist candidates and the propaganda campaigns for the appointment of future Republican-fascists to the Supreme Court to perpetuate oligarchic government by the judiciary.

. . . This is another reason for the fact that almost all important constitutional cases are now decided by divided courts.  Since there are no longer any set rules by which the judges can be guided, since they are left to determine the propriety and wisdom of laws according to the canons of politics and statesmanship, they naturally exhibit those differences of opinion which we expect to find in legislative bodies.

This leads our Supreme Court as well as our other courts, into the position - anomalous and absurd for a court, though perfectly proper for a legislature - of deciding in different  ways cases similar in principle.  Thus in the case of Holden v. Hardy the Supreme Court decided, by a vote of six to three, that a law limiting the hours of labor in mines was constitutional;  but in Lochner v. New York it decided, by a vote of five to four, that a law limiting the hours of labor in bakeries was unconstitutional.  In principle the two cases are of course identical.

Under the old rules of interpretation, which limited judicial inquiry to the matter of legislative competence, these two cases must have been decided in the same way.  Either both laws were constitutional or they were both unconstitutional.  In the earlier case, Holden v. Hardy, the Supreme Court decided that the state legislature had the power to pass a law limiting the hours of work in any industry when it - the legislature - came to the conclusion that longer hours would endanger the health of those employed in that industry.  It followed as an irresistible conclusion that the bakery law was constitutional, the legislature enacting it having come to the conclusion that it was necessary for the protection of the health of those working in bakeries.  The decision in Lochner v. New York, declaring that law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers.  They could not understand it.  They accused the Supreme Court of inconsistency.  But the truth is that the court had discarded the old rules of constitutional interpretation and had adopted an entirely different theory.  An examination of the dissenting opinion in the case, when it was before the New York Court of Appeals, and of the prevailing opinion in the United States Supreme Court, clearly shows this shifting of ground.  Under the new rule of interpretation, it is no longer a question whether the legislature had the power to limit the hours of labor, when it determines that such a limitation is necessary for the health of those engaged in a particular industry;  the question is whether that power has been wisely used.  The power of the legislature is conceded, but its discretion is reviewed and is determined to have been improperly exercised.  The legislature has found that work in a bakery beyond a certain number of hours is dangerous to health.  But, says the court, we don't consider it so.  And it was their judgment on the matter of the healthfulness of work in a bakery, not their judgment on the constitutional power of the legislature, that led five out of the nine judges to declare the law unconstitutional.  

I believe the substance, the result of that old case, Lochner, is about to be the next wrecking ball the Roberts-Alito court heaves at more than a century and a quarter of progress in many areas of rights, not only against workers and others held in wage slavery, it is certainly something that the six Republican-fascist appointees to that court would have as an important goal, their goal is to destroy the entire framework of decent life for the many in favor of the filthy profits of the few.  That was the way of courts for most of our history, the Supreme Court as much as any. With some golden exceptions, the higher the judge in the hierarchy, the less likely they will have any more democratic motives, and often the ones who do really don't have much of a realistic grasp of the consequences of their rulings. I have a feeling that judges with a realistic grasp of the lives of most Americans don't get elevated as often as the ones with monied buddies and customers.

That to achieve their results they had to do what it is so impossible to do in the anti-democratic Senate, drastically change the rules, and that they did it by fiat of five "justices" who were not even elected to the extent that  a minority of Senators "representing" a tiny fraction of the countries residents can be said to be, is a demonstration as to allowing unelected, lifetime-appointed, for all realistic purposes impossible to remove despots to have the kind of power we have, as a country, stupidly allowed the Supreme Court to create for itself and for them to exercise and have retained it out of benefiting the rich and powerful and those of them in control of the media through the ignorant habits of thought gradually imposed on the rest of us.  

As touched on yesterday, incomprehensible legal language and mysterious jargon-filled judicial mock-theology aided that effort.   Especially the adoption of words and phrases in show biz, TV, movies, alleged news shows and popular novels which carry on that trade in constitutional and Supreme Court piety. I won't go into Jimmy Carter's efforts to make lawyers and bureaucrats to write in comprehensible English, among the earliest things overturned by Reagan as evidence of the importance of incomprehensible language to the conning of America other than to mention it here. "Due process?"  

I noted that was just part of their pseudo-religious apparatus in the legal profession. The Supreme Court is regularly in the same position as the old and more recent adventest millennialist cults, in changing the hard and fast claims to suit themselves.  Only, unlike when those cults' end-times don't arrive on schedule,  we, as right-thinking Americans are supposed to pretend the sanctified Supremes haven't done what they have repeatedly done as they do it, changing the meanings of words to change goal posts.  We're supposed to pretend nothing's wrong as they use their self-created, self-expanded, rule-shifting powers to drive us into disasters, catastrophes and death.  Look at their recent rulings on climate change and guns and Women's bodies if you think that's hyperbole.

When I first started going into this, someone came up with an interesting idea that legislation should only be overturned by Supreme Court fiat on the basis of a unanimous court holding it was unconstitutional on the same ground. That would, perhaps, go some distance in correcting the absurd situation Boudin described in the disparity in judgement over Lochner and Holden v. Hardy.  That might, usually, be an improvement on the present situation but given the Federalist-fascist, billionaire financed, Lewis Powell schemed, Mitch McConnell packing of the Supreme Court, I don't think even that is a very safe situation.  Packing a court with nine rigged, Federalist-fascist picked, advertisement peddled despots isn't that much harder than getting five or seven or even eight of them.  Look at how shameless the court-packing of the current Roberts-Alito court was in its clear and corrupt intent, Susan Collins as much a part of that as Ted Cruz or Rand Paul even as she lies about how surprised and disappointed she was in Kavanaugh's blatant lying that everyone knew was a lie even as she posed behind it to disguise her naked shame to explain voting for him.

I don't think anything but a complete refusal of Democrats in the Congress and Presidency to continue to go along with government by judiciary will do it. And they should choose one of the most unpopular of their decisions to make that declaration over.  Roe would be such a one, there are many others. That course of action is certainly not without its dangers, what Democratic Congresses and Presidents do, Republicans will.  Even when Republicans do it the media and pundits will declare Democrats doing far less is taken as a forbidden scandal even as they will accept Republicans doing it.  The media is well over ninety-percent in on it.  But the present status quo is certainly a known danger as opposed to those theoretical ones.  

I don't think doing anything short of overturning the Dred Scott precedent of the Court vetoing duly enacted Federal legislation and state legislation which is within the powers of state legislatures - WHEN THOSE DON'T NEGATE FEDERAL CONSTITUTIONALLY RECOGNIZED RIGHTS - from the bench will protect us from these long ingrained and expanded on habits.  

I don't trust the Court or any unelected, lifetime appointees who will never be removed by impeachment to have much of any power of that kind.  I certainly don't trust them when the perennially corrupt, anti-democratic Senate is the confirming body.  Since it is legislation of both houses which they feel free to veto, taking on the role of the president, I think both of the houses of the Congress should be required to confirm or reject them.  Perhaps Congress should be empowered with the ability to overturn Supreme Court vetoes as they can overturn presidential vetoes. Which will cause new problems, perhaps but that's already the case.  The Senate is incompetent and, as the anti-democratic branch should never have had that sole discretion, it should certainly not be entrusted with it when the slave-power invented filibuster is among its unchangeable rules.  And removing incompetent, corrupt, unethical or criminal Supreme Court members should be far easier than it is to remove a president, there are nine of them and they aren't required for national emergencies.  They should be removable for violations of ethics rules and laws, they should be subject to both as they clearly are not now, they are laws unto themselves which is intolerable for any kind of real democracy.

And we should end, now and forever, the lie that they are "justices" when they are so reliable in producing injustice.  They should from now on be "members of the Supreme Court" or "Supreme Court members."  I almost felt restrained to forego the vulgar pun on that which can be counted on being said considering how most of them are and have been real dicks.  But like many a vulgar pun, there's some justice in calling them that because such they are. Gorsuch and Coney Barrett as much as Kavanaugh, Thomas and Alito. Roberts is more a schmuck.  Kick them off the plinth.

The Meaninglessness Of Words And Phrases And The Consequences Under Judicial Despotism

The first restraint to go by the board was the principle that this power was of an "awful nature," as Justice Iredell expressed it, an extraordinary power to be used only on extraordinary occasions for extraordinary purposes.  It has become an ordinary power, used by our courts without hesitation as one of their regular functions.  It is well within the truth to say that our federal and state courts now annul in one year more laws than they annulled during the entire first half of our national existence.  The power is now used by every petty magistrate, and we are so accustomed to its every-day use that to speak of its "awful nature" seems like a bad joke.

The next restraint to be thrown off was the principle that a law cannot be declared unconstitutional unless it contravenes some special provision of the Constitution applicable to the subject, expressly stated in the Constitution or contained in it "by necessary implication,"  and that neither the general protection accorded to life, liberty and property nor the so-called "spirit of our institutions" gives sufficient cause for such annulment.  Most of the important decisions declaring legislation unconstitutional are now rendered in violation of this principle.  The chief grounds for the annulment of legislation in recent years have been the modern doctrines of "due process of law" and of "liberty of contract."  According to the earlier view, neither of these doctrines would have justified the courts in assuming the control over legislation which they now exercise.

When the phrase "due process of law" was first used in this country, as part of the usual bill of rights in our state constitutions, from which it was subsequently taken over into our federal Constitution, this phrase had a well known and clearly defined legal meaning, which was the same as its literal meaning, namely, that of a procedure under general law, with proper trial or hearing.  And it was in this sense that the phrase was used until comparatively recent times.  But now it has acquired an entirely different meaning.  As it is now used by our courts, when they declare legislation unconstitutional for contravening it, it means substantially the same thing that was meant by "natural justice,"  "principles of liberty and justice" and similar expressions in the earlier days of our constitutional history.  Denial of "due process of law" is now discoverable in any law that requires or permits something to be done which the judges deem unjust or not in accord with the "free spirit of our institutions."

The doctrine of "liberty of contract,"  when used as a test of the constitutionality of legislation, is a still more glaring violation of the older rule.  The federal Constitution nowhere mentions any such "liberty."  It is claimed, however, by our judges (in modern decisons, of course), that this is part of the liberty guaranteed in the phrase contained, in one form or another, in all our constitutions, that "no person shall be deprived of his life, liberty or property without due process of law." Aside from the question of the meaning of "due process of law,"  which has just been considered, there is an additional difficulty with this particular "liberty,"  namely, that it was entirely unknown and undreamed of at the time we borrowed our "life, liberty and property" phrases from English constitutional law.  It is therefore evident that this particular "liberty" was not originally contained in our constitutions.  And in fact no such "liberty" was asserted until recent years.  When did this "liberty" get into the Constitution?  Evidently when we infused in the old words the new "spirit" of extreme individualism.  And now we declare legislation unconstitutional on the ground that it is repugnant to this "spirit," and we call this "walking in the footsteps" of our forefathers!  

One of the most useful things in going through these old studies to me has been the revelation that much of what we have, indeed, become so accustomed to words' and phrases' every-day use, that the meaning we give them now is hardly uniformly held.  Many who toss off the phrases don't have any idea what they might mean, many of the phrases, themselves, have sprouted many heads of meaning like the mythological Hydra, no doubt, eventually, one of the will bite someone and get someone killed or maimed.  The point about "liberty of contract" which, certainly is about to be revived in the biggest possible way - I'll bet that the trucker freezing Gorsuch will write the decision - when, if Boudin is right, that "liberty" could not have entered into the Constitution because no such "right" was entertained even as part of "due process" when the Constitution was adopted.  Abortion was known and legal to some extent (or so I've read) "due process" and a myriad of other Court creations such as "corporate person-hood" were neither known nor articulated and so could not have entered into the intentions, never mind the text of the document the "originalists" and "textualists" all pretend to follow so diligently when they are calling balls and strikes in such a predictably oligarch favoring manner on a predictably partisan basis.

If lawyers, law professors, judges, "justice" dislike the cynicism in which the law and courts and lawyers are widely held, the cause of that cynicism goes right to the top OF THEIR PROFESSION.  You should expect that to only grow as the Roberts-Alito Court continues on its merry way, trashing anything like progress towards egalitarian democracy or even the universal franchise of qualified adults.  Only no one should have expected otherwise, the Supreme Court has been an open sewer back to the days when slave-holders were making decisions that favored them building their fortunes on the backs, the children and lives of Black People and those who were murdering and robbing the native inhabitants of the country to press their property holdings ever Westward.  And that was going on well before the Dred Scott decision that is so central to the issue of Supreme Court usurpation of legislative and presidential powers.
 

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

Going father into this made me think repeatedly of the career of the actor, director, etc. John Houseman who went from being the producer of the late 1930s communist bit of agit-prop tripe, The Cradle Will Rock to being most famous as the  1970s law professor in The Paper Chase, especially when it made the change from a movie to a TV series.  As part of his new-claimed fame as the Yale teacher of contract law, he got a lucrative gig in propaganda commercials for the financial investment firm Smith-Barney in which he proclaimed in his Yale Law prof. voice that that bunch of crooks and their clients "made money the old-fashioned way, "they earned" it."  As can be seen at the two links, the power of art even on its central producing figures is largely an aspirational fraud.  I mentioned that before in mocking the reputation of that agit-prop "opera" in relation to the only reason it is ever remembered today, its stirring tale of suppression and resistance, the piece itself is crap, those never-ending tales show-folk love to tell about it even more so. Anyone who believes that "nothing is sacred" under an enforced secular regime is full of soup.  The mandated pieties of even would-be hard lefty secularism are more strictly enforced than almost any under religion and they are often even more transparently a fake.  And it only gets worse when the pseudo-religious lies are part of the mandated official mythology.

"The Law," especially constitutional law in the United States takes the place and functions as a secular state religion, with all of the clap trap of a costumed clergy, liturgical ceremonies, mysterious incomprehensible liturgical language and a commanded, forced piety that the actual fact of it not only doesn't warrent, it makes a mockery of it more times than not. That it is a "justice" or judge most frequently takes the ceremonial place of a minister or a priest in the most often clearly and false swearing to oaths of office - the breaking of which faith is never punished - is one of the most glaring pieces of evidence in that accusation.

The Federalist fascist Society scheme of court capture, so well exposed and evidenced by Senator Sheldon Whitehouse, flowing from the white-supremacist, segregationist corporate lawyer then Supreme Court "justice" Lewis Powell's plot to do what has been in the works since the early 1970s and which had its first fruits in the Rehnquist Court, including them handing the election of 2000 to George W. Bush when he lost the election (never should it be forgotten with the manipulations of his brother, Jeb, and his Republican-fascist administration of the election in Florida) and in rulings which paved the way for the further cementing of Republican-fascism into place through a Supreme Court staffed with those who took courses with the likes of that movie-TV law prof.   That aroma of sanctity that surrounds the Supreme Court really stinks when you consider what it really is, it's like the sickly sweet aroma that is the first impression you get when you come across a rotted corpse, before you realize what it is and you retch.

I have been accused while presenting this series as calling for the disrespect and abolition of law, that is certainly not the case.  I have repeatedly slammed anarchists and libertarians because they are like the worst of two-year-olds who insist that they can do whatever they want to and be as selfish and self-centered as they want to be, something which animates much of the "libertarian-never-Trumpers" as much as it does the Trump-fascist Republican-fascists as well as a huge chunk of the play-left who will never grow up and whose expulsion and dumping from the left I have repeatedly encouraged as part of our only hope of ever making life better.  In the absence of decent, egalitarian democratic laws and their just administration, the gangsters take over and impose their own gangster law by force or con job or violence.  That can happen under non-egalitarian, democratic government, it is almost guaranteed to to one extent or another, it is an absolute guarantee when principled, decent civil law enforcement is absent as it is so often is when the police do not serve a community.  

I am in favor of correcting the clear and dangerous defects in the Constitution, in the corrupt Supreme Court, in the federal and other courts, in the culture, history and practice of lawyers and in the police who not only are charged with enforcing corrupt laws but who the Supreme Court in its arming of the fascists and psychotics with the most dangerous of modern weapons, have given an impossible job of protecting the residents of the United States from that Supreme Court criminal insanity.   Nothing will change for the better until the Supreme Court is stripped from its usurped powers under discussion here, a lot of the worst of what we have now is a direct result of a corrupt Court exercising that usurped power and often for the most predictable and obvious motives no matter what their lying words in their corrupt majority decisions say.  Lawyers are often rightly accused of being professional liars, some of the most successful of those liars comprise the majority of the Supreme Court, as they have in long stretches of its history.  If their competence in lying is better than one full of incompetent ones doesn't much matter, not when what they say goes no matter what.

Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.

The almost penultimate post of Louis Boudin's 1911 article Government by Judiciary gets down to the problems of ending it because its dangers won't go away no matter what rare "liberal" justices might use the power for.   The Roberts-Alito Court wrecking ball to that brief era of progress under it proves it was never safe under that very power used to create that too-briefly real progress.   I remember the economist John Kenneth Galbraith warning his era's liberals against their growing practice of depending on the Supreme Court to overcome things like the anti-democratic Senate's use of the filibuster by segregationists.  I might try to find the context for that, though the last time I looked I couldn't find it.

And only a generation ago Justice Clifford of the United States Supreme Court said:

"Courts cannot nullify an act of the state legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution,  where neither the terms nor the implications of the instrument disclose such restriction.  Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism."

For any good that the Warren or Burger Court may have thought they were doing and what liberals believed they did through exercising this kind of power over state legislatures, there was the fact that its major use in its history, as Louis Boudin pointed out more than a century ago, was its use to do terrible things.  And, as anyone who has long read what I wrote will know, I believe some of those things which are championed as among the greatest things those two anomalous Courts did with such powers were turned to sheer evil by later members of the Court, not only those appointed by Nixon and later Republicans and today's Republican-fascists, but by some of those appointed by Democrats as well.  The Citizens United Case rests on the "free press" rulings of the Warren Court, so does the putrid Buckley v. Valeo.  The ability of the media to lie us into ever worsening Republican-fascism was among the most ill-considered, historically uninformed and obviously stupid ones ever championed uniformly by liberals. The whole thing began in the modesty of the Court in 1801 trying to avoid a battle with Jefferson and Madison, refusing to exercise a power which the Federalist Congress had granted them to issue a minor kind of order which the Constitution didn't specify was within their powers, the Taney Court in Dred Scott used that very exercise of a power every bit as much not one granted by the Constitution, the power of the Court to annul a minor law to annul a major one and blow a gaping hole in the country by overturning the Missouri Compromise which had stood as law for thirty-seven years, a Supreme Court decision which was largely responsible for provoking the lawlessness of the Confederates to treasonously set up a slaver government and to incite the Civil War.  Lincoln certainly knew he had to oppose that Supreme Court usurpation to save the union and to end de jure slavery.

The best and the brightest in the legal profession and among judges are quite able to hand the worst and most incompetent of them words which are deadly weapons and those who champion such decisions with ACLU style secularist sanctimony are even more liable to be played for chumps by the worst, in time. Sometimes almost immediately.  The durability of bad Supreme Court rulings as even some of the best of them prove to go sour fastest is worth always considering.

As a corollary to the principle mentioned by Judge Knox, that there must be some fixed rule by which the power of the courts to annul legislative action may be measured and by which the constitutionality of legislative enactments may be tested, and in order to prevent our government from becoming what Mr. Justice Clifford warned us it might become - a "judicial despotism" the courts have, until very recently, adhered to the well defined and clearly expressed rule of interpretation, that every inquiry into the constitutionality of a legislative enactment must be strictly limited to the question whether the legislature enacting it had power to legislate at all in the premises.  Once such power was found to exist, the manner of its exercise could not be inquired into.  No law could be declared unconstitutional on the ground that it was an unwise, inexpedient or improper use of a recognized power.  The courts distinctly disclaimed any power or right to protect the people against an abuse of power by the legislature in matters on which it admittedly had power to legislate.  . .

I will note here that that disclaiming of power by the Court is certainly a sometimes thing and, the Court, mostly, being in the hands of conservatives you can guess when they will do that and when they will ignore it.  They are generally so eager to act when it comes to state legislation protecting workers or protecting residents from guns but not when it comes to things like making sure state legislatures don't ratfuck elections through voter suppression, gerrymandering, even the most blatantly racist acts to prevent People of Color from voting, etc. Boudin, if he were writing today would have to account for the atypical later courts use of the power, something in the Lochner era hadn't happened yet.

. . . Each legislature, accordingly, was left absolutely free to use, according to its own best judgment, those powers at least which by the court's own admission were granted or left to it by the Constitution.  The power or taxation, for instance, being admittedly reposed in the legislature, no court could interfere with its exercise, no matter how unwise, improvident or even dishonest its use might be deemed.  The same was held to be true of the power delegated to Congress to regulate commerce with foreign nations.  This power was held to be unlimited; it could be used even to the extent of completely forbidding commerce, as was actually done by the Embargo Act.

This rule was laid down by Chief Justice Marshall, who declared that "the interest, wisdom and justice of the representative body furnished the only security in a large class of cases not regulated by any constitutional provision."  It has been reiterated by the Supreme Court of the United States on innumerable occasions.  In the famous case of Munn v. Illinois, decided in 1876 the Supreme Court said:  " We know that this is a power which may be abused;  but that is no argument against its existence.  For protection against abuses by legislation the people must resort to the polls, not to the courts . . . . For us the question is one of power, not of expediency. . . . Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge."

This rule was absolutely necessary in order to prevent the judiciary from exercising legislative functions, there by converting our government into a "judicial despotism."

Even given the atypically benevolent and just use of that power, that is atypical of its history.  Whatever happens to advance egalitarian democracy under a representative government, the history of the anti-egalitarian, anti-democratic, oligarchic disaster of government by judiciary will never be long compatible with those rulings.

                                                          V

Turning now from a study of the past to a consideration of the present, we must be appalled by the enormous change which has taken place in the distribution of powers in our government, not only from the time when the men of Massachusetts, Virginia and Maryland, guided by Montesquieu and English precedent, first formed our government, but also from those later days when our judges, under the able leadership of John Marshall, succeeded in establishing their position as guardians of the Constitution.

I will remind you that the "now" Boudin is writing about here is 111 years ago.  The program of reform that would prevent and correct "government by judiciary" was not taken and, in fact, things got steadily worse during his lifetime and even more so today. He was still writing about it in the crisis of the court striking down much of Franklin Roosevelt's emergency legislation to deal with the Great Depression after he wrote his book.

The Rehnquist and Roberts-Alito courts are typical of Supreme Courts in doing the bidding of the rich, the powerful and the oligarchic party and they are typical in expanding outrageously the powers that their majority in the Supreme Court take and exercise even against the most serious warnings of science, against the outrageous return to the darkest days of the United States in apartheid and wage slavery, the enormous injustice that they practice and permit and even against the express wishes of a majority whose power is thwarted by Court permitted and, so encouraged, gerrymandering, the gutting of legislation like the Voting Rights Act, the embedded anti-democratic features of the government such as the anti-democratically constituted Senate and the clear and present danger of the Electoral College.  The Republican-fascist majority on that Court since the turn of the century has not only permitted that ratfucking of democracy, they  have played the major part in carrying it out.  It's not only the six on it now who did, it is the likes of Rehnquist, O'Connor, Scalia and Kennedy who did so. The days of honorable conservatives such as the two who were in the pro-democracy minority in the Bush v. Gore decision is truly and completely dead.

Instead of "walking in the footsteps" of either the founders of our government or the earlier judicial interpreters of our Constitution, we have now abandoned all restraints upon the judicial power.  We have thrown to the winds all those great limitations, embodied in principles and rules of interpretation, which the earlier judges imposed upon their own power - a power which they deemed necessary for our orderly development, but the danger of which, when not properly limited, they clearly foresaw.  One cannot read the latest decisions of our courts, either state or federal, without being forced to admit that they have usurped supreme legislative power, and that we have reached the condition of "judicial despotism" which Justice Clifford feared. Benevolent this despotism may mean to be, or otherwise;  that depends on the individuals who wield the power.  Its benevolence is also largely a matter of opinion, depending on a variety of considerations, some moral and some material.  As is well known, it makes a great difference whose ox is gored.  But whatever difference of opinion there may be as to the spirit in which this power is exercised, it must be admitted by all candid students that this power itself spells despotism.  The essence of despotism is the right of a few to make the laws or to control their making, without being responsible to the people.  This condition is admitted by many able and learned jurists.  They seldom employ the harsh term which I have borrowed from Justice Clifford;  but despotism retains its sting no matter what it is called.

What he said a one hundred eleven years ago, is more true now than when he said it.

The Bible's Relevance Is Continual - Hate Mail

"Vanity of vanities! All things are vanity!" and "Take care to guard against all greed ... for though one may be rich, one’s life does not consist of possessions."

The phrases from this Sunday’s reading are a prophetic voice addressing the 1% of people who own the world’s wealth. It is no secret that money has power, and power is gained through money. Some of the wealthiest oligarchs reside in the world’s wealthiest empire nation, the United States. These oligarchs, together with the techno feudal lords, are reshaping the global economy and the future of the planet.

In an article by Elizabeth Dwoskin in The Washington Post, she outlines the plans of billionaire investor Peter Thiel, longest-serving board member of Facebook, who stepped down from the social media giant, dissolving one of Silicon Valley's most powerful partnerships. Why? Because he seeks to create a parallel economy fueled by the far-right and their political candidates to whom he has contributed millions of dollars to secure successful campaigns and winning elections, past and present. Beneficiaries include politicians Donald Trump, Josh Hawley, Blake Masters, J.D. Vance and Ted Cruz, among others.

Thiel aims to transform American culture through "anti-woke" business ventures that pressure CEOs to avoid environmental, social and political causes. He does not support socially responsible investing, the reduction of oil production to meet environmental goals, or anything that will hurt "the bottom line." He does favor the controversial cryptocurrency.

Added to this situation is the judicial politics of Knights of Malta member Leonard Leo, former executive vice president of the Federalist Society and board of trustee member of the Catholic University of America. In an article by Coral Davenport at The New York Times, she discusses how Leo's influence, along with powerful donors like the Koch brothers, helped secure the nomination and confirmation of five Supreme Court justices: John Roberts, Samuel Alito Jr., Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

In line with my post in the Government by Judiciary series, I will note that the major lever of power that the vile Mr. Thiel and his colleagues depend on is mass media propaganda, which includes the use of the social disease of social media and that that power is a product of the Supreme Court rulings permitting the media, including the "social media" to lie without having to risk being sued into the flames of hell, especially when it's lying about policy and about Democratic politicians.  Lies told with that impunity in the mass media, echoed in the NYC-DC-Atlanta echo chamber are what they buy with their billions.  Lies that get them what they want, the kind of Senators and others they want.  Their servants.

That "right" is one which will be changed in the future or we will have no future, it will either be changed by a fascist oligarchy or other gangster ruled nation, such as billioniares around the world are working in concert to spread - when only lies against those without power and on behalf of those with power will be permitted AND HARD TRUTH ABOUT THOSE WITH POWER WILL BE ABOLISHED - or it will be changed by egalitarian democrats as a proven necessity to prevent despotism which gains power through malicious lying and preying on the worst character flaws and weakness of an effective margin of the population.  Though having an 18th century Constitution that didn't understand that and the daffiest rulings of the most benevolent Supreme Court "justices" dictating to us in the 21st century is certainly on their side, too.

I had a discussion with a family member who wondered what "woke" meant, as our discussion developed, it became clear that it means whatever the person using it wanted it to mean, whether hating Black People demanding equality or just "fuck the libs."   Like so many of the instantly introduced, no doubt oligarchy audience tested slogans instantly picked up and pushed by the corporate media, they don't really mean much except vote for the Republican-fascists.  Peter Thiel is one of the worst, he is a perfect example of the total amorality of secularism on technological Ayn Randian steroids even as apparently he proclaims one of the most heretical versions of "christianity" there is.  A "christianity" without Jesus and his core teachings but replaces it with the tech-important commandment "don't copy our neighbor" or as they used to say on a PBS show in the early years of personal computing, "don't copy that floppy."   Though I doubt anyone in that business has ever not copied a neighbor's code.   He personifies my contention that anything which opposes doing unto others what you would have them do unto you is deadly for egalitarian democracy or, really, even non-egalitarian representative democracy.   To ratfuck that you will need, in the end, to corrupt an effective margin of the voters and our Supreme Court mandated protection for liars is their greatest tool.  You will only be free if you know the truth, the mass media is largely in the business of keeping you from knowing enough of it do be free.  That's what they call "journalistic ethics."

The decision on Roe v. Wade, the decision to severely limit the federal government's authority to reduce carbon dioxide from power plants, and Thiel's successful "investments" attest to the statement that money has power and power is gained through money.

This Sunday's readings are a clarion call to realize that all efforts rooted in self-aggrandizement and enrichment are nothing more than "vanity of vanities," steeped in political and economic greed that has funded people into powerful positions who create and support new forms of ideology and idolatry, often sustained by untruths.

For a country professing "one nation under God" in its Pledge of Allegiance, how far away many of the nation's oligarchs and leaders are from the spirit, the Divine, instead embodying a belief in an imperial, hegemonic deity as portrayed by male biblical writers and now embraced by many Christian and Catholic evangelical fundamentalists.

In that interview of Walter Brueggemann I'm thinking of transcribing, he talks about being invited to speak at an Episcopal Church and it happened the date of his talk was the eleventh of September.  He said he might have refused the job if he'd realized the date when he spoke.  He talked about the line from Jeremiah 4 that was in the liturgy for the day, the one that talked about the hot wind coming from the desert, one which will destroy and not cleanse, which, in the context of Jeremiah certainly referred to either the Assyrians or Babylonians who, then, were repeatedly attacking the Jerusalem establishment and the country.  Brueggemann noted that in contemporary terms in the United States, with our injustice which was cited in the beginning of this article at The National Catholic Reporter, what they might consider is that God sent the hot wind because God will not be mocked without consequences.  And what has changed in the United States that doesn't continue to mock God?  Certainly the "white evangelicals" who carry the Trump-Republican-fascist line with lies of religion is even more of a mockery than it was during the Bush II regime.  Though

This week's article commenting on the Sunday readings by Carol J. Dempsey is so good, I'm just going to recommend you read the whole thing.  

An Important Distinction To Notice

 “That is the problem of many today who claim to be traditionalists. They are not traditionalists, they are backwardists.  Tradition is the root of inspiration in order to go forward in the church."

Pope Francis yesterday. 

Works for so many things, "originalists," "textualists," etc.

Art Is Harder Than Reporting

LISTENING TO THE INTERVIEW with Walter Brueggemann again to get that excerpt used here the other day, I noticed so much in it that I'm sure I didn't get when I first listened to it several years back.  One of the things he pointed out was how the historical-critical method of dealing with scripture trying to pin down what's left of "authenticity" once they've dissected it and figured out "who" wrote what lines and even parts of lines as well as the fideistic practice of the "evangelical" churches missed an important fact about the scripture, that it's not so much a denotative text in which set meanings are set out as in academic discourse, it is an artistic literature that is so rich in content, often dealing with things that it's impossible to grasp in that way and pin down.  It's poetry which not only has different goals but is at such a different way to use language which demands expansion in the thoughts and minds of those who hear and read it.

Poetry, at least good poetry, does that.  It presents images and implications that must be understood through the evocation of the life experience and understanding of its readers in ways that are more demanding than the same background to expository writing and even scientific and mathematical description.  Far from being slight and airy-fairy, good poetry is far more demanding of the readers and listeners.  The idea that the standards, practices and methods of science and the academic pretense that other, less focused and reductionist topics of study can practice those to come to the same kind of fixed, limited, reliable knowledge are more rigorous than poetry strikes me as being a financial issue, that those topics can get you wealth while poetry will get you a life.  As I had to tell many people, compared to playing Beethoven, calculus is easy. Which is relevant to what is said in the interview.  And the Bible is a lot harder than Beethoven.

The sometimes heard snark of sci-guys like Sagan or Krauss or the pseudo-sci guys like Pinker ask why there isn't any scientific knowledge in the Bible, ignoring or forgetting that there is, actually, content which scientists get really pissed off about when science mirrors it.  Such as the one that's often brought up, the Big Bang and the materialist-atheist-scientistic rejection of that science until they couldn't and, in some cases, even after that.  But the fact is that's not what those who came up with the individual books were focused on.  

You may as well reject any other academic field that doesn't give you an answer to basic physics or astronomy texts.  When the author(s) of the first eleven or so verses in Genesis came up with that, they weren't doing physics, they weren't publishing a description of the physics of the it, they were telling us something about Creation, that it was good, later, that People's use of and experience of what's wrong with it it came from us, not from Creation and God.  Mixed into that poetic imagery was stuff we don't find especially useful for understanding, the talking snake, but that's poetry for you.  There's junk in Lucretius that's not especially useful to modern consideration and there's really no more science in it, just as there isn't in much of the ancient lit that is more congenial to post-WWII sci-guy atheists and religion haters but you never hear them challenge that.  Heck, there are masses of late 18th-19th century romantic and racist crap in much of the scientific literature and they haven't done much to get rid of that.  Even when it has gotten millions of People killed.  Especially within biology and its allied sciences and the pseudo-sciences that latched onto it such as psychology.

I may get round to expanding on that because I'm toying with the idea of going through that interview in my typical way because that's only one of the issues that is worth going through for a week or a month in it.  Though many others online would be as good I think the back and forth between the two hosts and Walter Brueggemann adds to the long informed observations of Brueggemann in a way that supplements even his excellent sermons and lectures which I've found so important.  

Fats Navarro - Oo-Bop Sh'bam

 

 

Kenny Clarke And His 52nd Street Boys: Kenny Dorham, Fats Navarro (trumpet) Sonny Stitt (alto saxophone) Ray Abrams (tenor saxophone) Eddie DeVerteuil (baritone saxophone) Bud Powell (piano) John Collins (guitar) Al Hall (bass) Kenny Clarke (drums) NYC, September 5, 1946

Ben Weber - Fantasia (Variations) op. 24 - William Masselos piano

 

It's a long time since I posted some music, I was thinking about this piece by a too much forgotten composer.

About Pope Francis Accepting A Great Honor Bestowed On Him And The Critics Of That Act

IN THE CRITICISM of Pope Francis for having a great honor done to him, of him having a head-dress given him by a Chief Wilton Littlechild and placing it on his head, some of the inevitable controversy of him making a remarkable penitential trip to Canada to first meet and directly apologize to First Nations People for the Catholic Church's part in the often horrible residential school system set up by the Canadian Government was intensified.  I think quite unfairly. 

Chief Wilton Littlechild, a residential school survivor himself, gave Francis the headdress Monday, placing it on his head amid cheering by an audience in Maskwacis, Alberta, that included many school survivors.

The Vatican and the pope clearly appreciated the gesture: Francis kissed Littlechild's hands after receiving the headdress, something he has done in the past as a sign of respect for Holocaust survivors, and has done on this trip for residential school survivors.

I haven't watched much of the trip, though the ceremonies on his landing in which the governmental leaders of Canada came after him first meeting and talking with First Nations leaders and elders was just as it should have been.  This is a trip for them, for Pope Francis to issue an apology and more.  If it had merely been for the purpose of issuing an apology instead of actually changing things, it probably would have been a useless exercise.  I think he has tried to do that and may well have done more than that, though time will tell what changes in reality in the lives of First Nations People.

But this is about the controversy over the gift and its acceptance on the terms of those who gave it.

What was Pope Francis to do?  Refuse the honor?  Refuse to have it placed on his head by a man who, from what I have read by people who should understand the situation better than I do, went through the traditional leadership of his Nation to bestow an honor on Pope Francis?  No doubt, if he'd done either it would have a. been the cause of deep hurt to People who it clearly meant a lot to to give him the honor, b. been taken as an insult to everyone, including those who are slamming him now.  I am certain that insult would be being complained of right now by many of the very same People who are upset that he accepted an honor he apparently didn't ask for.  If that's right what they say they preferred would have been instantly transformed into an insult for not accepting it.

I don't know how far in advance Pope Francis knew he was going to be given the gift full of such meaning and potentially so controversial.  If, as I guess, he didn't know until it was offered to him, that it was a surprise gift, the greatest hurt would have been in summarily refusing it or refusing to have it placed on him.  He must have known or sensed that it was a situation that called for him to be passive and to accept the honor with humility and grace.  From what I saw of the footage of the event, he handled it as well as anyone could possibly have been expected to.  I think those who gave it to him have every right to feel good about what they did for the reasons THEY determined.  Pope Francis is not Calvin Coolidge, he has repeatedly gone farther than any previous Pope in insisting on justice for First Nations People, Native People of the New World, Africa, etc. To blame him for what happened before is as inaccurate as it is unfair. He can apologize on behalf of the Church he leads as the Head of State or Prime Minister of Canada can on behalf of those entities, that's something far different from incurring personal culpability for what was done, much of it before he was born.

The whole thing reminds me of the Catholic reactionaries and fascists going into a swivet about the Amazonian Synod held at the Vatican and the erection of Pachamama statues, deeply meaningful symbols to that cultural tradition which were vandalized and destroyed by those who despise Francis and equal justice.  I think in that Francis, probably knowingly, made himself open to those who he could count on to criticize and attack him to accommodate the People on whose behalf the synod was held.   I don't know of any previous Pope who has gone so far in that direction to prove his profound respect.

Such an outsider as I am certainly has no legitimate point of view in the whole thing EXCEPT, POSSIBLY TO HONOR THE GOOD INTENTIONS OF THOSE WHO GAVE HIM THE HONOR.  I do not know how such a decision as to bestow the honor and, I'd guess, symbol of moral responsibility on the part of Pope Francis, becomes the business of anyone EXCEPT THOSE WHO DECIDED WHETHER OR NOT TO BESTOW THE HONOR.  If other People from other Nations were offended by it, I'd first like to know what business it is of theirs to take offense at the decision of People certainly qualified to make that decision.  Their decision was due the same respect as the decision of others in other Nations to not do that.  Or so it would seem to me.  For outsiders to second-guess their decision seems to me to be as disrespectful as anything involved in the controversy.

The dishonor to the People who gave the gift bothers me as much as the criticism of Pope Francis.

A spokeswoman for Littlechild didn't immediately respond Tuesday to a message seeking comment.

But Keeshon Littlechild used a Facebook post to defend his grandfather for giving Francis one of his own many headdresses.

"Bugs me to see people bashing my grandfather and I understand how much respect is needed to be gifted one but at the end of the day that was him showing the pope respect for coming all the way to maskwacis to apologize," he wrote.

Among those coming to Littlechild's defense was Phil Fontaine, a former Assembly of First Nations chief and a residential school survivor.

"Chief Littlechild followed his protocols," Fontaine said. "There is a protocol for that kind of gift. He went to the elders, he went to the leadership and requested permission to present that gift. It is entirely consistent with the way they follow their customs and protocol here."

I really would like an explanation of those critics of those who bestowed the honor or Pope Francis for accepting an honor given him by others to explain how they would have avoided anyone doing something that caused anyone to be offended, or to express offense, if he a. accepted the honor or, b. turned it down.  

You have to ask any of the critics of this who may have demanded such a trip be made, just what good would you want to come out of such a trip, and what could be done and would have been enough to satisfy them.

The problems with this repeatedly requested and even demanded penetiential visit to Canada were certainly obvious in that large numbers of People would never be satisfied no matter what Pope Francis did.  He could have taken the coward's way out, typical of lesser world leaders and clerics, and refused to do anything, letting the issue of the profound apology he has given lapse and be an ever  cooling issue of the future.  I am certain that he knew a trip of this kind would be the focus of criticism, whenever there are people looking for political advantage in something like this, there is no way to avoid that because, as this shows, such opportunities will always be advantageously used.  And even among People of good will, there will always be those for whom even the most sincere and actually productive acts and statements will never satisfy them.
 

The People who decided to give the honor and gift to Pope Francis deserved to have their decision respected, above all, something that Pope Francis did.  I think that his part in it was gracious,  even humble as receiving a gift should be, especially in such a context.  And as he must have been aware that it, like everything he does, will be made hay of one way or another.  Accepting an honor from People who desire to give you one is an act of respect, in a way, a gift back to those who give it SHOWING YOU HONOR AND RESPECT THEM.   Third parties may have their opinions on that giving and reception but they are third-parties to it.  Their non-participation is their decision, their disapproval of it is their decision too.
 

When his election as Pope was announced the lefty blogs c. 2013, exploded with rumors from what I assumed were Marxists that as Archbishop he had been in some ways complicit with the military junta that the United States backed, one which murdered many thousands of People.  As I was already pretty tired of Marxists by that time, I thought they were a bunch of jerks.  I also thought that after the two dreadful papacies of John Paul II and Benedict XVI, from the second his name was announced, to his appearnace in a plain white robe instead of the scarlet velvet and ermine that had been prepared for him, to his asking People in his dioces to pray for him and kiss their children for him, it was like morning was coming back.
 

Also,  as soon as his chosen name was announced, many of the same people refused to believe he was taking the name of Francis of Assisi, saying he must mean a less saintly and popular saint. Francis Xavier, Francis de Sales. I had to break it to them that when a Catholic says St. Francis without any other name, they could only ever mean St. Francis.

One of the more surprising and apt descriptions I've ever heard of Pope Francis, the most pastorally able, or,, rather caring Pope since the atypically pastoral Good Pope John XXIII was when David Bentley Hart, an Orthodox believer, described him as "a tough guy" saying that as an Argentinian going through the late 20th century, he would have had to be. Of course, that's right.  I think the mixture of graciousness and toughness, seeing where the hits are going to come and knowing those always will, his decision to honor those who honored him and take the hits was the right one.

He handled it like a great statesman pastor would have, I think the feelings of those who gave him the honor take precedence over those not involved, certainly over however I would feel about it.  I hope they are not too hurt by the critics whose involvement is tangential, at best.

". . . if each judge is to be governed by his own convictions of what is right or otherwise, I fear that restraints upon judicial, rather than upon legislative action, will be demanded by the people, ever jealous of the accumulation of power in the hands of a few."

If you are wondering how much longer this series is going to last,  I'm ending here on page 27 of 34 pages, so a few days more.  If I could manage it, right now, I'd have gone on with the book and there would be hundreds of pages, no doubt the ninety-one years since Boudin turned this outline into a massive book would furnish even more on the subject. 

A lot of, especially, liberals will fret about the fate of much of the civil rights decisions made by the Warren and even Burger Courts and details of other decisions important to the pursit of equality by nullifying state laws that codified segregation, American apartheid and other, such terrors of the past.  My answer to that is that those prior decisions are already lost in the Roberts-Alito, Republican-fascist Court, now lost by ruling or shadow-docket de facto rulings and what few remain, in tatters, are best considered gone, too. The Roberts-Alito Court are in the process of annulling anything good that happened in the 20th century, they'll probably get around to annulling anything positive done subsequently or previously, as well.  They are on track to be the worst Court since Taney and may find ways to outdo that rightly villified Court.

Since the quotes against government by judiciary in this article argue against the dangers of what was used by previous Courts to explain some of their most important equality and civil rights rulings, I need to go into that at length before giving them.  Those rulings, rulings based on things and words not explicitly found in the letter of the Constution but which the subsequent decades and centuries proved were absolutely required for any kind of decent government and life in the United States, a right to privacy certainly one of the most important which is central to issues of such "national emergency" as the outlawing of safe abortion. Something which I would argue was rationally considered so basic to a sense of deceny and honor by the short-sighted founders, that they took it for granted.

And it is an emergency.  NEVER should the recent overturning of Roe be separated from the absolute fact that by outlawing safe, medically administered abortion, they have guaranteed a horrific reality that its replacement is not no-abortions but deadly and dangerous ones as well as deadly and dangerous pregnancies as well as those that no sense of justice nor reasoning would allow any person of any moral sense to insist must never be terminated,

- the 10-year-old rape victim from Ohio who Republican-fascists have lied about,

- the woman whose water broke early in a pregnancy with its state legislature producing horrors,

- the state-mandaited contuned ectopic prgancies other impossible to bring to term pregnancies were required to be continuee UNTIL THE WOMEN'S  HEALTH AND LIVES WERE COMPROMISED and, certainly through prosecutors ideological campaigns of political and professional self-promotion, even those which would certainly be fatal will be prosecuted in some states.

- and untold other horrors.  

That is the reality of what the Roberts-Alito Court did in league with Republican-fascist legislatures, what courts before Roe v. Wade and legislatures dominated by and often exclusively made up of men determined was permitted under the Constitution, decade after decade, generation after generation of maimed, terrorized, dead women under the regime of illegal abortion, which I never remember many later anti-abortion folk doing much of anything to end as it was an epidemic.

Never should it be minimized how little men will notice an emergency that Women experience, or white people will notice an emergency among People of Color, or rich people will notice among the destitute, the poor or even the middle-class. Such an emergency went on in the United States for generations, in full horror before Roe v. Wade was decided. There is nothing to prevent that national non-feasance to not happen again except direct action by those affected by the emergency.   Amy Coney Barrett and Clarence Thomas are as uncaring and unmoved by the consequences for People of Color and, especially in the case of both of them, Women, as Alito or Gorsuch or Kavanaugh, or Roberts. Economic class may explain that, the rich will always be able to get safe abortions without danger of prosecution, no matter what the law says.

The issue of the imperfections of the Constitution (to use an entirely inadequate word) things included in it and not included in it and the virtual impossibility to amend it for acheiveing the most obvious ends of common equal justice - WE CAN'T EVEN GET THE EQUAL RIGHTS AMENDMENT IN IT, FOR PETE'S SAKE! - is behind all of this.  The impossible, cumbersome and, with the permission of the media to lie with impunity, billionaire and millionaire funded lie campaigns, means of amending the Constitution in a 50 state, as opposed to a 13 state nation is another of the problems that has led to exactly what "Mr. Justice Knox" warned of in the extract I used as a title.

The basic and drastic amendment of the Constitution is needed in so many areas that the maintenance of the thing as an object of worshipful veneration which one is prohibited to question in ways that NO religious text or object is venerated, is not sustainable.  Changing it cannot be put off to later ages  or the very thing lauded as providing for our safety, our freedom, our security will be our undoing.  

I think it already is that as the Roberts-Alito Court, Republican-fascist Senatorial manipulation of process, first the Bush II regime then the Trump one are foisted on us by both the Electoral College - with some help from the likes of James Comey and the corporate media- and by the fiat of five "justices" such as those in Bush v. Gore. The thing is thoroughly gamed but it is still an object of unquestionable veneration, as is the extra-Constitutional power which judges and "justices" gave themselves without any legislature of the last decades of the 18th century or any since ratifying.  

There is no such thing as a perfect human creation.  There is no such thing as the best human creation which cannot be corrupted in use and with the inevitable amendments of time, generations and the accretions of habits of thought and action and the commentary on the original that is the bread and butter of judges and "justices" and law scholars.  No two-hundred or even hundred year old constitution is going to escape that anymore than any of the ancient systems of government or law did. If The Law of Moses could degenerate into the latter day corruption of the Kings of Israel and Judea, so will any.  

The United States Constitution, whatever the foresight of those who wrote it may have been, encodes the near impossibility of taking that into account.  Jefferson, of whom I have been so critical in many things, especially in regard to slavery, got it right when he said Constitutions should be redone every few decades.  I don't take that idea lightly, the writing of constitutions and laws is full to the top of dangers, that is as true for such supreme laws as constitutions are supposed to be as it is for any statute passed by a town council or state legislature or the Congress OR BY POPULAR VOTE. Benjamin Franklin's statement about keeping a republic was as prescient as Jefferson's and far more to the point.  If we do not follow the commandment of equality on which any valid modern concept of democracy must rest, to do to others as we would have them to do us, it all rots out.  I would point out that that notion appears nowhere in the Constitution, in fact if it were explicitly held to be the basis of law, clauses in it would be held up in objection by those who habitually hate Abrahamic monotheism and all religion as by those who hate equal justice. I think some of the most popular of Supreme Court rulings have helped those who hate equal justice a lot more than those who do believe that that absolute standard of justice is an absolute law. All pretenses of the civil liberties industry aside.

We are in the national emergencies such foresighted judges and some of our greatest presidents could see coming with that power of Supreme Courts but not only from that.

                                                         IV

A change no less striking has taken place, since the power of the courts to annul legislation has been more freely exercised and has come to be generally recognized, in the attitude of our judges and in the opinions of our public men as regards the question:  How far shall this power extend?   Even after the decision in the Dred Scott case the existence of this power was not admitted by our leading statesmen except in a very limited sense.  Lincoln denied its binding force in our modern sense, that is, as a rule of political conduct. And even those who admitted it as a rule of political conduct did not by any means, until very recent times, give it the broad scope which it now possesses.  The older and more conservative point of view is clearly stated in the opinions of the very judges who asserted and used this power at its earlier stages of development.

I noted yesterday how we have been habituated to this kind of thing to the extent that even those informed of the problems with it will have a very hard time imagining the law or politics without that Supreme Court power hanging over it or seen as the limiting factor. I am sure that often it is seen or, rather, felt as a limiting factor when legislation is drafted.  The "codification of Roe" that is so breezily talked about is no guarantee that the Roberts-Alito Court or one further ratfucked by Republican-fascists in the Senate and the Federalist fascist Society will let such a codification stand, no doubt Alito's clerks will dig up some other spectral-evidence relying 17th century English judge to base such an overturning on.  

Judge Iredell was one of the first members of the United States Supreme Court to claim this power.  He advocated it even before the adoption of the federal Constitution;  for he was leading counsel in the case of Bayard v. Singleton, noticed above, on the side which urged the right of the North Carolina state court to declare unconstitutional the state law at that time under review.  As an associate justice of United States Supreme Court he asserted this power before the decision in Marbury v. Madison, as we have seen in our examination of the case of Calder v. Bull.  We have also seen that he regarded this power as of an "awful nature," never to be resorted to except in a clear and urgent case.  A further examination of his opinion will show that he considered the power to be limited to those cases in which the legislative enactment violated the very letter of an express prohibition of the Constitution.  He emphatically repudiated, as we have seen, the theory that an act passed by Congress or by a state legislature, within the general scope of its constitutional power, could be pronounced to be void merely because it was deemed by the court to be contrary to the principles of natural justice.  He based this conclusion on the assumption that each and every legislature was "possessed of an equal right of opinion" with any court as to what the principles of natural justice were.  The hundred-odd years which have passed since Justice Iredell wrote this opinion have certainly wrought havoc with his antiquated ideas regarding the competence of legislatures and the functions of courts.

You have to wonder what Iredell and the others quoted in this article would say if they could foresee the use by subsequent "justices" of the power they claimed was necessary in the most dire of circumstances.  The extent to which, given the possibility of a legislature doing bad things, judges such as Iredell believed that any more trust could be put in judges and "justices" to do the right thing being behind this notion of this government by judiciary should be considered.  Sometimes that faith will be better based than others, I would certainly put it in the courts than in state legislatures in the Trump election-stealing cases, but there are others when I certainly wouldn't trust them.  I will point out in regard to that, that the elections laws making a vote in the Congress based on the majority of any states delegations producing one vote to solve the puzzle of the failed Electoral College was one of the worst ideas anyone ever had. For anyone who puts their faith in the genius of the "founders" their anti-democratic inclusion of the Electoral College, with its dangerously bizarre and so disastrously ammended features is absolute proof that they put their breeches on one foot at a time, just like we do today.

More than half a century later, at a time when the judicial power had firmly established itself and on the eve of its great coup in the Dred Scott case, the utterances of the courts regarding the limitations upon their authority remained the same.  In 1853 the judges of the Pennsylvania supreme court wrote a series of notable opinions on this subject, in the case of Sharpless v. The Mayor.  The leading opinion was written by Chief Justice Jermiah S. Black, one of the greatest constitutional lawyers of his generation, and soon afterwards successively attorney-general and secretary of state of the United States.  The decision rendered in this case and the opinions upon which it is based are very interesting reading.  They give much food for thought to the constitutional lawyer of to-day and to the student of our existing political institutions.  Among the points decided in that case are the following:

"In determining whether an act of the legislature is constitutional or not, we must look to the body of the constitution itself for reasons.  The general principles of justice, liberty and right, not contained or expressed in that instrument, are no proper elements of a judicial decision upon it.

If such an act be within the general grant of legislative power, that is, if it be in its character and essence a law, and if it be not forbidden, expressly or impliedly, either by the state or federal constitution, it is valid.

To make it void, it must be clearly not an exercise of legislative authority, or else be forbidden so plainly, as to leave the case free from all doubt."

In their opinions the judges specifically state that by "forbidden expressly or impliedly": they mean just what they say:  that there must be something in the Constitution, state or federal, which shows plainly, so as to leave no room for any doubt, that the Constitution intends to forbid just such a law as that under consideration, and that such general prohibitions as that "no person shall be deprived of life, liberty or property without due process of law" do not furnish a sufficient basis for declaring a legislative act unconstitutional, unless, indeed, the act be such as cannot be properly called a law or an act of legislation at all. . .

I have to wonder if the Pennsylvania "justices" may have had some inkling of the direction that legal thinking was going in regard to the massive expansion of Supreme Court power which was coming a few years later with such disastrous results.  I would like to know the pre-Dred Scott scholastic scribbling that might have been going on just as so many of the horrors of the Roberts-Alito Court were the wet-dreams of millionaire and billionaire financed, oligarch-friendly law school scholars and scribblers.  But I am neither competent nor at leisure to make such a document search. I have pointed out above that the very certain defects, deficiencies and distortions of the United States Constitution mean that even the modest dependence on the words of it by even previous "justices" to reign in court power can be used, as certainly, by "justices" for the most malignant of purposes, such as Alito in the overturning of Roe.  I don't think that us depending on either the written text nor on the "penumbras" of meaning flowing from them is fool-proof in the long run.  Look at how the segregationists and white supremacists use the words of The Reverend Martin Luther King jr. to oppose equality and things such as affirmative action which he championed.  Dishonest judges and "justices" like all dishonest people can do the most remarkable things with words and even ideas to turn them on their heads.  Such is the stuff of Supreme Court decisions.  

. . . Chief Justice Black said, in his opinion:

"We are urged to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust.  But we cannot do this.

. . . I am thoroughly convinced that the words of the constitution furnish the only test to determine the validity of a statute,  and that all arguments based on general principles outside of the constitution must be addressed to the people, and not to us.  A proposition which results so plainly as this does, from the reason of the thing, can scarcely need the aid of authority . . . . But, if the doctrine I am denying could be allowed to prevail,  it would decide this case in favor of the plaintiffs without looking into the constitution at all;  for it must be admitted that such measures cannot be sustained on principles of moral justice or propriety . . . There is another rule which must govern us in cases like this;  namely, that we can declare an act of Assembly void only when it violates the constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds."

And Mr. Justice Knox, in a concurring opinion said:

"The presumption is that the legislature has judged correctly of its own constitutional power and the contrary must be clearly demonstrated before a coordinate branch of the government can be called upon to interfere between the people and their immediate representatives.

In ascertaining whether there has been this clear usurpation by the law-making power, I agree with the Chief Justice and Mr. Justice Woodward, that the tests to be applied are: 1. Is the act in the nature of a legislative power?  2. Does the Constitution expressly, or by necessary implication, forbid the exercise of such a power? . . .

I am aware that under this rule acts may be passed which will, in the minds of may persons, be contrary to natural justice, and subversive of the just rights of the people.  The remedy is to be found in further constitutional restrictions upon legislation, not in restraints imposed by the judiciary.  The limit of the power of the people's representatives should be written upon the pages of the constitution, rather than remain in the breasts of our judges.

There is great danger in recognizing the existence of a power in the judiciary to annul legislative action, without some fixed rule by which such power is to be measured.  Our opinions are so diversified and varied,  that what to one mind may seem clearly right and proper, to another will appear to be fraught with imminent danger.  If we have not a certain standard by which to test the constitutionality of legislative enactments, if each judge is to be governed by his own convictions of what is right or otherwise, I fear that restraints upon judicial, rather than upon legislative action, will be demanded by the people, ever jealous of the accumulation of power in the hands of a few."

As subsequent history proved, that power in the hands of fewer than ten unelected, lifetime power-holding "justices" has been fraught with danger and the potential of them doing enormous injustice.  That on rare occasions, it may have produced some good can't reliably make up for that danger. Yet nothing is done under the Constitution to reign them in.  As I said, it will take a democratic, egalitarian President and Congress to do that, I cannot foresee a future Court abandoning that self-created power nor would I depend on the amendment process to be so un-rigged and so-ungamed in the Republican-fascist dominated states to do such a vitally important thing. And even then it will be very dangerous because a future Trump and Republican-fascist, or similar, regime could use that,too.  If a future Constitution could do it, other countries seem to have managed to avoid it when we have not.