Head Note

Blogger seems to be friggin' around with font size this morning.  I've tried over and over again to fix it and maybe this next try will do it.  Just to let you know, I noticed it. 

"I do positively deny that they have any such power . . . which no judiciary ought ever to possess"

IN HIS OBLITERATION of the arguments in favor of the Supreme Court legitimately holding the power it created for itself in the Marbury v. Madison ruling, you are reminded at every point that Louis Boudin, whatever else he was, was a very well trained 19th century attorney whose exhaustive citation of the record can get rather thick at times.  

But, then, he was refuting other such lawyers so he had to make a fuller use of the documentary evidence than they did.  In his case - it help to ignore the citations unless you need to - his brilliant and lively refutation of their citations teaches you a lot along the way.   I've read a lot of him and have looked at many, though not all, of his cited materials and have been enormously impressed with his thoroughness and honesty - as well as his exposure of the sloppiness and dishonesty of those he is refuting.   

I hope you appreciate the work it is to type all of this, especially those citations and hope you make the effort to at least read what Boudin said - the passages in bold italics.   He effectively destroyed the historical and Constitutional excuses for the Marbury power grab.  I have commented in his text mostly to call attention to his most salient points and to point out that what was already terrible in 1911 is made ever worse by the more than a century of Supreme Court legislating and annulling of thuggishness from their bench.   He starts with the first of the four refutations of Associate "justice" Lurton dealing with the pre-Constitutional record. 

I

In this inquiry we may take as a starting point the proposition, which is not disputed by Judge Lurton, that at the time of the American Revolution the power of the judiciary to annul legislation regularly enacted by the legislative-department did not exist anywhere in the civilized world.  

It did not exist in England, which we took as a model in framing our government.  Blackstone, who enjoyed in the United States great influence as a writer on all legal subjects during the years following the Revolution, in discussing the question whether "acts of parliament contrary to reason are void," said:

"If the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with autority to control it;  and the examples usually alleged in support of this sense of the rule do none of them prove that,  where the main object of a statute is unreasonable, the judges are at liberty to reject it;  for that were to set the judicial power above that of the legislature, which would be subversive of all government . . . . There is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as to leave no doubt whether it was the intent of the legislature or no . . . . So long therefore as the English constitution lasts, we may venture to affirm that the power of parliament is absolute and without control."

And Montesquieu, whose authority Judge Lurton invokes, gives no support to the judge's argument.  It is indeed one of the ironies of fate that Montesquieu should be cited as authority for the supremacy of the judiciary over the legislature, in view of that philosopher's well-known admiration for the English government system of that day, upon which he based his theory of the division of the governmental powers.  

A reading of his works will prove conclusively that nothing could have been further from his mind than the ideas imputed to him by Judge Lurton.  Judge Lurton himself quotes from Montesquieu the following passage,  which to the ordinary mind would seem to dispose of the matter very effectually:  "In republics," says the great French philosopher,"the very nature of the constitution requires the judges to follow the letter of the law;  otherwise the law might be explained to the prejudice of citizens in cases where their honor, property or life is concerned.""  But Judge Lurton, true to our judicial tradition, established in recent years, "interprets" this passage by a method that is neither plain nor simple, but which does violence to ordinary common sense;  and he certainly "explains it to the prejudice" of its author.  

Significantly enough,  Judge Lurton is not able to quote a single line from Montesquieu which would in any way countenance his fanciful interpretation. 

In his appeal to American usage Judge Lurton fares no better than his appeal to foreign authority.  He says on this point:

"From the beginning it [the power to declare legislation void for unconstitutionality] has been claimed by American Courts as a proper function of the Courts under our American constitutional system.  It is a doctrine which originated in the Courts of the States long before the adoption of the Federal Constitution.  

Professor Thayer, in his Constitutional Cases, refers to no less than five decisions by State Courts prior to the adoption of the Constitution of the United States, in which it was held that the power of State legislation was limited by constitutional restrictions,  and that it was the duty of the judicial power to declare legislation repugnant to such superior law void and unenforceable whenever necessary to determine the rights of parties in pending cases.  The earliest reported cases is that of Commonwealth v. Caton, decided by the Virginia Court of Appeals in 1782."

And then he adds, wonderingly:

"Neither that case, nor either of the decisions I refer to , are cited by Chief Justice Marshal in Marbury v. Madison,  although they afford a body of opinion of commanding influence which one cannot suppose the great Chief Justice to have been ignorant of, especially as one of them was from his own state." 

The fact that Chief Justice Marshall did not quote these cases should have warned Judge Lurton that they do not "afford a body of opinion of commanding influence."  In fact, they afford nothing of the sort.  They simply prove that, shortly before the time of the adoption of the Constitution, a few judges made isolated and timid attempts to exercise such powers.  

These attempts aroused general indignation,  and the judges were called to account for their conduct.  A brief statement of three of these cases will suffice to reproduce the historical atmosphere.  The first two cases which Judge Lurton finds in Professor Thayer's collection may be ignored, because they do not deal with legislative enactments which were in conflict with written constitutions.*   

The three cases which require notice are:  Rutgers v Waddington, (New York, 1784); Trevett v. Weeden (Rhode Island, 1786);  and Den v Singleton, also known as Bayard v. Singleton (North Carolina 1787).

Rutgers v. Waddington was decided by an inferior New York court, the mayor's court of New York City.  The law under consideration was a New York statute which was claimed to be in conflict with the law of nations and the treaty of peace with Great Britain.  The court specifically declared the power of the legislature to be supreme in all matters of legislation and not subject to any reviseory power of the court;  but it disregarded the portion of the statue which was called into question on the theory that the legislature could not have intended to violate the law of nations and bring the United States into conflict with treaty obligations. 

This decision brought forth a storm of protests.  Mass meetings were called to protest against the usurpation of power by the judiciary, and ringing resolutions denouncing it were adopted.  The New York Assembly took  a hand in the matter, and passed the following resolution:

"Resolved, that the judgment aforesaid is, in its tendency, subversive of all law and good order and leads directly to anarchy and confusion; because if a court instituted for the benefit and government of a corporation [I assume they mean New York City. AM] may take upon them to dispense with and act in direct violation of a plain and known law of the State, all other courts, either superior or inferior, may do the like; and therewith will end all our dear-bought rights and privileges, and the legislatures become useless."

The case was compromised and never went to the supreme court. 

Trevett v Weeden was the first of these cases in which it may fairly be said that a law was declared unconstitutional.   The legislature of Rhode Island tried to force a paper currency on an unwilling people.  It made the refusal to take paper money instead of specie a criminal offence and abolished trial by jury in this class of case.  It was the abolition of trial by jury that was declared unconstitutional.

The legislature immediately passed a resolution condemning the decision and cited the judges to appear before its bar and answer for their conduct.  The judges obeyed the summons but justified their conduct by claiming independence.  A motion was made to remove them from office;  but, as their term of office was soon to expire, the legislature, which had the appointment of their successors, let them serve out their term, and then dropped them all except one, and appointed others who did not claim any such powers for the judiciary.

I will break in to note that if the law was, in fact, forced on "an unwilling People,"  just as their elected representatives put the usurping judges out of office,  The People could put the presuming legislators out of office.  But We The People cannot get rid of presuming and usurping members of the Supreme Court, turning them out of office.  And their Marbury rulings - and others - can't be overturned by the next ELECTED Congress at least not so long as the Congress and Executive are duped into accepting the Marbury power grab.   It's no wonder that such an action could arouse that kind of direct public action in the Revolutionary generation which we are duped and gulled into foregoing under the PR operation that cheats us of justice. 

This next case is especially noteworthy because one of the vocal opponents of nullification by judges, Richard D. Spraight, was one of the more active framers of the Constitution under which Marshall et al, none of them framers, claimed to have created the Marbury power.  Especially note this passage in what Spraight said, "it is immaterial what law they have declared void; it is their usurpation of the authority to do it, that I complain of, as I do positively deny that they have any such power."

Bayrd v Singleton, which was decided in North Carolina while the Philadelphia Constitutional Convention was in session, was also a case where the legislature attempted to force upon an unwilling people an unjust law depriving those whom it affected of a jury trial.  In this case, also, the law abolishing trial by jury was declared unconstitutional.   And in this case also the decision called forth a storm of excitement and protest.  One of its severest critics was Richard D. Staight, one of the framers of the Constitution, and afterwards governor of his state.  In his denunciation of this decision he said:

" I do not pretend to vindicate the law which has been the subject of controversy;  it is immaterial what law they have declared void; it is their usurpation of the authority to do it, that I complain of, as I do positively deny that they have any such power . . . It would have been absurd, and contrary to the practice of all the world, had the constitution vested such power in them,  as would have operated as an absolute negative of the proceedings of the legislature, which no judiciary ought ever to possess, and the state, instead of being governed by the representatives in general assembly would be subject to the will of three individuals, who united in their own persons the legislative and judiciary powers, which no monarch in Europe enjoys, and which would be more despotic than the Roman decemvirate, and equally insufferable."  

This quote might be be the most important in this long passage to remember due to the claims of those who favor the very power for the Supreme Court that was so strongly rejected by one of the framers.  

Note that Spraight said, explicitly about the power of judges to declare laws unconstitutional, "which no judiciary ought ever to possess."  And that he became the governor of the state, so he had the support of those who voted.  I'm sure we would have disagreed about some of the most important things there are but he correctly predicted the consequences of judges and "justices" being able to overturn duly passed laws of the legislature,  "the representatives in general assembly would be subject to the will of three individuals, who united in their own persons the legislative and judiciary powers, which no monarch in Europe enjoys, and which would be more despotic than the Roman decemvirate, and equally insufferable."

That certainly describes life under the Roberts Court, especially after Trump v. USA and their coronation of the stupid mad king Donald.  

If such a provision had been slipped into the Constitution, this case being so much on his mind, he would certainly have vocally and vigorously opposed its inclusion at the Constitutional Convention.  In fact he was not the only opponent of such judicial supremacy in the Constitutional Convention and the bodies in the state that adopted the written Constitution.   The total lack of agitation around the claimed power is deafening in its absence as to the fact that that power appeared nowhere in the Constitution.  Only subsequent generations were dulled into acquiescence though the time and stealth of the Supreme Court using it for anything of importance, about fifty four years between the trivial case in which the power was invented by Marshall and its first significant and disastrous use in the Dred Scott decision was enough of a lag for it to be forgotten that it was an issue that the Revolutionary generation rallied against as much as it was never a power the "justices" got from the Constitution.  The fact that the slave-power and white supremacy, one of the greatest forces of evil in the country, was served by that first significant use of the power is certainly an issue as to why it so solidly got cemented into the way the actual government works.  

It is entirely fair of me to point out that Lurton was a Confederate who lied about his own war history, especially his time as a prisoner of war, to enhance his own career.  It is certainly a fair assumption to suspect he was such a great supporter of the Marbury power because it had been so useful to his own ideology and his own prospering.   He was hardly the only "justice" that was true of then AND IT IS CERTAINLY THE CASE WITH THE SIX REPUBLICAN-FASCISTS USING IT TO REIMPOSE APARTHEID ON THE UNITED STATES.  That history isn't dead or past.  It's absolutely topical right now and into the future. 

Such were the state "precedents," and such was the temper of the people at the time of the Philadelphia Convention met to frame the United States Constitution.  Small wonder that Chief Justice Marshall did not refer to his decision in Marbury v Madison to these "precedents."  He was too near in point of time to this "body of opinion" to hazard citing it in support of his contention without considerable damage to his reputation.  

Marshall was quite prepared to falsify the record of his own lifetime, as I noted the historian Charles Beard documented his lying about the adoption of the Constitution as being a decisive approval by the country at large in his judicial record but when he wrote his biography of Washington he honestly said that it was adopted by the skin of its teeth.  Though he didn't note the dodgy manner in which that adoption was carried out in states such as New York and Massachusetts as well as others.  Marshall was a lawyer and lawyers are trained in the art of lying.  Any uniformly honest ones have to be among those who are outliers in that profession. 

*  Here is Boudin's footnote in which he disposes of those cases by showing they are not relevant to the claims of the Constitutionality of the Marbury power.  It's worth noting if for no other reason than to show how typically dishonest those supporting that power grab are:

1.  Paxton's case (Massachusetts Superior Court 1761), is not on point, because the writ of assistance issued to Paxton, of which the validity was questioned was not issued by the legislature of the colony but by the judges;  and its validity was questioned, not because its issue was alleged to be in conflict with any written constitution, for there was no such constitution in existence, but because its issue was alleged to be contrary to English law.  The justices were unanimously of the opinion that the writ might be granted.  Professor Thayer does not reproduce the case (which was briefly reported in Quincy, pp. 51-57);  but from the appendix to Quincy's Reports, p 520, (Cases on Constitutional Law, vol i p. 48) he reprints an abstract of the argument of counsel (Otis), to the effect that the act of Parliament under which the writ was issued was of no effect because contrary to the laws of nature."  Some English judges had expressed the same notion - that laws contrary to natural law were void - but no such doctrine was ever established in Great Britain, nor does the decisinon in Paxton's case indicate that the Massachusetts judges accepted it.

I will remind you of the citation of the fine historian Paul Finkelmann, about the shifty sometimes citation and sometimes rejection of natural law by no less than John Marshall when it suited whatever result he favored IN BINDING SUPREME COURT DECISIONS.  I'm not ideologically opposed to the notion of natural law, though I have yet to find a consistent definition of what that is, but I know when a "justice" or an ideological polemicist invokes it my bullshit sensors go off scale. 

Commonwealth v. Caton, (Virginia Court of Appeals, 1782; 4 Call, 5; Thayer, Cases, vol i p. 55) - the only case which Judge Lurton names - is not in point because the court had before it nothing resembling a legislative enactment.  What was before the court was an attempt on the part of one house of the legislature to grant to certain persons, convicted of treason, a pardon, which could be granted only by the concurrent action of the two houses.  On its face the alleged pardon was nothing but a bill which had failed to become law and no court in the world would have treated it as possessing any force.  Professor Thayer reprints the case because the judges declared obiter that they were competent to determine the validity of legislative enactments alleged to be in conflict with the constitution of the state. 

Notice that Associate "justice" Lurton cites cases in which legislative enactments were not at question, repeatedly, asserting that they prove his case in favor of judges being able to annul legislative enactments. 

I have the strongest suspicion that Lurton relied heavily on law clerks, probably products of the same elite law schools that that gang of gangster lawyers in training come from today, to come up with his citations.  The same thing that Alito certainly did in coming up with his late medieval English judges to justify state legislatures controlling Women's bodies without much bothering to check if those were valid precedents to a modern case.  If Lurton would have been as knowingly shameless in citing cases that were not on point as, apparently, Alito has been in citing judges that sentenced Women to be burned as witches, would be interesting to know. 

** I'll give you another of Boudin's substantial footnotes which shows his thoroughness in presenting evidence. 

"2  There is another case, earlier than Commonwealth v. Caton, which is not mentioned by Professor Thayer or Judge Lurton, but which seems in point.  The text of the decision is not preserved,  but its character seems well attested.  In Holmes f. Walton (New Jersey Supreme Court 1780; American Historical Review, fol. i, pp. 456 st seq.), a state law making certain cases triable by a jury of six was set aside, apparently because in conflict with the state constitution.  This decision aroused popular protests similar to those noted above in the other cases:  complaints "poured in upon the Assembly."  The lower house attempted to confirm the law; but the Council opposed this action, and the matter was compromised.  

For the sake of making our review complete, it may be said that in a letter form John B. Cutting to Thomas Jefferson, dated London, July 11 1788, it is stated that a law of Massachusetts had been pronounced unconstitutional by the supreme court of that state, and that it had been repealed at the next session of the legislature (Massachusetts Historical Society, Proceedings, 1903, second series, vol vii, p 507).  Of this case there is no record nor is there any there mention."

Voting Isn't The Promised Land - Having The Representation Due To You And Answerable To You Is A Lot Farther Down The Road

EVEN IN OUR  degraded form of democracy,  GETTING REPRESENTATION IN THE GOVERNMENT AND HAVING THE GOVERNMENT ACT IN THE PUBLIC GOOD IS THE WHOLE POINT OF VOTING.  Without that it's no better than North Korea or any other place where they vote but don't get representation.   Parts of our population have been under that theft of their representation from the start, at times to similar results that the North Korean People get from their votes. 

And that is a thing that the elites, the oligarchs, the slave-holders, the financiers, the speculators and crooks and the rest of what accurately describes just about every member of the Continental Congress and what turned into the constitutional convention sought to keep from happening even as they went through the motions of "majoritarian government" by having voting.  

They couldn't very well break the habits of the common People of voting, well, those men who were allowed to vote, if they wanted to talk them into fighting their desired revolution.   But at the time of the ratification of the Constitution and long before that* they were making sure that they could steal the representation allotted to People who were not allowed to vote on the basis of the rules set up.  Women, Black People, Native Americans, . . . 

Infamously, nowadays, that is if the person even knows it, white men had a severe property ownership requirement for voting in most places - so even many, in many places most white men couldn't vote.

The enslaved were counted for purposes of representation but they weren't allowed representation, neither in the infamous 3/5ths compromise nor as the Emancipation Proclamation mixed with Jim Crow gave the grandsons of the original slave-power the 2/5ths in addition to the three they had already stolen - THAT IS, IN FACT, WHAT THE ROBERTS COURT REIMPOSED ON THE COUNTRY IN THEIR OBLITERATION OF THE VOTING RIGHTS ACT,  so don't tell me the issues of what I have been writing about are ancient history.   The Roberts Court is obliterating every part of the struggle for equality,  they'd bring us back to de jure slavery and Clarence Thomas would as much as Goresuch, Kavanaugh or that genteel racist,  Roberts.   They're still stealing land from the Indians like they were from the start. 

Gerrymandering, something that started as soon as representation was tied to electoral districts is an overt form of vote rigging - HOLDING AN ELECTION BUT MAKING SURE THAT THOSE YOU DON'T WANT TO HAVE REPRESENTATION DON'T GET IT.   That's true if race has little to do with it.  Gerrymandering is practiced in Maine which frequently has the shameful distinction of being the whitest state in the country but where state legislature and senate districts are rigged regularly to have that effect.   And the Roberts Court OKed partisan gerrymandering which is the cover they gave to the racial gerrymandering they just approved of.   

As I said vote rigging so as to give those favored more representation than those you don't favor is baked into the structure of the Senate, in which voters in large population states are deprived of proportional representation as compared to a host of states with tiny populations, some of which have only one House district, but they get their full say in the Senate where a majority of the seats controlling control of it belong to a ridiculously small part of the national population.   We'll never see that rectified by amendment because of the power that such states hold in such disproportion,  not until things get so bad that the Constitution totally fails and a new one has to be negotiated.   Though I think the representatives of the largest states could put pressure on the tiny population states by refusing to send them the federal money that they receive in such absurd disproportion so long as the Senate exists as it does today.  Me, I'd favor its abolition,  it's an abomination. 

And with that Senatorial vote rigging comes the fucking Electoral College which, since it is based on the entire Congressional representation, including the Senate,  as well gives tiny population states more electoral power than their numbers warrant.

I'll point out that Maine, where I live,  is one of those states I think should not have that kind of representation in either the Senate or the Electoral College,  I think small population states should be counted for representation across state lines to come to something more like just equity.   The practice of Maine and, as I recall, Nebraska splitting their electoral votes on the basis of voting districts is hardly a full solution to that last inequity.   And, frankly,  I doubt that would be the reason most of the Republian-fascist states would do it, it would be to get as many Republican-fascist votes in the Electoral College as possible.   As I recall Maine's decision was in some stab at "being fair."  

And all of that ratfucking of representation to favor the oligarchs, the white supremacists, the misogynists, etc. turns out to be an actual danger to the actual ability of the unfavored to cast a vote or to have it counted.    Our system is inherently corrupt and that corruption such as I describe above, has been used to prevent People from voting even after the passage of the Civil Rights Amendments which made their right to vote THE GODDAMNED CONSTITUTIONAL LAW.   So don't give me that bull shit about the vote being the point of it all, BECAUSE EVEN YOU GUYS PROVE THAT THAT'S A LIE.    And the Roberts Court as courts from the start, have protected that vote rigging on behalf of you guys. 

This has been a response. 

*  When, during the revolution, the "several states" were being billed for their part in financing the revolutionary army and the administration - such as it was - of it the slave-power in the Southern States insisted that slaves not be counted as population so that those states' share would not be apportioned with them counted.  BUT as soon as the Constitution was being drafted, in many cases the same People and certainly the same states insisted that slaves be counted in full when it came to proportional representation EVEN THOUGH THAT "REPRESENTATION" WOULD GO TO THOSE WHO HELD THEM VIOLENTLY IN SLAVERY.   The original abomination of the 3/5ths provision was a compromise after they blackmailed the entire group of framers (and that was certainly not an authorized use of that assembly, but that's another issue to be pointed out) as they repeatedly blackmailed to get more than they were owed over and over again.  AND THAT! IS WHAT HAPPENS WHEN YOU HAVE UNEQUAL REPRESENTATION IN GOVERNMENT. 

Entirely Cheaper

I think the First Prostitute,  literally,  Melania,  didn't want to sit with the White House Correspondents because she knows they're all bigger whores than she ever was.  And so, so much cheaper. 

The Roberts Court Is Taking The Marbury Powers Places All Of Its Champions From Marshall To Taney . . . They Could Not Have Predicted Such A Degenerate Court As Would Issue Trump v USA

I WILL NOT be posting more installments of this series going through the extremely careful and honest AND ABSOLUTELY TIMELY IN JULY 2026 article by Louis Boudin,  Government by Judiciary over the weekend.    I know that readership of such things goes down on weekends and holidays and this is about as important and serious a topic as we have before us.   

As was noted a hundred fifteen years ago by Louis Boudin, even the total success by even mere early 20th century "progressives" could not be guaranteed by their winning control of the Congress and the presidency because any laws they passed by the indisputably prescribed means laid out in the Constitution would reliably be annulled (annulling a duly enacted piece of legislation is an explicitly legislative action) by the Supreme Court under the usurped powers adopted by no Congress, the combined legislatures of the several states, by a massive referendum victory by Voters but by the assertion of fewer than ten appointed members of the Supreme Court in 1803.* 

The things which Boudin and those on his side of this question struggled against in the first decades of the 20th Century,  a reaction to decades of reactionary Supreme Courts,  anti-worker, anti-Women, anti-Black, anti-minority, PRO-MILLIONAIRE, PRO-CORPORATION, PRO-WHITE SUPREMACY "justices" acting under the Marbury Power, are exactly what we face today, only far worse. 

In 1911 faced a situation unlike that in which the likes of Marshall and Story who, having created that power out of thin air were careful not to cite it in the series of appalling rulings they made but after Taney et al who did use it in the most evil and disaster-provoking ruling the Court had made up till that time,  the Dred Scott decision and subsequent Courts went hog-wild on using that power which proved so evil and disastrous in its first important use.  They generally haven't had motives any higher than Taney's were.    

After the passage of the emergency Civil War Amendments, many previsions of which were passed to fulfill the broken promises of the Declaration of Independence,  what the Reverend King rightly called an unpaid "promissory note,"  and much of which was explicitly meant to nullify by Constitutional means the worst of the Dred Scott decision,  the Supreme Court twisted, lied about, nullified and turned especially the 14th Amendment on its head to achieve the political, economic and social goals of the robber barons, the gilded-age oligarchs, the pre and post-Plessey slavers and white supremacists - many of which could accurately describe members of the Court or those who were their patrons.   The contemporary questioning of the court at that time was a reaction to the terrible use of the Marbury power by the Court. 

If it hadn't been used primarily in the interests of the robber barons, the oligarchy,  white supremacists, it would never have been so vigorously protected against its critics.  As Boudin noted in the response I posted on Tuesday, the more evidence against it you put up, the more likely your article or book won't be published or taken seriously. 

The lying lore supporting the Marbury power and the other atrocities that the Supreme Court had practiced, with which it repeatedly handed victory to those who had been defeated in elections, overturning those winners of elections who passed even the mildest of provisions to ensure justice.  Especially economic justice - equality and making true that lie that is inscribed over the front of the Supreme Court's fascist marble palace - "Equal Justice Under Law - would not be the actual law of the United States,  

After the very brief and entirely atypical years of the Warren Court and, to a lesser extent, the Berger Courts, we have been for most of the past half-century in a period of Supreme Court right-wing activism which steadily gained steam after the appointments of Nixon,  Reagan, Bush I, Bush II and Trump where the Court under Roberts has outdone every previous Court in doing what the gilded-age Courts set the previous record for.  

Emboldened by the Rehnquist Court's stealing an election for their majorities party in 2000 - an action so blatant and repulsive that two of the Republicans sitting on the court dissented from it along with Democratic appointees - the Roberts Court is taking the Marbury powers places that I doubt all of its champions from Marshall and Taney up to and including the associate Justice who Boudin spent most of his article refuting decisively, could not have intended.  They could not have predicted such a degenerate Court as would issue Trump v USA which coronated Trump a monarch immune from prosecution and rendered the now so-called "Department of 'justice'" his secret and personal lawyers.   And that's only one of the many actions of the Roberts Court which could be listed.  Apart from those giving control of Womens' bodies over to state legislators - resulting in deaths and bodily harm to Women - the nullification of the Voters Rights Act, provisions of the Civil Rights Acts and other actions by which they have revived the American apartheid system which the earlier "justices" would have supported. 

The agitation to once and for all nullify Marbury by Congressional action, executive action (certainly made far riskier by the Supreme Court's own remarkably corrupt and epically stupid decisions) and a combination of the two which Boudin noted was an entirely honest way to do what was almost certainly neither required by the truth being told about the Constitution and certainly would be rendered impossible by the prescribed means of amendment of the Constitution the refusal of a president and Congress to allow that Court usurpation of power, the engine of the greatest corruption and evil that that Court has done to keep going along with it. 

What Boudin and his colleagues had to say in reaction to a century the legislating Court then is made a century MORE needed today because the Court's corruption has gone on a century longer than was long enough, already.   

For today I'll give Boudin's statement of Judge Lurton's claims in an article which he wrote in reaction to.  I will break in with comments.   I should mention that I've tried to type out exactly what Boudin wrote - I don't catch every typo or elision though I don't think I've let any pass through, so far - but I have made paragraph breaks in places the printed article doesn't for ease of reading and for emphasis in places I think that emphasis is made newly exigent due to the dangers the Court has produced. 

But this is by no means admitted by the other side. Indeed, it is emphatically denied, at least as far as the conclusions are concerned.

Some time after Mr. Roosevelt delivered his famous speech at Denver, Mr. Justice Lurton, of the United States Supreme Court, delivered an address on the subject to the joint bar associations of Virginia and Maryland. That address was subsequently published as the leading article in the January issue of the North American Review, under the title: "A Government of Law or a Government of Men? " In that article the distinguished jurist states what may be termed the" conservative"position on the subject,  which is diametrically opposed to that just stated. 

Judge Lurton categorically denies that the courts now exercise any legislative powers,that is to say, powers involving the exercise of  discretion or the following out of political policies.

I have noted here a number of times a remark that the great, late Old Testament scholar and master Preacher Walter Brueggemann made that, oddly enough, the self-proclaimed  "textualist-originalist" the late Associate "justice" Antonin Scalia never found anything in his asserted non-discretionary reading of the text of the Constitution which didn't support exactly what Scalia wanted it to say.  The claim that the Supreme Court, unanswerable to any higher court, hasn't, from the time that Marshall was uniformly reading it to support his own economic self-interest as the most slave-holding of all the "justices" (same with Taney) and up to today when the wealthy members of today's Court have given Trump the power to fire and pack all boards of all so-called independent agencies EXCEPT THE ONE WHOSE PACKING MIGHT IMPACT THE SAFETY OF THEIR OWN INVESTMENTS AND, SO WEALTH are certainly exercising an especially corrupt form of discretion in their asserted reading of the Constitution and the laws and statutes, etc. 

Seeing the actions of the Supreme Court, many, though not all of the lower courts, the refusal of bar associations to cancel the licenses of some of the most corrupt gangster lawyers in an effectivly timely fasion, . . . the cowardly ass-covering of lawyers in their testimony in front of Congress, as opposed to military officers and diplomats (the first Trump impeachment inquiries), the false promises of effective protection all during Trump I which would be delivered by the likes of Robert Mueller, other legal actions taken by even honest lawyers and right down to my shock at hearing a lawyer I still consider to be an honest and honorable one assert that there is such a thing as a "right to lie,"  I think the entire legal profession, from the lowest of the low (such as Micheal Cohen) right up to the top,  Sotomayor, Brown-Jackson, is corrupted by the ubiquitous permission of lawyers to lie on behalf of their clients or their own interest.   After the shattering corruption of the legal profession that I've witnessed,   I don't think anyone who has made an honest assessment of it has any reason, whatsoever to put more trust in the judiciary than in the reputedly corrupt Congress.   I will say there are SOME state legislatures I have somewhat more trust in but in a very large number of states,  and not all of them those in the traitorous Confederate states, I don't trust any more than I trust the Roberts Court. 
 

He asserts heroically that,in declaring legislation unconstitutional,  our courts merely  apply the law as they find it plainly written in the Constitution,precisely as any court applies the law in any ordinary judgment. He then proceeds to defend this power generally, and he closes with an appeal to his
readers to:

"rejoice that in standing by the institutions made us the most law-abiding people on the earth, that we are walking in the footsteps of our fathers when we maintain in letter and spirit that division of the great functions of government which the men of Massachusetts and the men of Virginia and the men of Maryland declared with Montesquieu to be the best security for a government of laws and the only safeguard against a return to a government of men."

Today it is only necessary to cite the gun-murder rates of the United States to say that Lurton's claims were a bald-faced lie of the type that is a lawyers' mother tongue.   And that was even before the Supreme Court legalized the reign of corruption which Trump II has been,  the Roberts Court issuing that ruling AFTER THE MASSIVE CRIME AND CORRUPTION OF TRUMP I, BUSH II, BUSH I (Roberts was thick as thieves with the action of George H.W. Bush to pardon his ass out of criminal investigation) and the previous holders of records of members of an administration convicted of felonies,  Reagan and Richard Nixon. 

Even in 1911,  Lurton was lying like the corporate lawyer he was. 

I will give you the rest of Boudin's introduction to his hands-down winning case only asking you to either believe me, for now, that he does demolish Lurton or to read the rest of his article, yourself or, better, to read the two volumes of Government by Judiciary which he anticipated in this article: "Indeed, the evidence against some of them is so overwhelming that its complete presentation would require several volumes."

Judge Lurton's appeal to American traditions puts his opponents in the awkward position of unpatriotic men,trying  to undo the work of the great men who established this government,  and of reactionaries, attempting to abolish one of the most effective safeguards of our free institutions against the tyranny " government of men." 

It is, therefore, but fair that we should inquire into the facts of the case, historical and contemporary, and compare them with the assertions on which Judge Lurton bases his conclusions, in an endeavor to arrive at an independent judgement as to whether or not his conclusions are warranted by the facts of the case. 

The salient points of Judge Lurton's argument, asserted by him as matters of fact, are as follows:

(1) That the framers of the Constitution, owing to their philosophical training in the school of Montesquieu and the governmental usage of the states prior to the adoption of the  United States Constitution, considered it necessary to invest the judiciary with the power to annul legislation whenever the judges should find it to be unconstitutional. 

(2)  That by the constitution framed by them, they intended to invest, and did in fact invest the judiciary with such power.

(3)  That the judiciary of this country has exercised that power ever since, in the manner in which the framers of the Constitution intended it to be exercised, without any change; and that the exercise of this power for "more than a century" has made us "the most law-abiding people of the earth."

(4) That the rules of "constitutional construction" applied by our sourts in the exercise of this power are so plain and simple that their application does not, in fact, involve any element of discretion; and that the courts, therefore, never have exercised, nor do they now exercise, any legislative powers in annulling legislative acts on the ground of alleged unconstitutionality.

On this last point, which is perhaps the most important,  Judge Lurton says:

" There is nothing in the past history of either the National or State judiciary which gives sanction to any such abuse of power or supports an expectation that the function of interpreting will be tortured into an exercise of legislative power.  The rules of construction are plain and simple of application.  They are in substance identical, whether the instrument of interpretation to be a statute or a contract." 

A careful examination of "the facts of the case," it seems to me, will show conclusively that each and every one of these propositions is erroneous.  Indeed, the evidence against some of them is so overwhelming that its complete presentation would require several volumes.  It is my purpose in the following pages to take up Judge Lurton's position point by point, and to present as much of what I consider to be the evidence against it as may be compressed into the narrow limits of a magazine essay.  An examination of these points, in the order stated by me, will also serve to present to the reader a historical picture of the growth of the power under consideration, showing its gradual development and the vast, indeed revolutionary, changes which have taken place in its application.  And this examination will, it seems to me, establish conclusively at least two points: first, that the power under consideration did not emerge in its present form from the rains of the framers, as Minerva sprang, fully panoplied, from the head of Jupiter;  and , second, that the epithet "revolutionary," applied by Judge Lurton to the demands of the progressives, could be more fitly applied to the latest actions of our courts. 

Geri Allen Trio, Dark Prince

 

I thought of this performance this morning and decided to post it again.   I really miss Geri Allen, maybe the finest pianist of her generation. 

the real legislative power is vested in this country not in Congress or the State legislatures, but in the courts, principally in the Supreme Court of the United States - We Are Repeating History Because We Have Been Kept From Learning From It

The most formidable obstacle, however, to the success of a labor party in this country is the fact that a mere legislative success would be insufficient to carry its program into execution. As shown in my articles on the “Political Situation in the United States and the Socialist Party,” the real legislative power is vested in this country not in Congress or the State legislatures, but in the courts, principally in the Supreme Court of the United States. In consequence, a success such as was achieved by the British Labor Party, that is the placing upon the statute books those of its proposals which it wants to become law, even if achieved through some miraculous combination of circumstances by an American Labor Party, would be barren of any real results. In fact it would leave the working class just where it was when it started out to organize the labor party, for the Supreme Court would undoubtedly declare each and every important measure which the labor party would succeed in forcing upon the statute books as “unconstitutional.” Indeed, it has already declared most of them, and not only the most radical of them either, “unconstitutional” in advance.

Louis Boudin: Prospects of a Labor Party in the U.S.  1910

IT WAS HARDLY only in regard to "radical" labor law that the United States Supreme Court has nullified the most vital of of legislation, as I noted yesterday that supposed giant of the American judiciary,   the author of the Marbury usurpation of the legislative power to that Court,  John Marshall had no problem overturning even the Constitutionally warranted power of the Congress to ban the importation of slaves into the United States.    The eminent historian and scholar of the law and American history,  Paul Finkelman summed up his documentation of the practice of 'justices" in regard to their playing fast and loose with the law and the Constitution said in regard to Marshall: 

On the bench Marshall always supported slavery, even when statutes and precedent were on the side of freedom. He also adjusted his jurisprudence when slavery cases were before him. For example, in embargo cases Marshall was famous for his flexible approach to admiralty, and declined to apply “technical niceties” of common law procedure to maritime cases. But in cases involving the illegal African slave trade, Marshall rigidly applied technical niceties, protecting slave traders from suffering for their illegal and immoral commerce. Similarly, Marshall used natural law arguments to defend property rights, to protect the inviolability of contracts, and to condemn bankruptcy laws. But, in The Antelope, Marshall emphatically rejected the legitimacy of using natural law to liberate Africans illegal[y] brought to the United States in violation of American law.

This jurisprudence reflected Marshall’s investment in slaves that was probably unmatched by any other member of the Supreme Court. It dovetailed with his lifetime commitment to slavery and his virulent hostility to the very presence of free blacks in the United States.

Supreme Injustice: Slavery in the Nation’s Highest Court

In the Oxford Academic abstract of the article it notes:

In Supreme Injustice, the prolific Paul Finkelman takes on the three most important Supreme Court justices of the antebellum era: John Marshall, Joseph Story, and Roger B. Taney. When questions regarding slavery came before them, all three justices “invariably voted against liberty and in favor of slavery” .

Most notable in regard to the false reputation of the Supreme Court in regard to its integrity or the soundess of its judicial proclamations,  THE TOTAL ABSURDITY OF DEPENDING ON THE COURT FOR THE PROTECTION OF OUR LIVES, OUR RIGHTS AND OUR FREEDOMS, it has to be noticed that of those three Story was "officially" anti-slavery, though he certainly found nothing in the law or the document that, after Marbury, the Court usurped the defining of, the Constitution which made him a reliable defender of even Free Black People who could provide evidence that they should not be kidnapped into slavery for the profit of the criminals who did that,  he was the author of the infamous Prigg decision which, if Dred Scott had not been issued, would stand as the most infamous slavery protecting ruling in Supreme Court history. 

And those were the years when the Court was somewhat reluctant to press their claimed authority to outright nullify duly adopted and even long standing federal law.   After Dred Scott it became routine for the Court to use that Supreme Court created power in case after case, whether it was against legally free Black People, in regard to their rights, in regard to their voting rights, in regard to them having what is, AFTER ALL THE ENTIRE REASON FOR WE THE PEOPLE TO HAVE A VOTE, IS TO BE REPRESENTED IN THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT WHICH THE ROBERTS COURT HAS ANNULLED. 

They repeatedly lied about provisions in the Constitution to favor employers over those they employed, worked to death, stole from, abused and oppressed.   That was the point which Boudin addressed in his open-eyed and realistic view of the futility of a "Labor Party" gaining office or even all of the elected offices of the United States because any law they passed was bound to be overturned by the Supreme Court which, as can be seen in reviewing the histories of those two eminent Chief "justices" and the associate "justice" who was reputed to be among he greatest legal scholars of his generation,  they can always come up with some legal language to justify laws or, in fact, the Constitution meaning whatever they want it to mean.  

The history of the United States can very accurately be read as a history of members of oppressed groups, whether minority groups, Black People and Native American People being the quintessential and eternal examples of that,  or Women or, even more a majority of the population, workers, or despised groups, OR JUST MEMBERS OF THE OPPOSING PARTY TO THAT WHICH ANY GIVEN "justice" BELONGS TO, ESPECIALLY WHEN THEIR PARTY IS IN THE MAJORITY ON THE COURT, having to struggle against the Constitution and, especially that far more real and consequential "constitution" the one which is a product of Supreme Court say-so, the one which actually can do everything from deprive People of their lesser rights, to keeping them from voting, having representation in the government or, IN FACT KILLING THEM.   

Abolition, Womens' Rights, other great and lesser civil rights struggles, the struggles of workers to their rights and even the right to not get killed on the job,  the right to their earned wages, the rights of all of us to such things as health care, all of them struggles which cost enormous work, emotional distress, blood and lives which finally resulted in federal or state laws - and not all of those struggles succeeded - THOUGH ANY OF THEM WHICH DID HAVE BEEN SUBJECTED TO SUPREME COURT NULLIFICATION. 

All of that is generally knocked back or knocked down by the Supreme Court which has been a reactionary force in favor of those who have against those who don't have.   Their clients have been those generally favored by the legal profession, those with the deepest pockets or those who they are allied with.   THAT HAS BEEN THE CASE OF THE SUPREME COURT IN REALITY INSTEAD OF THE NINA TOTENBERG,* TYPICAL "COURT REPORTER" STYLE OF PIOUS BULLSHIT THAT HAS BEEN FAR MORE OF A NARCOTIC THAN MARXISTS FALSELY BELIEVED RELIGION TO BE.   America's "civic religion" to use a putrid phrase beloved of the corrupt associate "justice" Sandra Day O'Connor,  is far stronger than the Gospel of Jesus, the Law of Moses or, certainly, any other Biblical prophesy in the oppression of Americans, the large majority of whom are included in that list above.   The founders fetish,  the asserted inerrancy of the framers, the asserted mystic wisdom of the Constitution and worst of all, the piety of that corrupt priesthood in black robes, the Supreme Court.   They are certainly as powerful if not actually more powerful than the Assembly of Experts in Iran,  they have exercised the same power to appoint a president and to crown one as a de-facto king within the past quarter of a century.   

American history in regard to the struggle to establish egalitarian democracy is a struggle against the established order, the wealthy, the established power,  the anti-democratic corruption baked into the Constitution in the form of the Senate and the Electoral College and the general struggle against our indigenous fascism, White Supremacy and its allied ideological schemers, but more than any of those it has been a struggle against the Marbury empowered Supreme Court. 

Without annulling the Marbury power the most popularly supported law adopted by even a unanimous  Congress and enthusiastically signed into law by a President with enormous approval of the Voters, even, as I pointed out was the case with the Voting Rights Act, a law passed and approved by more than one Congress and president will fall to the whim of a majority of the sitting members of the Supreme Court - and it should never be forgotten that the present court was a product of court packing by Republicans in concert with a billionaire financed court-packing campaign of decades in line with a blueprint for oligarchs and racists to dominate our county through the court drawn up more than a half a century ago by the putrid Louis Powell. 

In that response to criticism by the representative of Victor Berger, which I cited the other day,  Louis Boudin noted exactly that point and what it will really take in American politics AS THEY REALLY ARE INSTEAD OF IN THEORY to wrest the stolen power which enables them to thwart any progress toward egalitarian democracy.

What Mr. Ghent calls my “attack on Representative Berger,” was a criticism of Comrade [Victor] Berger for what I believe to be a serious tactical blunder, in dealing with the power of the judiciary to annul federal legislation on the alleged ground of “unconstitutionality” as if it were a power actually given to the judiciary by the Constitution, instead of treating it as sheer usurpation. I made the point that by conceding that this right was granted by the Constitution to the judiciary we have at one stroke irretrievably given up our case against the courts. Our complaint is then against the Constitution: which, in my opinion, makes a big difference from a practical point of view.

Mr. Ghent says:

“So far as the practical issue is concerned, the curtailment of the powers of the judiciary is just about as feasible as the amendment of the Constitution.”

In this he is clearly mistaken. The powers of the judiciary can be curtailed whenever a majority of the people seriously want it. Provided, of course, they know that this power is not given by the Constitution. But the Constitution cannot be amended except by the consent of three-fourths of all the States, which is a practical impossibility to obtain, has never been obtained, and never will be by ordinary peace means. But that is not all. From the point of view of agitation and propaganda there is quite a difference, and a very practical one, between an agitation against the Constitution, on the theory that the founders of this Republic and the framers of that document were either knaves or fools, and one against the present judges, or usurping a power never granted to them by the Constitution. I have no objection to knocking the Constitution. But that knocking is, from a practical point of view, on quite a different footing from an agitation against the usurpations of the judiciary. And it is because Comrade Berger’s Constitutional amendment makes the Constitution “the main point” on this question, and desires to “focus attention” upon it, instead of on the judiciary, that I criticised it.

Of course, were the power in question really given to the judiciary by the Constitution, we could not help it, we would then be compelled to fight it out on the field now chosen by Comrade Berger. But it wasn’t. Mr. Ghent says, however, that that is merely my opinion: “that the consensus of views and opinions printed about the time of the Constitutional Convention tend to support” a contrary opinion; and that it is “like the States Rights question which kept two generations of Americans in turmoil.”

Mr. Ghent is in error on some of these points at least. To begin with, it is not merely my opinion. It is the opinion of every unbiased student of the subject.

Mr. Ghent is also in error on the question of “consensus of views,” etc. I naturally cannot go here into the evidence of the subject. (I have presented some of it in The Call before). I will therefore merely re-state here my conclusions as I stated them in an article on the subject published in the current issue of the Political Science Quarterly. I there said:

“There undoubtedly were some men in the convention who favored the investing of the federal judiciary with general revisory powers over legislation; but all attempts to make the judiciary part of the legislative power of the Federal Government failed signally and had to be abandoned by their sponsors. The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by implication. And there is ample historical proof that — whatever the points of some — from the complete silence of the document, as to possible future development — the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the Constitution. They evidently assumed that such an extraordinary power could not be exercised unless expressly granted. And it is equally certain that had the convention given to the courts that power, either expressly or by necessary implication, apparent to the ordinary mind, the Constitution would have been overwhelmingly rejected by the people. A careful examination of all the evidence on the subject now extant leads to the conclusion that the Constitution was adopted by the Philadelphia Convention and ratified by the people of the States without any belief, without even a suspicion on the part of the great majority of those voting for it, whether in or out of the Constitutional Convention, that it contained any such implication.”

It should be remember in this connection that the Quarterly is not only a magazine of high standing in the scientific world, but is extremely conservative, and would not print any attack on our judiciary from a militant Socialist, unless it could be backed up by uncontrovertible proof. This subject of the judiciary is an extremely ticklish one with the intellectuals of our ruling class. Most of our magazines therefore absolutely refuse to publish any “opinion” such as mine. They will publish anything you like, including proposed amendments, etc., but not the “opinion” that the Constitution does not give the judiciary any such power as is here discussed. And the more evidence one gives in support of such an “opinion,” the worse. And even our purely scientific publications fight shy of the subject, and when they do print such “opinions,” they will only publish them if they are so worded that absolutely nothing of any historical value can be presented against them by any reactionary. It is therefore clear that had there been any such “consensus of views” as Ghent speaks of, my “opinion” would never have found expression on the pages of the Political Science Quarterly.

That last paragraph is where I left off on Tuesday.  

What was being debated then is, during the Roberts Court tyranny, as relevant to our lives and politics as it was then because all of that was papered over and suppressed.  The Court keeps playing the same role of thwarting equality and, so genuine democracy,  the rights of Women of Workers, of all of us to a clean environment free of the domination of robber barons and old-money oligarchs.  

It's time we noted the real engine of history in the United States, the train pulled backwards by the Supreme Court and the corruptions both actually in the Constitution, those which developed, especially under Supreme Court law making and Supreme Court nullification and amending of the thing as it really is and not as the words merely printed on paper. 

Of those the easiest to overturn is the Supreme Court Marbury power grab, it appears nowhere in the Constitution, it is, as it always was,  an invention of members of the Court, one which has a history of them exercising powers the Constitution never gave them and which, in fact, it explicitly delegates to the Congress and, in a way that the Congress can overcome by a super-majority, the presidency. 

If we don't, anyone who survives will face the same Supreme Court knocking down of reforms forever.  

*  And Nina Totenberg is one of the better ones.  

There is another; and in its binding force upon the American people this other Constitution is quite as important as the written document.

IN GOING THROUGH the article Government By Judiciary by Louis Boudin,  I left off with this paragraph:

The courts occupy a position of importance in our government such as they occupy in no other government, because, instead of dealing only with the rights of one man face to face with his fellow-men, as is the case in other governments, they here pass upon the fundamental governmental rights of the people as exercised through their legislative and executive officers.

Which makes the very important point that the powers given to the Court in the Constitution was quite strong, already but the power that the Court GAVE ITSELF in the Marbury ruling and in rulings that came after that, expanded the Court's power out of any proportion to that of any other such court in any other country.  I have read many legal scholars and others who have said the same thing, that in no other country and certainly no other deputed democracy does a Supreme Court take and wield such power as the one in the United States been allowed to wield.   That power is so out of proportion that it has only been denied by one sitting President I'm aware of,  Lincoln in his conduct of the Civil War and in issuing the Emancipation Proclamation.   It is widely acknowledged that, among other wartime acts by Lincoln's government that Chief "justice" Roger Taney was planning on striking down the Emancipation Proclamation from the bench, he died before he got to hear a legal challenge to it.    

I think that's unfortunate because I have every certainty there is that if if the Court had handed down that decision, WHICH IT ALMOST CERTAINLY WOULD HAVE, Lincoln would have told the Court to go blow air as he fought the war.   Though I think such a ruling could have resulted in the traitorous states to have won the war, such is the real danger of the Supreme Court as it really is.

If you think that's overwrought,  they have gradually overturned the Voting Rights Act which is every bit as important as the Emancipation Proclamation was and Democratic Presidents and Congresses have rolled over like a whipped dog giving up as the Rehnquist Court started that overturning and the Roberts Court have given the great-great-great grandchildren of the Confederate traitors the apartheid that previous Supreme Courts and conservative administrations and congresses have acquiesced to for lifetimes of Black People in many of and often the majority of states.   

White Supremacy, America's indigenous form of fascism is as dangerous and powerful as that which went by the name in other places.  And the Supreme Court except for a decade or two, has been dominated by those who favored it.  The Roberts Court is as racist in that regard as any other, including that most depraved of those in its rotten history as Clarence Thomas.  It has surpassed the Rehnquist Court in that regard. 

The article continues:

And it is the same position that is expressed in a very forcible and striking manner in an editorial article on " The Flexibility of the Law," which appeared recently in The Outlook.   The editor of the The Outlook said:

In our judgment the real Constitution of the United States, the Constitution under which we are living, the Constitution to which the decisions of all our subordinate courts must conform, the Constitution to which all legislative acts, whether State or National, are subject, is not the written Constitution which was formed in 1787. It is that written Constitution plus the decisions of the Supreme Court of the United States interpreting and applying it, and the habit of the Nation which has grown up under it. 

The Outlook has been criticised for talking about the written Constitution as though there were any other.  There is another; and in its binding force And it is the same position that is expressed in a very forcible and striking manner in an editorial article on " The Flexibility of the Law," which appeared recently in The Outlook.  

The editor of the The Outlook said:

In our judgment the real Constitution of the United States, the Constitution under which we are living, the Constitution to which the decisions of all our subordinate courts must conform, the Constitution to which all legislative acts, whether State or National, are subject, is not the written Constitution which was formed in 1787. It is that written Constitution plus the decisions of the Supreme Court of the United States interpreting and applying it, and the habit of the Nation which has grown up under it.  The Outlook has been criticised for talking about the written Constitution as though there were any other.  There is another; and in its binding force upon the American people this other Constitution is quite as important as the written document.

The Supreme Court of the United States decided by a majority of one that an income tax was constitutional. Then one judge changed his mind and the Supreme Court decided that an income tax was unconstitutional. It is now unquestioned, or at least unquestionable, that an income tax cannot constitutionally be levied by Congress upon the people of the United States. 

What makes such a tax unconstitutional is the Supreme Court's decision interpreting the written Constitution. What made the Supreme Court's decision, interpreting the written Constitution, is the decision of the one judge who changed his mind.

But this is by no means admitted by the other side. Indeed, it is emphatically denied, at least as far as the conclusions are concerned.

I will disagree with the editor of The Outlook, the "other Constitution" the one that exists on the basis of what the Court rules IS ENTIRELY MORE IMPORTANT THAN THE WORDS ON PAPER.   The long string of rulings twisting, annulling, lying about and changing the words of the 14th Amendment, other amendments,  parts of the so-called Bill of Rights, the long list of rulings abolishing duly enacted and at times long-standing laws adopted by Congress and signed into law by Presidents, IN FACT, AS IN THE CASE OF THE VOTING RIGHTS AND CIVIL RIGHTS ACTS, RETAINED AND STRENGTHENED AS LAWS BY MORE THAN ONE CONGRESS AND PRESIDENT, and as tellingly, long retained decisions of the Supreme Court, itself,  the written word of the Constitution is whatever the current Court majority says it is,  the document, itself and even in relation to the legislative history of the adoption of it and its amendments is a dirty wash rag used to white wash the filth that the Supreme Court makes the real law of the land.  

And there is the ruling of Bush v Gore in which five Republicans on the Court handed the presidency to their preferred candidate and, worse than that,  Trump v USA in which they made Republican presidents absolute monarchs which the law would not stop,  though they seem to have a bit of buyers remorse, they have not done much of any effectiveness to roll that back SO IMPORTANT IS THEIR FASCIST IDEOLOGY OF A UNITARY EXECUTIVE TO THEM.  No doubt in their Supreme judicial arrogance, they believe they could reign in one that attacked their offices or their preferences.   And no doubt they would succeed more with the traditional kind of Democratic president than they would a modern Republican one.   Democrats should elect non-lawyers with enough audacity to not have any illusions about the law as it really is or the dangers of the Supreme Court to democracy.  And I think it will take a strong NON-LAWYER who will not appoint anyone as Attorney General and other legal offices less clear sighted in regard to legal reality than they are.  Lawyers are trained to not see and not understand and not admit how things really are.  And those are the ones who retain some scruple against lying, themselves.   Supreme Court corruption has corrupted the very culture of the law and lawyers. 

The first such act that devalued the written Constitution is almost certainly the Marbury decision which, as I noted, written by a man who was not in on the framing of the Constitution,  Marshall, nullified laws written by actual framers of the Constitution such as Marshall's predecessor as Chief Justice and, earlier, a member of Congress, Oliver Ellsworth, and numerous other framers from the Constitutional Convention who passed the Court organization act including the provision that Marbury nullified.   And the Court that gave itself that power was, in fact, criticized for it by no less than Thomas Jefferson who predicted evil such as we are living with right now would come of it. 

The example given,  the flip-flop on the constitutionality of an income tax was mild compared to the long standing laws and rulings that the Roberts Court has flipped on,  which I hope will turn into the ultimate flop as it forces reform on that corrupt court and, as important as limiting the terms and expanding the Robert's McConnell, Federalist-fascist majority on the Court into minority status will be the Congressional nullification of the Marbury power grab which appears nowhere in the Constitution.  As Jefferson said in another letter:

The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the constitution which has given that power to them more than to the executive or legislative branches. 

That was certainly the case and it is is certain that that power was a consequence of the Supreme Court creating that matter out of thin air because the Congress didn't create it and the president didn't sign any such law into existence as provided for in the Constitution.   That members of congresses, especially those trained in the lore and traditions of the law and presidents may have stupidly believed that such a power originated in the Constitution of 1787 (which would certainly seem to have been a surprise to the framers whose Congressionally passed law was overturned in Marbury) or who were gulled by lore and tradition into accepting it doesn't do a thing to make it any more a duly adopted law of the United States under the written Constitution.  

They will publish anything you like, including proposed amendments, etc., but not the “opinion” that the Constitution does not give the judiciary any such power as is here discussed. And the more evidence one gives in support of such an “opinion,” the worse

I AM TORN between the intellectual honesty of attributing the arguments I'm going to make about destroying the powers of the Supreme Court as those have been usurped originally by the Marshall Court in 1803, the Marbury decision which is the source of most if not all of the most significant Supreme Court originated corruption of democracy in the United States,  and merely presenting the arguments without citation of the man who made those arguments in their most exigent of historical contexts and with voluminous citations by the likes of Abraham Lincoln who had argued much of the case against that in responding to the first truly significant and rightly abhorred use of that power in the Dred Scott decision.  

The reason is that in his younger days Louis Boudin had been something of a Marxist theoretician, though, from the evidence I can see of his career, he steadily became less impressed with Marxism the more he saw it in practice after the Russian Revolution and the immediate suppression and crimes of the budding Soviet system.   

I think he likely found that as American and other Marxist parties and their scribblers and thinkers went on, he became ever less impressed with that as, in fact, I've found I have the more of that same record has become available to read in extensive completeness online.   Of course, given the use of such a history by America's fascists, the white supremacists, the Republican (now overtly Republican-fascist) Party and oligarchy favoring individuals and groups, I expect that his Marxist identity will be used against his scholarship (which is of a quality you seldom find, these days) his reasoning (also, too) and his citations will be shoved aside by those who favor the tyranny of the Supreme Court which has been thwarting equality since the time of Marshall and democracy, as well, and the rights of minority groups, Women, workers, LGBTQ+, and even voters right to cast a vote and have the representation which was the point of the "majoritarian government" which the Constitution was explicitly claimed to set up to start with. *  

The Roberts Court, the only real current competition the Taney Court has for the title of "Most Evil"  through what it has imposed on the Country - the previous and somewhat less competition that the Rehnquist Court got runner-up for by, among other things, deciding the 2000 election in favor of the loser - have made newly topical the issues that Boudin raised in his original 1911 article and in his magisterial two-volume work of the same name (alas, though published more than ninety-five years ago, it is not under public domain).  How relevant that is can be seen in the opening paragraphs of his earlier article.  

GOVERNMENT BY JUDICIARY

THE most momentous question before the people of this country today is undoubtedly the question of the limits of the power of the judiciary to annul legislation for alleged unconstitutionality. When Mr. Roosevelt opened his campaign for the so-called " new nationalism," he was forced to make what was called by his opponents " an attack upon the judiciary." The general election that followed was largely fought, at least in the eastern part of the country, on the issue thus made; and the fight against the new nationalism has since been largely a fight for the preservation of the powers of the judiciary as they exist today.

The fact that Mr. Roosevelt denied the allegation,  claiming to have made no " attack " upon the judiciary, does not change the situation. It is of course true that Mr. Roosevelt did not  attack the judiciary as an institution: he merely criticised some of the decisions of one of our courts. 

But that court is the highest court in the land. And criticism of courts must be admitted to stand on an entirely different footing from criticism of other public functionaries, notably from that directed against legislative assemblies. 

Legislators-and, within certain circumscribed limits, executives-are vested with discretion to act as the public interest may, in their opinion, from time to time require. Criticism of their public acts does not necessarily involve anything more than the expression of a different opinion as to what is best calculated to promote the public good under certain circumstances. 

It is different with judges. They are not supposed to be vested with any discretion to act as they see fit in the interest of the public welfare. They are supposed to find the law written down in former decisions or in statutes, in the making of which they have no share, and to apply the law which they find to the facts of the cases presented to them, irrespective of their opinion of its wisdom or unwisdom. 

Ordinarily, therefore, criticism of the judgments of a court implies  a reflection upon either the legal knowledge or the integrity of its members.

Call me skeptical, but I doubt the "museum"  "AI" Teddy Roosevelt with whom Trump "conversed" and seems to have  believed in Trump's ignorance and senility to be the man, himself, was programmed to go after the Supreme Court as the real one did.  Such is how the Republican-fascist telling of history is, as much when it's a conservative white man who's been dead for more than a century as it is for Black and other minority figures who died within recent memory. 

I will have a lot more to say about this last sentence, especially in regard to the mania the present court has for overturning decisions made by previous Supreme Court majorities, even unanimous decisions aren't immune from their overturning.   Even in cases where a candidate declared themselves to hold a decision was "decided law" as they lied through their teeth to get confirmation, they have had no hesitation to overturn such decisions - so much for "legal knowledge" of Supreme Court "justices" when it comes to their knowledge of the law and even the Constitution which they claim to hold the last word on.  

There is no question as to the integrity of a large number of the members of the Supreme Court, at least when it comes to noting their complete lack of integrity.  That's a certainly made claim of the Roberts Court and certainly in previous courts.   The rare landmark rulings in which the Courts have not favored the wealthy, the powerful, the white-male, the employer, the oppressor are notable BECAUSE THEY ARE SURPRISING.   Their typical product isn't surprising in that regard    

I would, again, as I always will, remind you that the original hero of those who worship the Court, that the major holder and profiting from slavers, John Marshall never found a single time in favor of either an enslaved Person or, indeed, I believe I'm correct,  a free Black Person who could be enslaved even as he and many other members of that court directly profited from the slavery that they routinely enhanced and protected.  That was true even in the case of a man who illegally imported slaves into the United States in the period AFTER THE CONGRESS HAD BANNED THAT IMPORTATION AS THE ORIGINAL CONSTITUTION EXPLICITLY GAVE THEM THE POWER TO DO AFTER TWENTY YEARS UNDER THAT DOCUMENT.   

Far from the amber-filtered reverence and pious, soft-spoken, fawning presentation of the Supreme Court in flawless, academic English, an honest presentation of that court would show it has been the most corrupt branch of the government even as it has presented its corruption in the most anodyne of legal language bullshitese aiming to confuse and soothe the public as to the true nature of what they're getting up to to favor slave-holders, the de facto slave-power in the period of American apartheid after de jure emancipation, to favor wage-slavers of the working class,  Women, voter of the other party (a specialty of Courts starting with the period when the Federalists faced that first and tragically partial revolution as the slave holding Jefferson (and Madison) took office - the very origin of the Marbury decision and on to this year when the Roberts New Taney majority legalized racial gerrymandering in the guise of partisan gerrymandering against Democrats.   

The only guarantee of anything like integrity that comes with the holder of any public office is an effective possibility or likelihood of getting fired by the voters (not that that is any firm  guarantee) but in the case of the Supreme Court that inhibition of corruption is removed by the Constitution and the fact that the bar to impeachment is so high it has never been reached at that level of "justices" or the president.  The farther away from the possibility of effective firing by the voters, the more certain the corruption of the office and the Supreme Court has proven, over and over again throughout its history that that guarantee of corruption is most confirmed by the reality of what that court has become. 

Our courts are, however, in a different position-or, at least, it is claimed that they are in a different position-with respect to their power to declare legislation void for alleged unconstitutionality. It is claimed by those who criticise certain of the decisions of our courts on that subject that in dealing with constitutional questions our courts exercise legislative powers under the form of judicial decrees, and that the canons of criticism which usually apply to acts of legislatures are therefore applicable to our courts with respect to such decisions. It is this that Mr. Roosevelt implied, when he said, in his Denver speech:**

The courts occupy a position of importance in our government such as they occupy in no other government, because, instead of dealing only with the rights of one man face to face with his fellow-men, as is the case in other governments, they here pass upon the fundamental governmental rights of the people as exercised through their legislative and executive officers.

I may go through Louis Boudin's century old article at least as far as I get.  I admit that  Trump and the Republican-fascists' war in Iran,  Israel's genocides and expansion, American politics, law, the goddamned Court, the drought, the heat wave, the pervasive evil have got me down.  

I've found one of the ways to get through depression is to mount a project and I can't think of one more timely than to revive the knowledge of the objections of some of our most respectable persons,  Lincoln, foremost, to the most corrupt branch of the government and its usurpations of power on behalf of the like of  Trumpian fascism.  

The power that the Court gave itself in 1803 to nullify duly enacted laws - in that case provisions of the Court Act, which was written by a legislator, Oliver Ellsworth, who, unlike his successor as Chief Justice, John Marshall had been a member of the Constitutional Convention - he is believed to have authored the 3rd article dealing with the judiciary and the Supreme Court - and a host of other framers of the Constitution who adopted it as federal law including Madison - was not again exercised by the Supreme Court until the rightly infamous Taney Court used it to nullify key provisions of the Missouri Compromise which had stood as federal law for more than thirty years - and which had restricted the spread of slavery and which the Taney Court used to, in effect, nullify free state bans on slavery within their jurisdictions.  I can't think of any significant use of it by a Supreme Court which was not evil.  I've been compiling a list and intend that to become part of this series.  As the fact that the rate at which those Marbury cases seems to be accelerating, not becoming in any way rarer as the Roberts Court tyrannizes us and through its empowering of Trumpian fascism in the executive and legislative branches.  

*Louis Boudin, in his response to criticism by a socialist in regard to his 1911 article made this point:

It should be remember in this connection that the Quarterly is not only a magazine of high standing in the scientific world, but is extremely conservative, and would not print any attack on our judiciary from a militant Socialist, unless it could be backed up by uncontrovertible proof. This subject of the judiciary is an extremely ticklish one with the intellectuals of our ruling class. Most of our magazines therefore absolutely refuse to publish any “opinion” such as mine. They will publish anything you like, including proposed amendments, etc., but not the “opinion” that the Constitution does not give the judiciary any such power as is here discussed. And the more evidence one gives in support of such an “opinion,” the worse. And even our purely scientific publications fight shy of the subject, and when they do print such “opinions,” they will only publish them if they are so worded that absolutely nothing of any historical value can be presented against them by any reactionary. It is therefore clear that had there been any such “consensus of views” as Ghent speaks of, my “opinion” would never have found expression on the pages of the Political Science Quarterly.

The matter cannot even be considered fairly debatable among historians. It is true that our reactionaries try to instil a contrary belief to the ignorant. But that is not debate, that is intentional misrepresentation, except when it proceeds from the ignorant. There are many things that are being “debated” by some people in the pulpit and in the press, but that does not mean that they are “debatable” to us. Mr. Justice Lurton, of the United States Supreme Court, has recently attempted to uphold the opinion now advocated by Mr. Ghent (I sincerely hope that Comrade [Viktor] Berger disagrees with his secretary on this proposition). I disposed of him in the article published in the Political Science Quarterly mentioned above. But I was not debating with Mr. Justice Lurton: it was too much like taking candy from a baby.

I will note that I have written respectfully of Viktor Berger who did what almost no other person to the left of Theodore Roosevelt who wasn't a Democrat ever managed to do, win an election and hold public office, honorably.   I haven't researched any dispute between him and Louis Boudin, though it's exactly the kind of thing I'd have found worth pursuing through the now easily available and extensive record of the American left as was published in the period before the iron curtain of copyright as has been absurdly extended to cover those older than even my grandparents even now fell on it.  Maybe I'll do what I once did and invent an "institution" for me to get access past that intellectual Berlin Wall.  

**  I've found a number of transcripts of speeches given by TR before and right after this article was written,  many of which slammed the Court almost as strongly as I'm perhaps infamous for.   I have not found one of that particular speech, yet.