Hate Mail - The Bizarre Notion That The Supreme Court Protects Us From The Congress

THE SUPREME COURT'S claimed authority to overturn laws adopted by the Congress and most of all those signed by presidents is, as honest supporters of that claimed authority will admit, is to be found nowhere in the letter of the written Constitution.   

Even many of those who might be considered honest, well, as honest as lawyers generally allow themselves to be,  will claim that such momentous powers are to be taken as "implied" in the Constitution out of "necessity."   That necessity is the hypothetical and, perhaps occasionally real situation in which proposed legislation has passed through the various legislative and executive hurdles to become duly adopted law under the strict rules of the Constitution being intolerably "uncostitutional."   That, as I noted in the posts you are whining about, there is an absolutely clear and defined and inescapably noticed power of vetoing legislation in the text of the Constitution AND IT IS GIVEN TO THE EXECUTIVE, NOT THE COURT.   It is a certainty that if the framers had intended or dared to include such a power for the Supreme Court it would have stated that in as clear terms.  

That fact renders the claim that there is a hidden, occult, meaning of one in the brief and summary 3rd article of the Constitution which remained hidden from those framers such as Richard Spraight who had vigorously opposed such a power for the courts, the many men of influence in the various states who had, as noted in the posts you didn't care for,  vigorously complained and objected in mass meetings when state courts in several of the original states and the Mayor's Court in New York City had tried to exercise such a power and many other opponnts who were those who had to vote to support the adoption of the 1787 Constitution or it would have never become THE CONSTITUTION which such legislative and executive actions may have theoretically violated,  it renders the claimed reason for that power being invented ludicrous.  

In short this "protection" against the legislature acting against the written Constitution is, itself, the greatest of all violations of the written Constitution. 

I've found in the past twenty years of writing somewhat formally about the legal racket, the laws, the courts, the lawyers the "justices" that irony is often the predominant flavor of the often unsavory dish.  The hugest irony of the Supreme Court inventing a fictitious Constitutional provision which gives courts that power is that it, itself is about as huge a volation of the written Constitution of the United States that has ever happened and which has ever endured for all but about fifteen years of the Country supposedly being governed by the written Constitution.   There has never been a legislative act which I'm aware of that is as clearly a dangerous violation of the text of the written Constitution which has lasted long - and I'm not talking about those which the Supreme Court has nullified, which tend to a completely different character -   which is as dangerous a violation of the written Constitution as the Marbury power grab in fact has been in the most consequential of ways.    

That power has been used, as I and numerous other's have pointed out, including Abraham Lincoln, Fredrick Douglass, many of the most eminent lawyers and statesmen in the period just before, during and after the Civil War,  to declare Black People non-persons and to extend slavery into the Congressionally and presidentially designated free-territories and, in fact, in every state which had abolished slavery in their lands (slave-holders could bring their slaves to free states and maintain them in slavery).  The Marbury power was used to overturn Voting Rights and Civil Rights and impose America's shame of Jim Crow . . . . it has been used notoriously in so many cases in which People ended up as legally discriminated against,  endangered by their conditions of employment,  incarcerated in detention camps without that "due process of law" which became one of the tools of the Court exercising that power, and right on up til today when, as I pointed out, the Roberts Court is repeating the outrageous use of it to nullify the rights of Americans under the 1960s Voting Rights and Civil Rights Acts.  As I noted, it was used to nullify anti-lynching laws in the very year that the Waite Court (a name that should be as infamous as Taney and Roberts) nullified the original Voting Rights and Civil Rights Acts, 

The obvious question is who is to protect us from a Court that transgresses the written Constitution?  

The answer that the Congress can impeach "justices" is absurd and, in this case, it would mean they would do so for them making rulings that the Congress doesn't approve of, which, in turn, would mean that the super-majority adopted for the Senate to convict would protect them from even a majority voting to remove them as it has, in fact, protected the most criminal president in our history, Trump.   

As noted in the series, the farce that the impeachment power is was so obvious from the start that Jefferson mocked it as such in 1819, less than a third of a century after the adoption of the thing.   It had failed to remove the grotesquely partisan "justice" Chase within that period.   This short article on that on the Senate website shows why that has never happened and gives the reason that the suggestion of THAT as a means of dealing with a Supreme Court in which the majority has violated the written Constitution is an absurd dodge of the question.   I'll give you the whole thing so you can't accuse me of "cherry picking." 

Samuel Chase

On November 30, 1804, for the third time in its brief history, the Senate began preparations for an impeachment trial. In 1798 and 1799, the Senate had tried a senator previously expelled on grounds of treason. The Senate dismissed the case, citing lack of jurisdiction. The second impeachment trial, in 1804, removed a federal judge for reasons of drunkenness and insanity. More than the first two proceedings, however, this third trial challenged the Senate to explore the meaning of impeachable crimes.

Samuel Chase had served on the Supreme Court since 1796. A staunch Federalist with a volcanic personality, Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of  refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had "behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard." Highlighting the political nature of this case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench, thereby "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan."

On November 30, 1804, the Senate appointed a committee to "prepare and report proper rules of proceedings" for the impeachment trial. When they took up the case against the Federalist justice in January 1805, the Senate consisted of 25 Jeffersonian Republicans and nine Federalists. Chase appeared before the members on January 4, 1805, to answer the charges. He declared that he was being tried for his political convictions rather than for any real crime or misdemeanor and requested a one-month postponement to prepare a defense. The Senate agreed and the trial began in earnest on February 4.

Chase's defense team, which included several of the nation's most eminent attorneys, convinced several wavering senators that Chase's conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts. A majority voted guilty on three of the eight articles, but on each article the vote fell far short of the two-thirds required for conviction. The Senate thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. Chase resumed his duties at the bench, where he remained until his death in 1811.

Note that this official Senate article more or less brags about the Senate failing to convict in an impeachment trial, something it has never done to even the most clearly criminal presidents in our history.  Trump alone would be the example of why the impeachment means of removing the most criminal of presidents, "justices," etc. is a fairy tale instead of a protection against them. 

Note also, Chase's defense "that he was being tried for his political convictions rather than for any real crime or misdemeanor."  First, that his political convictions had become an issue in his actions as a "justice" of the Constitution refutes the lie that the Supreme Court isn't a political entity,  it has been one its entire existence, certainly since the years of the "revolution of 1800," the means by which "justices" are put on the court makes it so and to pretend otherwise is one of those lawyer-lies I'm never going to not call what they are.  That it was a Court controlled by the Federalists who had been defeated by Voters, decisively, never to have elected power again, is certainly relevant to why Jefferson and his party were at odds with them.   That it was an act of the first and last Federalist President, John Adams, which gave them the excuse to invent the power that made the Court supreme over the Congress and President was certainly partisan in nature.  Adams attempt was to rig the Courts with his partisans, he appointed Marshall to the Supreme Court to ensure the empowerment of his party as the Voters had rejected it.   That power lasted for decades after the People had rejected the Federalists. 

But that's a diversion from the point.   There is no correcting a Court that acts unconstitutionally by impeachment and, if that were done, it would be claimed to be an outrageous act of partisanship.   

The idea that you can correct an unconstitutional Court by the extremely difficult and arduous , long and hardly likely to succeed act of Constitutional amendment is even more absurd.   That was done in the wake of the Civil War in the Civil War Amendments which sought to overturn defects in the original Constitution, tiny little matters such as permitting and embedding the holding of human beings in slavery and, in fact, the first significant use of the Marbury power by the Court, the Dred Scott decision.  As can be seen from the history of those entirely valid parts of the written Constitution under Supreme Court usage - as in the 1883 decision that distorted the 13th and 14th Amendment against their clear intentions to start the de jure phase of American apartheid, the Court can and will nullify or just lie about provisions of the Constitution, something it has repeatedly done.    As pointed out here repeatedly, the Roberts Court has overturned far more than provisions of the Constitution in many of its rulings, none more so than Trump v. USA.  It has overturned the very idea of a republican form of government in favor of planting the seeds of a fascist one.  They gave Trump powers and immunities that George III didn't have. 

Which adds this to the observation that the Marbury power not only does not protect us from clearly unconstitutional acts by Congress which the sitting "justices" like - I'd like a list of such laws that the Supreme Court has unwillingly overturned, I can find no such list ever being made -  it is nothing like a reliable guarantee of the Court protecting citizens or residents, you know PEOPLE, from clearly illegal and unconstitutional acts by a president - at least not of those by one of the majority of the "justicies" own party.   The Court failed to protect citizens from the shameful internment without trial of Americans of Japanese heritage by one of our best presidents, Franklin Roosevelt.   It has failed to protect Americans from being targeted without reason by federal police in Noem v. Vazquez Perdomo, the one in which Kavanaugh, in his concurring opinion said that racial profiling was a legal reason for such targeting.   And I will say targeting because of the stunning number of instances in which the police have murdered innocent People in such actions, generally with impunity during the Trump-Roberts era. 

Trump v. USA is, so far, the flagship case in which the Supreme Court has done far more than just refuse to reign in a Trump acting unconstitutionally, it has given him and his goons immunity from the law in any of his "presidential" actions,  making the so-called law-enforcement arm of the federal government, the so-called "Department of Justice" his mob lawyers whose actions cannot be revealed by compulsion or, I'll bet if the case comes, by  Congressional mandate.  I will add here that Trump, trained well by the corrupt Roy Cohn has mastered the use of the laziness and slowness and cowardice of judges and "justices" to be the most lawless president in our history.   His wildly successful career in doing that is a graduate course in the folly of relying on the integrity or efficiency of the American judiciary.  

Far from protecting the People from extra-constitutional actions by the Congress, the Marbury power has been wielded over and over again to remove protection from The People in the most dangerous of ways.  I noted the bizarre notion that it was no business of the Court or courts to act in the interest of the welfare of People or even all of the People except if, by some chance, their decisions were in line with those.   I would bet you anything that a real and honest telling of the history of the Marbury power would show that, by a clear and large majority of its decisions and, especially, in the numbers of People, citizens, residents, foreign and domestic that such "protections of the written Constitution" has harmed far more than it aided,  and those that the Court and courts so aided would tend to be the rich, the powerful, the white, the male and members of the "justices" and judges, own class and party.  

The ultimate protection of the People from an out of control Congress, at least in a true and egalitarian democracy, would be the vote.  We could vote them out of office for those who would overturn any such laws so passed.  We can't get rid of "justices" and judges like that, at least not in the federal courts and, given the results in many of the states where such "justices" and judges are elected, especially under our frequently corrupt districting and means of informing voters of the truth of the matter,  that's a really mixed bag.   That ours is so unreliable in that is a product of the slave-power and small-state rigging of the American system to empower a minority against the will of the majority, and that is as bad a defect in the Congressional area as the extra-constitutional Marbury power is in the judiciary. 

The framers and other commentators on the forms of government were always fretting over the majority violating the "rights" of the minority.  In almost every case in which one of the framers or those around the adoption of the Constitution went on about the danger of the majority in that way THEY WERE FRETTING THAT THE LARGE MAJORITY OF THOSE WITHOUT WEALTH WOULD TAX THEIR WEALTH FROM THEM, even if just a substantial portion of it.   The very same framers, founders, etc. were quite content for a small minority of the affluent and powerful, the legally favored violating  every one of the rights of very large groups of the underclass,  slaves, Native Americans, Women,  unpropertied white men (by the way, New Jersey early on allowed not only Black men with property to vote, they allowed unmarried Women of property to vote, as well, but that's another story).   The Supreme Court has, with its unconstituional power, carried on in that manner right up till today.  And we're expected to put up with the appalling consequences for all of us because of the hypocritical frettings of a bunch of lawyers in the 18th century because they were afraid they'd be taxed into a lower level of wealth by We the People through our elected representatives.   IF FRICKIN' ONLY!  

Update:  Reading through this on a larger screen than I used to write it,  I should have noted that one of the more obvious reasons the framers and their allies fretted and whined about the "tyranny of the majority" was that even in the 1780s, they were afraid that eventually a majority would come to regard the slavery that made so many of them rich, through enslaving People or importing and trading in slaves, as a number of the Northern framers were involved with an intolerable evil.  

That is about as unworthy a concern as an excuse for hamstringing egalitarian democracy there could possibly be.   One that we are not only under no moral obligation to respect but we have an absolute moral obligation to permanently remove from any constitution that rules us, whether the written one or the real one that is a product of court invention and, not infrequently, lies. 

I'm Not Making This Up, You Know - Hate Mail

THE SUPREME COURT nullification of federal law, on the pretense that they were given something they were not given, that power by the written words of the Constitution, HAS BEEN THE PRIMARY MEANS OF CONTINUING THE WORST OF INEQUALITY AS A MEANS OF PRIVILEGING THOSE IT WANTED TO PRIVILEGE.  

As I noted, several times in the Government by Judiciary series of posts, the Roberts Court, likely the most corrupt in our history and certainly as corrupt as any, has done exactly the same thing that the 19th century Waite Court did in its notorious overturning of more than just the Voting Rights act of 1870 and the Civil Rights Act of 1875, in all it combined five different cases to establish what was, in all of the old Confederate states and in many other states and localities,  an apartheid that persisted until the 1960s when it was all too briefly overturned by the Congress and President Johnson and those laws, supported largely but not nearly strongly enough, by the Warren and Berger Courts.  Unfortunately, both of those courts made rulings that would give the enemies of equality, democracy and decency, even rationality the tools they needed to use media propaganda and political means to end that all too brief period by installing presidents and a Republican majority in the Congress and, with that, some of the worst Supreme Court "justices" since the period of Jim Crow.   With that the Renquist Court through acts such as its outrageous election interference in 2000 and all during the Roberts Court, has plunged us into the period of Trumpism. 

Looking for a speech condemning the "civil rights cases of 1883" (they should be called "the cases that established American apartheid") which I recalled Fredrick Douglass gave,  I came across this very accurate and very brief description of those rulings and what it did to the Country by turning back the progress made toward fulfilling he promises made in the Declaration of Independence and the introductory section of the U.S. Constitution - something which, since it's the claimed intent of the framers in the whole thing, matters remarkably little in the deliberations of the self-proclaimed "textualists" and "originalists." 

Following the progress of the Reconstruction amendments and the Civil Rights Acts of 1866 and 1875, the five Civil Rights Cases of 1883 — in which the Supreme Court held that the 13th and 14th Amendments did not empower Congress to outlaw racial discrimination by private individuals — were a step backwards in terms of justice and liberty.

Frederick Douglass

Public reaction to the Supreme Court’s decisions was immediate and widespread. Frederick Douglass spoke at length about his dissatisfaction with these decisions at a Civil Rights Mass-Meeting held at Lincoln Hall in Washington, D.C., on October 22, 1883. He detailed the painful history of slavery and oppression, and declared that the greatest threat to liberty were those in government who supported taking away the human rights of the formerly enslaved.

Douglass said, in part:

"Fellow-citizens! While slavery was the base line of American society, while it ruled the church and the state, while it was the interpreter of our law and the exponent of our religion, it admitted no quibbling, no narrow rules of legal or scriptural interpretations of Bible or Constitution. It sternly demanded its pound of flesh, no matter how much blood was shed in the taking of it. It was enough for it to be able to show the intention to get all it asked in the Courts or out of the Courts. But now slavery is abolished. Its reign was long, dark, and bloody. Liberty now, is the base line of the Republic. Liberty has supplanted slavery, but I fear it has not supplanted the spirit or power of slavery. Where slavery was strong, liberty is now weak.

O for a Supreme Court of the United States which shall be as true to the claims of humanity as the Supreme Court formerly was to the demands of slavery! When that day comes, as come it will, a Civil Rights Bill will not be declared unconstitutional and void, in utter and flagrant disregard of the objects and intentions of the National legislature by which it was enacted, and of the rights plainly secured by the Constitution.

This decision of the Supreme Court admits that the Fourteenth Amendment is a prohibition on the States. It admits that a State shall not abridge the privileges or immunities of citizens of the United States, but commits the seeming absurdity of allowing the people of a State to do what it prohibits the State itself from doing."

The Court’s decisions in the Civil Rights Cases of 1883 led to the widespread segregation of Black people in housing, employment, and public life, confining them to second-class citizenship in the United States until the passage of civil rights legislation in the 1960s.

I would argue that it did far more than that.   Through segregation it furthered de facto enslavement of Black People in many sections of the country, it blessed racism and segregation and discrimination with the aura of sanctity that comes in the superstitious segment of the population (many of them with college degress, white collar professions and, especially, mid-brow scribblers) that replaces reverence for the Constitution, the founders and framers and,  most nauseatingly of all, the U.S. Supreme Court.   The Supreme Court blessed racism, segregation, discrimination and I will go farther and say, since it was flourishing in the time and under the conditions in which those laws were nullified, they supported lynching.   One of the things they did that year was nullify the anti-Klan law explicitly in a federal case brought against those who lynched a Black Man.   Their excuse was their reading of the 14th Amendment.*

Growing up during the Warren years,  the brief period when the Court had members who were, to some extent, on the side of equality and democracy and decency and some measure of reason (as much as lawyers might be able to be supportive of it, in general) we were lulled into believing they and not the elected branches of the government were the reliable protectors, the court of last resort when all else failed.   

THAT WAS DELUSIONAL AND BASED IN A GENERAL IGNORANCE OF THE ABSOLUTE FACT THAT THE SUPREME COURT HAS BEEN OUR LEAST EGALITARIAN, LEAST DEMOCRACY SUPPORTING, LEAST DECENCY MAINTAINING AND OFTEN ENTIRELY IRRATIONAL BRANCH OF THE GOVERNMENT.   

That history is probably best demonstrated by the pro-slavery rulings of the Court (as I never tire of pointing out even one issued by an officially "anti-slavery" "justice" Joseph Story's Prigg decision), rulings issued by "justices" who held People in slavery, themselves, and who were enhancing their own fortunes  and protecting them through their rulings.  The nauseatingly deified John Marshall, one of the worst.   

They've always done the equivalent in the period after the Civil War and on to today when the members of the Roberts Court rule in accord with the financial interests of themselves and their families and, most of all, the interests of keeping the party of the majority, the Republicans, in power. 

Early in the series I quoted from an article that Louis Boudin wrote when the secretary of the lone Socialist who had been elected to Congress, Victor Berger, had published criticism of  him on the basis of Boudin's skepticism of a proposed Constitutional amendment ending the Court's usurped power to nullify federal legislation - a power that is to be found NOWHERE in the Constitution.  

In that passage Boudin notes the plain truth, that nullifying the Court's usurped power through Constitutional Amendment where it would have to pass through a Congress where a conservative majority would never let it pass - so useful to nullifying progress towards equality, democracy, etc. has been the Court's usurped power.  And if it didn't die there it would almost certainly not get the super-majority of state legislatures to pass it into Constitutional law,  even if it managed to get a majority of legislators supporting it, and largely for the same reason. 

And, I'll add to that, given the demonstrable willingness of the Marbury acculturated members of the Court and lawyers in general to just lie about things, the Court would probably "interpret" such a duly adopted amendment, A PART OF THE WRITTEN CONSTITUTION,  into effective nullification.  

But the most important point of Boudin's response was that the reason that it was vitally important to rip that power away from the court was the use the Court has made of it, over and over again, to destroy any hard won progress towards equality, democracy, JUSTICE as it has done for its entire existence.   The abolition struggle, the struggle for Womens' equality, the struggle for justice for workers, etc. all of that has continually been hampered and any hard won progress has been overturned by the Supreme Court through the nullification of laws.    The Roberts Court repeating the nullification that the Waite Court committed in 1883 must be considered the last straw,  if that power is not ripped from them once and for all by a Democratic president and Congress, it will never end and that progress will never be secure. 

* Here is how Oyez briefly sums up the case,  though I'd put what they did in less "objective" terms.

Harris led an armed lynch mob into a Tennessee jail and captured four black prisoners. Though the deputy sheriff attempted to protect the prisoners, he was unsuccessful. One of the prisoners died. The United States government brought criminal charges against Sheriff Harris and others under Section 2 of the Force Act of 1871. This act made it a crime for two or more persons to conspire for the purpose of depriving anyone of the equal protection of the laws.

Question  Could the United States try Harris and others under the act?

Conclusion   The Force Act was unconstitutional. The Fourteenth Amendment only authorized Congress to take remedial steps against state action that violated the amendment. The Amendment applied only to acts of the states, not to acts of individuals.

Posted Without Comment And Without Shame

 

Countries Allied and Neutral and Opponents Are Dumping the Dollar In Favor of Physical Gold

 

Elon Musk PANICKING As SpaceX Stocks Nosedive

I could keep going with print sources and videos but you'll be seeing a lot more of this in the very near future. 

I've had a number of people around here agree with me, if you're not in the investor class, even if you are, maybe, we're already experiencing something like a crash.  

Tuplips, South Sea bubbles, Beanie Babies, this is your life on capitalism. 

You Would Think That For A Self-Proclaimed Christian That Nothing Could Be More Beautiful Than Following The Teachings Of Jesus - Hate Mail

AFTER TRYING TO REMEMBER everyone in the New and Old Testaments who was imprisoned, Jesus, John the Baptist, Paul, Silas, Peter. . . I went online to look for those I couldn't remember.   There I saw Jeremiah, Samson, Joseph, Servants of Pharaoh, various apostles, those who Jesus warned that they would be thrown into prison, etc.*   There are a remarkable number of those held to be Prophets of God, Apostles and Disciples, JESUS HIMSELF who had been prisoners.  

It is undeniable that Jesus, himself, put it as a commandment to treat everyone humanely, including those who are imprisoned.  More than that he put it as a commandment that those who are in prison are entitled to our care and regard and support and even our visits.  

It wasn't me who said that prisoners are representatives of God, it was Jesus who said that, quite famously in Luke 25:37-40, I'm surprised any "Christian" wouldn't know that.  Senator Warnock recently had to remind some such "Christians" of it. 

³⁷ “Then those who are righteous will reply to him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you a drink? ³⁸ When did we see you as a stranger and welcome you, or naked and give you clothes to wear? ³⁹ When did we see you sick or in prison and visit you?’

⁴⁰ “Then the king will reply to them, ‘I assure you that when you have done it for one of the least of these brothers and sisters of mine, you have done it for me.’

That King being the Lord.   You saying Jesus was lying when he said that?  

So, yes, I'm glad to have said what I did about Prisoners Justice Day and I still recommend Bishop Gary Gordon's words about it yesterday.  

I'm reminded of what Lazar Zamenhof said, that nothing would be more beautiful than if Christians really followed the teachings of Jesus, and he was Jewish, not a Christian.   Though he was certainly more of one than a "Christian" who thought there is something disgusting and vile about following them.  And your kind of "Christian" is that kind of "Christian."   You admit that you don't find doing that to be beautiful.  

* Without going into detail, these came to mind as I was checking this post -  those who were exiled in Babylon, many of them explicitly being imprisoned but, really all of them could be added to that list.  The martyrs in 2 Maccabees.  Oh, and Hosea should be on that list. 

A Beautiful Holy Day That I Doubt The US Will Join In

AUGUST 10 is Prisoner's Justice Day in Canada and which prisoners in a number of countries, including the US seem to know about because sometimes they've mounted hunger strikes on this day.  I doubt I'll ever see any kind of official observance of it in the US because of the ubiquity of the propaganda vilifying and demonizing and, worst of all, othering of those in prison.  That's not to deny that many of those who are in prison should be there, as the sermon I praise below says, but that we all have a moral obligation to do a world more than we do to make sure that those in prison are confined under safe and humane conditions, that there is a real effort to rehabilitate those who could be and might be and to make sure that the conditions of their release are such that they will have a new chance at an honest life.  

I hadn't known about this until I listened to today's mass said by Bishop Gary Gordon in which he gave a short speech before the mass and in his especially fine sermon, noting that it is also St. Lawrence day.   He notes that anyone who claims to be a Christian is under a commandment of Jesus,  "I was in prison and you visited me," in which Jesus explicitly said that someone who is imprisoned is the very embodiment of God. 

I have a relative who is addicted to those putrid "reality TV" cop shows where they follow police around and watch them chase and arrest people.  It seems one is on TV whenever I go there. The first one of those I ever heard of was C.O.P.S. which I was involuntarily subjected to a few times and I immediately saw that it was racist propaganda.   It's also imprisonment propaganda, promoting imprisonment in a country with entirely too much of our population in prison.  And, in so many cases, some of those who should most be in prison are protected by the entire "law enforcement" part of the government at every turn, look at the "DoJ" under the Trump regime and earlier presidents for just the federal part of that.   If a single other Epstein class guy or gal goes to prison, I'll be shocked.   On top of that,  I have always subscribed to the line I heard near the end of Brecht-Weil's Happy End, "Knockin' over a bank's no crime compared to ownin' one."  

Think about some poor person stuck in prison, today.  Especially if they're guilty but the innocent ones too.  

Could The New Taney Court, The Roberts Court Have Unwittingly Forced The Abolition Of The Marbury Power?

I REALLY DID MEAN IT when I said the Republican-fascist,  Federalist-fascist Society majority on the Roberts Court are really not that bright.   As I was doing the reading and thinking and writing in the series I just sort of concluded,  I started wondering if perhaps sooner than later the unitary-executive pipe-dream which the six fascists on the court put into the real instead of that make-believe paper constitution, the real constitution that doesn't say what the words on paper say but whatever a majority on the present court says it says, might force the issue of the illegitimacy of their power to do that IN THE WORST POSSIBLE WAY. 

Louis Boudin pointed out that once the Marshall Court had invented the Marbury power, the power the Supreme Court invented to give it the power to nullify duly adopted federal laws, they don't seem to have dared to use it in any significant way instead of in the already moot issue of Marbury's commission as a justice in the District of Columbia.   

Boudin  intelligently noted that if they had tried that during the Jefferson administration he would certainly have not allowed them to do it unchallenged and that if that had happened, he'd have bet on Jefferson coming out on top.   I would too.  And if not him then Madison.   

They'd certainly not have tried it in any significant way during the term of Andrew Jackson who showed he was quite prepared to defy courts.  Jackson was a truly terrible president in many ways, even if he did further the Jeffersonian revolution discussed in the series. 

It is a fact that Lincoln, having vigorously opposed that power before he became president after its first significant use by the Taney Court in Dred Scott,  openly defied orders of the Court and that, if Taney had not, thankfully, died before he issued the Emancipation Proclamation, that when the court case Taney was planning to nullify it had happened, there would have been a decisive show-down when the Court tried to do that and I would expect Lincoln would have refused to acknowledge the legitimacy of it.   

I think he would have even if the "justices" on the Taney court had come up with some other legal babble to do it short of repeating their use of the Marbury power to do it - once the rules are out the window, they can do the lawyerly-liarly thing and call anything what they want to and call that lie "judicial." 

I think it's a distinct danger, now that the Roberts Court has made their Ivy League law class exercise of imagining up the United States as a Republican-fascist state under a Republican-fascist president, one who will deliver to the billionaires, millionaires, lesser members of the investor class such as they and their families are, their hearts desire, that it might be Trump, instead of a Lincoln, a Jefferson or even a Theodore Roosevelt who denies the power of the Court to do even the legitimate things that the Court should have the power to do. 

And if not Trump then whoever the likes of Elon Musk or Peter Thiel or (as facilitated by the Roberts Court in Citizens United)  a Putin or Saudi billionaire installs will certainly do it if the Court tries to reign them in in a way they don't like. 

I think as the rot that the Roberts Court has installed into the real constitution ripens, the constitution that rules us as a result of it being whatever they say it is, as that rot progresses, it is all but inevitable that we either rip that power from the Court and reform the form of government we have to take into account the hard lessons we have had in the more than two centuries under the one on paper and the one that the "justices" make up new whenever a majority flips or we will suffer the ever worsening consequences.   

We will eventually have to learn the hard lessons of our real history or we will be destroyed by our failure. 

As it is, the "justices" have made it part of the real constitution, the real "bill of rights"  that we are to never learn the hard lessons of history,  I blame the more extravagant irresponsibilities in the idolized line of "first amendment" free-speech-press rulings for that.   That it was the "progressives" and "liberals" on the court who invented the "right to lie" may serve just as well as an example of what happens when the "justices" have no restraint in their ability to nullify legislation while holding their professional habits of considering lies to be as good as the truth, depending on what those get you.    The idea that there can be a "right" to do something that is immoral is so stupid that it's something you might expect an Ivy League lawyer to come up with.  

Everyone bemoans the lies of Trump, of Vance, of Republicans, of FOX Lies, etc.  Everyone at the very least implies the truth that those are the lies that got us both Trump I and Trump II.  But no one even admits there's something that can be done about that because, you know "the first amendment."  Well, we either get over that or we continue to repeat what got us here and we get more of it in perpetuity.  And there's nothing stupider in government than putting up with that. 

Consider the consequences if it's a Trump or a Vance who nullifies the Marbury power instead of a democrat or a Democratic Congress.   I think that's an alternative we will eventually face in the worst possible way. 

Temporary Linked Index To The Government By Judiciary Series

In This Series Attacking The Supreme Court's illegitimate usurpation of legislative powers and executive powers explicitly laid out and clearly assigned to the Congress and presidency and how the Court and its lower courts have used that power to continually roll back and abolish any serious attempt to deliver on the promises of the Declaration of Independence and the very promise of what was intended by the framers of the Constitution made in its first words, and they did it from the first significant use of the Marbury power in the Dred Scott decision, in decisions rolling back the first voting rights and civil rights acts of Congress made right after the Civil War - EXACTLY WHAT THE ROBERTS COURT IS DOING TO THE CIVIL RIGHTS AND VOTING RIGHTS ACTS PASSED IN THE 1960S AND REAFFIRMED BY BOTH A LATER CONGRESS AND PRESIDENT AND PREVIOUS SUPREME COURTS - and even parts of the Constitution, itself, especially the 14th Amendment - in going over this I haven't been indulging in an historical exercise,  as you can see from just this paragraph, this isn't history, this is what we're seeing the Roberts Court doing as they gut even the restraints on Trump making him a monarch with fewer legal restraints on him than were on George III when the American Revolution was fought to throw that kind of despot off.  

I hope that this contributes to a real and successful change that will once and for all abolish that Supreme Court usurpation which, for reasons I state in the series and elsewhere, many lawyers will never have the stomach for because they are, largely, cowards and they don't want so much of their professional training to need an update - which it would need.   

I think that a truly democratic Congress and a democratic President will have to nullify it on a de facto basis - a location Lincoln was trending to -  explicitly denying the legitimacy of that power of the court to usurp the Constitutionally designated powers which are given to the Congress and Presidency BUT NOT TO THE COURT.  Though, I wouldn't be surprised that as the catastrophe that the Roberts Court is inflicting on us ripens that a Constitutional amendment doing that might have some chance, though I'd expect one originating in the states might have a better chance than one in the Congress - too many lawyers in it. 

Post One - Introduction

Post Two - The Real Constitution That Rules Us, The One The Court Reinvents To Suit Whoever Sits On It

Part Three -  Why Any Progress We Win Will Be Overturned By The Supreme Court Unless The Usurped Marbury Power Is Ripped From Them

Part Four -  The "Orignalists" and "Textualists" And The Rest Of Them "Find Only What They Want To In The Constitution And Legislative Record (Clue, they don't much bother with the legislative record). 

Part Five - Voting Is Only A Means To The End Which Is Good Government, Without That  It Is Worse Than Worthless

Part Six -  Why The Framers Of The Constitution Would Not Have Dared To Include the Marbury Power In The Document 

At this point, you might want to look at the note I posted complaining that I was having trouble with getting the font size to cooperate in some of these posts.  

Part Seven - It is absurd to assume that the many avowed opponents of judicial control of legislation who sat in the Convention would have agreed to the article without a murmur had they suspected that it contained even a part of the enormous power which our judiciary now exercises

Another side trip, a quote from John Kenneth Galbraith And Why The Media Is Not The Champion Of Equality and Democracy And A Decent Life For Us All

Part Eight - How The Court Invented The Marbury Power And How Jefferson Denounced It As Having The Potential Of Becoming What It Is Now 

Part Nine - "the disastrous results attending the first important use of the federal judicial power to annul an act of Congress in the Dred Scott case"

Part Ten -  How The Marbury Power Was Used To Abolish Civil Rights Legislation After Taney Broke The Embargo On Its Use In Dred Scott - What The Roberts Court Is Doing Again And What Courts Will Continue To Use It For 

Part Eleven - "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"  A Warning From A Conservative On The Court 

Part Twelve -  In Which Jefferson Baldly Denied The Legitimacy Of The Marbury Power Saying That The Constitution Would Be A Suicide Pact If It Contained It

Part Thirteen - "Benevolent that despotism may be, or otherwise: that depends on the individuals who wield that power"

Part Fourteen -  Divided Courts Are Proof That The Court "Finds" What Its Members Want To "Find" In The Text - The Marbury Power Is Certainly One Of Those "Finds"

Part Fifteen - How You Can Know For Certain The Marbury Power Is Not Contained In The Constitution 

Part Sixteen -  The Rules, Truth, Reason, Even Consistency By The Members Of The Court Are Out The Window Due To Their Usurpation Of The Marbury Power Grab 

I have called this a temporary index because there are pieces I'm either sketching out or thinking about that might be included in the future.   I don't think I left any important posts out of it. 

As Just Seen On Reese Water's Program

People with six teeth defending people with 8 yachts is one of the greatest political achievements in modern history.    

Brad

I almost didn't post it because I suspect a lot of People would focus on the people with six teeth when they should focus those who sold them on defending the people with 8 yachts.   But I suspect the people who will see this here will get it right. 

Approval of the decision in Muller v. Oregon . . . should not blind us to its significance as regards the distribution of political power in our governmental system. In the later respect it openly, I say almost defiantly, maintains the position that to the judiciary belongs the supreme control of all legislation and that it means to use it.

THE CONCLUSION of Louis Boudin's article on Government by Judiciary talks about  Supreme Court two-stepping, issuing baldly contradictory rulings based on cases with identical bases as an example of the consequences of the great change in Supreme Court "rules" which were supposed to protect the country from the Supreme Court becoming what judges who favored a judicial veto of legislated laws warned about even as they advocated that, that the courts and, especially, the highest court could become exactly what those who opposed that court power said it would lead to, judicial tyranny.  

And that tyranny, once established, quickly puts aside any notions of consistency or principles restricting them.  

As "justice" Curtis noted in his dissent in Dred Scott, in that first significant use of the Marbury power grab, the majority baldly lied about the history of Black People being citizens in a number of the states both during the period before the Constitution was adopted and even as the Constitution defined citizenship in the United States as being based in who was included in the state constitutions at the time of the adoption of the Constitution.  So the barrier against lying in a majority decision had gone, certainly in that first real use of the power if not earlier.   Who is going to stop a Supreme Court majority simply lying or, as Sonia Sotomayor noted in her dissent in Trump v. Slaughter:

The majority’s decision continuing that trend today is egregiously wrong. In this case, the Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time. That decision does not just overrule precedent; it all but ignores that precedent exists.*

Which is exactly the same thing they did in the Dred Scott decision.  Exactly that. 

So the U.S. Supreme Court, under its own claimed rules, puts aside their rules for applying that supreme power, as Boudin laid out in the part I posted last week, they set aside the need for them to be consistent in how they applied that power in cases of exactly similar facts in cases they decided to decide, they put aside any requirement that they not lie in a decision of the Supreme Court and, with that,  they can put aside even the most basic of restrictions on that power which they have given themselves, knowing that there will never, not in their lifetimes, be a sufficient super-majority in the Senate to remove them because their fellow Republicans will keep the worst of them there even as it has kept the most criminal president in our history in office.  EVEN ONE WHO MOUNTED AN INSURRECTION AGAINST THE CONGRESS AND THE CONSTITUTION!  

Knowing the arrogance of the Prep-Ivy League class,  I am entirely confident that the Roberts Court majority imagined, as did the Republican elite did when it forged the "Southern Strategy," an alliance of money interests with white supremacists, especially in those Southern states where white supremacy has generally reigned, that the elite would harness and control its agents among the lower orders of their movement, giving them what they wanted, hate, while using them to get what they wanted, wealth and the power to gain and secure that wealth.  

No doubt Roberts and Coney Barrett, at times joined, perhaps, by Kavanugh still are stupid enough to believe what they unleashed in Trump v. USA and other rulings in that line was still under their control. Goresuch, Alito and Thomas don't seem to mind as much that they clearly don't have that kind of control.  Look at how Trump-Miller et al are flouting their recent birthright citizenship ruling. 

When I said the Roberts Court was the worst in my generation's living memory and perhaps the worst in our history,  I really, truly meant it.  And I don't think I've demonstrated that I'm unaware of the sordid history of previous courts and that particular Court for most of its history. 

I'm going to go long to finish this, both because it's illustrative of where the trend mentioned above started and how cruelly absurd the results of the Marbury power was even when it was white working class People who were the recipients of that species of "justice." 

V concluded

The result of all these changes may be summed up in a sentence.  There are 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.  

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 of 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 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 follows 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 the law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers.  They could not understand it.  They accuses 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 that cass, when it was before the New York Court of Appeals, and of the prevailing opinion n the United States Supreme Court, clearly shows this shifting ground. 

Under the new rule of interpretation, it is no longer a question whether the legislature has the power to limit the ours of labor, when it determines that such a limitation was necessary for the health of those engaged in a particular industry;  the question is whether that power has been wisely used.

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 judgement of the matter of the healthfulness of work in a bakery, not their judgement on the constitutional power of the legislature, that led five out of the nine judges the declare the law unconstitutional. 

We are not now concerned with the question of 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 function 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 statue was 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 followed in Lochner v. New York the bakery law should have been declared unconstitutional because the law still recognized in Munn v. Illinois was repudiated.

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 ours 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 n 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.

Approval of the decision in Muller v. Oregon as 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 later respect it openly,  I 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 within 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 conclusion 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 in the Constitution, but men with a knowledge of life and plenty of common sense.  These editors meekly accept 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 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? 

L.B. Boudin

*  In a case of stunning irony and bald hypocrisy, in his concurrence with the majority in that case "justice" Goresuch said:

Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all those powers too.  From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.

I don't look forward to "justice" Goresuch doing much to abandon the Court's usurped powers of legislation.  Congress never handed such powers to the judiciary, the Marbury power was founded on Marshall et all rejecting the Congresses power to give to the judiciary more power than was laid out in the plain reading of the Constitution. 

It resulted in them taking on the role of a super-legislature and a vetoing virtual president.  ONE WITHOUT THE POSSIBILITY OF CONGRESS CONFIDENTLY OVERRIDING THEM. 

** Ives v. South Buffalo Railway Company

Here is the start of a description of the case an its aftermath I found online.

Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911), is the landmark New York case that briefly killed one of the country's earliest workers' compensation laws and, in doing so, helped reshape American labor law. On March 24, 1911, the New York Court of Appeals struck down the state's 1910 Workmen's Compensation Act as an unconstitutional taking of employer property without due process. The very next day, the Triangle Shirtwaist Factory fire killed 146 garment workers in New York City. The proximity of those two events intensified public pressure for reform, helping build momentum for a constitutional amendment, a redrafted workers' compensation law in 1913, and ultimately a U.S. Supreme Court decision in 1917 upholding the modern system. The case is a reminder that the protections injured workers rely on today did not arrive on schedule. They had to be fought for.

The sections below explain what Ives held, why it was so disruptive, what the public and the legislature did in response, and what the case still teaches about workplace injury law more than a century later.

To understand Ives, it helps to remember the bleak reality injured workers faced at the turn of the 20th century. Industrial accidents were common and often fatal, and the legal system offered very little support to the people they injured.

Under the common law that governed workplace injuries, an injured employee could recover damages only by proving the employer was negligent. Even then, employers had three powerful defenses that defeated most claims:

Contributory negligence. If the worker contributed even slightly to the accident, they recovered nothing.

The fellow-servant rule. If another worker, rather than the employer, caused the injury, the employer was shielded entirely.

Assumption of risk. Courts treated a worker's decision to take a dangerous job as acceptance of the dangers, absolving the employer from liability for injuries that resulted.

The practical effect of these doctrines was that most injured workers and their families were left without compensation. The cost of industrial accidents fell on the workers least able to bear it.

All of that seems well and good to us a hundred nine years later,  but the Court in 1917 could have just as easily and capriciously overturned the law and who knows how long it would have taken for a different court to legislate in the opposite direction?   

There were no voters to hold them to account as they could a legislature or a governor or president, the "justices"  could do whatever they figured was in their interest at the time or, in fact, whatever they wanted to do.   There is no higher court that they had to worry about overturning them,  as can be seen in how they treat Constitutional amendments, not even the Constitution itself would do that.   

I have to wonder if what Boudin and others were saying about ripping their own self-invented and grabbed legislative power from them figured in that decision, at all.   I expect it did. 

I can't imagine that all of those on the Court were unaware of such talk,  I would be surprised if every one of them hadn't read Boudin's essay and others calling for that power to be taken from them.  I am certain all of them were aware that the sole Socialist in the Congress, Victor Berger, had proposed a Constitutional Amendment that would do that.   I don't think it's improbable that the modern idea of workers compensation when they are injured or killed as a consequence of their employer putting them at risk owes its survival on the killing floor of equality and democracy that is the Supreme Court and the lower courts under it to this article I've been going through. 

How You Can Know That The Marbury Power Is Illegitimate

I CAN'T RESPONSIBLY not mention it at this point.   If you read through my earlier post you will have read this paragraph:

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 rule 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 beyond 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. 

What the Supreme Court does, the legislative function it usurps when it nullifies a duly adopted federal law, is, in absolute fact, an unconstitutional veto on legislation the Congress has passed.

Anyone who claims such a power is to be found with a judicial Ouija board in the Constitution is lying.  And the means of knowing beyond any possible doubt that they are lying is found in the Constitution, in the plainest language, in the very body of it, in the first articles of it defining the roles of first the most essential body, the Congress and then the Presidency,  IN WHICH THE ONE AND ONLY VETO POWER INCLUDED IN THE CONSTITUTION IS LAID OUT IN AS EXPLICIT A WAY AS COULD POSSIBLY BE DONE.      

The first veto is by the Congress when they refuse to make give a proposed law the votes necessary for it to become law.  That's such an intrinsic role of the legislature that they don't even bother to call it that.  Nullification of proposed legislation is an intrinsically legislative action. 

The second veto is given to the president, and it is not an especially strong power because there are rules laid out by which a president, by his action or inaction, either issues a veto on the legislation or not and it becomes law through action or inaction.

And even that presidential veto power is restricted because if a sufficiently large majority in both houses vote in favor of it, they can quash a presidential veto and the legislation becomes law without the presidents approval.

With those strong and explicit definitions of a legitimate veto under the Constitution, any asserted judicial veto of such laws can only be either the founder's pulling a con job on We The People and, therefore, it is illegitimate or, what actually is the case, the unelected "justices" on the court lied us into having one by them usurping that power which belongs, not only in a weak way to the president, but in a decisive way to the Congress. 

If the framers gave the president a power to veto legislation that can be overcome by the congress overriding that veto, IT IS BEYOND ANY DOUBT THAT IF THEY INTENDED THE UNELECTED COURT TO HAVE ONE THEY WOULD HAVE GIVEN THE CONGRESS THE POWER TO OVERRIDE A JUDICIAL VETO, ONE BY WHICH, AS BOUDIN POINTS OUT, A MERE MAJORITY BY ONE OF THE "justice" NULLIFIES A DULY ENACTED AND OFTEN LONG-STANDING LAW, even laws repeatedly supported by Congress, presidents and previous Supreme Courts.  

I thought someone should point that out,  I can't recall it ever being put quite this way. 

In this realm nothing can be said to be "free from doubt"

WE ENDED YESTERDAY with the beginning of the fifth section of Louis Boudin's argument against the power that the Roberts Court has used to nullify the Voting Rights Act and other laws in favor of white supremacy, America's indigenous and always very powerful form of fascism and to empower the political power of the Roberts Majority, the Republicans.  

If you doubt its fascist nature, you certainly know nothing about how those it has targeted experience the results in the states and in the federal law.  Especially as that really is as allowed by courts instead of the bullshit that they serve up in old-line civics and history classes and in the even bigger pile of it that constitutes the large majority of that real curriculum of both for most Americans, in descending order of power, these days, online fascist polemics, old-line lies about American history and the alleged Constitutional order, Hollywood crap, movies and TV, right-wing hate talk radio, libertarian fantasy,  Broadway style shows with "music" and dancing, Aaron Sorkinesque media productions, hagiographic print media such as best seller biographies of the founders and framers, and more along that line, the easier to consume the more influential it is.  That is the brood-house where young fascists,  recently born,  take the place of the old line racists, segregationists, KKK and other violent members of groups such as MAGA and the like, and genteel members of legal societies such as staff the fascist end of the Roberts Court.  

They are aided by go-along-to-get-along lawyers, politicians, journalists and academic scribblers and babblers of all political stripe who know that their reputations for soundness and perhaps even their reputations as lawyers depend on them knowing nothing as to the true history and present usage of that power, the absolute fact admitted by even its honest supporters that it appears nowhere in the Constitution which was drafted by a body including some who were vehement enemies of the judiciary holding the power to nullify duly enacted law.  The Constitution drafted in a country which had very recently known public furores over state and local courts asserting such a power in New York, Rhode Island, North Carolina, etc.  

If such a power had appeared honestly and forthrightly in the Constitution its narrow ratification in the states would almost certainly never happened.  And the narrowness of that ratification and the sometimes shifty means that the federalists took to rig votes in at least several of the states is the real history of it, a history attested to by no less than John Marshall in his biography of Washington, even as he lied about it in his judicial scribbling.  But today all of that is a suppressed truth.  

The framers of the Constitution, fully knowing the objections to that power from such vocal members of the Constitutional Convention as Richard Spraight would never have dared to include it honestly and forthrightly.  

They would hardly have dared to include one stealthily and dishonestly by secretly inserting it in occult language into the document where it would certainly be discovered by the able opponents of that power who could read and understand its implied presence.  Spraight and many of the other ardent opponents of it were as able lawyers as the drafters who might have wanted it there.  Stupid they weren't, as a reading of the best of the anti-federalist papers proves. The opposite is claimed by its stupider supporters, who like Trump seem to be influential in direct proportion to their stupidity.  

And if they did secretly insert that power into the Constitution, it has no right, whatsoever,  to the claim to the original acceptance by "the people as a body" because it would have constituted a massive con-job played on them, a con of which only crooked  lawyers would claim was legitimate and those crooked lawyers who had been elevated on the basis of their past service to some establishment of power or other who had gained their seats on courts because of that (Roberts, Alito, Thomas, Kavanugh and Coney-Barrett are certainly examples of that).  The framers of the Constitution would be no better than the majority on the Roberts Court or the sleaziest members of earlier courts going back through the Taney Court which first used the power to nullify the personhood of Black People, enslaved and freeish, and to, in real effect, nullify the state laws abolishing slavery in their territory and the territories in which the Congress had forbidden its spread.  

Lin-Manwell Miranda and Aaron Sorkin might not tell you that, Ken Burns might be a bit more inclined to do that, though I doubt he could without endangering his funding or his virtual guarantee that his next project will get on PBS.  I expect many of his celebrity voice-artists would flee from such a project. 

But I just did tell you.  And, to my critics, I'm proud to do that. 

I will repeat the beginning of section five in case someone didn't read it and so the argument will be complete here:  I will try to resist breaking in though there is hardly a paragraph or sentence that I wouldn't like to do that, only reminding you that things have gotten far worse than they were when Boudin was writing this. 

V

Turning now from a study of the past to a consideration of the present [that present being c. 1911], 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 of 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.

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 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 consideration, some moral and some material. As is well known, it makes a 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 the power itself spells despotism.  The essence of despotism is the right of the few to make the laws or to control their making, without being responsible to the people. 

I will break in here to again assert the relationship of the Supreme Court acceptance of partisan (and with that certainly Court accepted racial) gerrymandering as fatally weakening the power of a majority to exercise that vital control on even the legislature and expand that to include the very real deadening of it on the executive by the Constitutional atrocity, the Electoral College.  The deadening effect of the anti-democratic Senate in which a small rural minority of the population - and it's not even all of the rural majority states, it certainly doesn't include Vermont and sometimes doesn't my own state as well as a few others, on occasion, it is the most backward and white-supremacist inclined of them acting similarly to have the same anti-democratic effect on our federal government, often encouraged by the mass media freed by the court to lie with impunity.  Allowing the conservative dominated Supreme Court to put its massive fist on the scale in favor of that is the history of why America has yet to fulfill the basic promises made in both the Declaration and the preamble to the Constitution. 

I will give that last  sentence again because it  briefly states the danger that comes with allowing the Court to nullify federal laws as succinctly put as possible, though I'll point out that I vehemently disagree with Louis Boudin's use of the term "the right of" because holding public office doesn't confer rights that don't belong to every single person, it creates responsibilities freely taken on.   Also note I have numbered the ways in which Boudin shows that the Courts after the Taney Court had opened the floodgate to Supreme Court legislating from the bench, all the previous claimed essential boundaries of such nullification of federal laws have been mowed down like the voting rights and civil rights acts of the 1870s and 1960s have been. 

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 that I have borrowed from Justice Clifford;  but despotism retains its sting no matter what it is called. 

1.  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 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.

2.  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 our institutions" gives sufficient cause for such annulment. 

Most of the important decisions declaring legislation unconstitutional are now rendered in violation of that 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 o 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 decisions, of course), that it 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 into 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! 

3.  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.  

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 into which not only each generation but each individual puts a different content, according to 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 sprites, 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 it that a provision, of which one judge emphatically asserts 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 rule 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 beyond 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. 

I will continue this next week as I have the last few sections of Boudin's examples because this post is already long.  I will remind you that if you want a preview of what I might say about it, you can read his 1911 article online or, if you can find it, his great 1931 work with the same title, Government by Judiciary.  

* Note: I am working on a post laying out the original claim of why that power was needed and giving case after case as to why, if that's the reason for it, it has not worked as it supporters claimed was necessary. The gap between the stated intentions of it and the actual use of it under judicial practice isn't a gap or even a chasm, neither of those metaphors are big enough to take in what they have swallowed in their usurpatious hypocrisy. If you want an example, look at the record of the Roberts Court since 2015.