In view of these conflicts, and of the disastrous results attending the first important use of the federal judicial power to annul an act of Congress in the Dred Scott case, it sounds like bitter irony when Judge Lurton says that this power has made us "for more than a century the most law-abiding people of the earth."

III concluded

The conclusion of the  third part of Louis Boudine's argument dealing with the actual issuance of the Marbury v. Madison decision and its immediate consequences in the years before its first significant use in the putrid Dred Scott decision, still infamous as likely the worst Supreme Court decision in the history of that court — which deserves to have its many, many atrocious rulings exposed instead of concealed by concentrating on merely the worst of those many rulings — ends by briefly mentioning the uses of it made by the state Supreme and other courts.  I have not researched those very much, apart from he dissent of Judge Gibson in Eakin v. Robb mentioned below.   

I will include at least one post about that, the lengthy document which is an extremely important piece of legal reasoning is as timely now as it was in the two hundred one years since it was issued.  It is far more insightful than any defense of the Court's power grab I've ever seen which depends mostly on lore, myths, habits, lies and outright fiction.   In fact, I've seen pro-Marbury scribblings that would seem to misrepresent Gibson's incisive reasoning against it as supporting the Supreme Court's original usurpation.  Lying is the mother tongue of lawyers and, especially, those who write about it academically and polemically.  

In the meantime the conflict over this power was raging in other fields.  The state courts in several instances attempted to follow up the logic of Marbury v. Madison.  The state courts were in this respect in a much better situation than the federal courts.  

The acts of the state legislatures were admittedly subject to review by the judiciary,  both federal and state, on the score of repugancy to the federal Constitution, treaties and statutes, in matters of federal character.  

From this it was but one step — and a step which a layman could not always see — to the power of review on the score of repugancy to the respective state constitutions.  And yet this step was not taken unopposed, even after Marbury v. Madison. 

The ensuing conflicts form one of he most interesting chapters in our history — a chapter unfortunately now entirely neglected, the common lot of all struggles which end in defeat.  

It may be said in general,  that the actual exercise of this power by the judiciary of the several states during the first fifty years after the adoption of the Constituion was very rare;  and it was used only under extraordinary circumstances;  and that its use almost always provoked great public excitement and sometimes entailed results of a more serious sort.  

In Kentucky it at one time led to the creation of two rival courts, each defying the other, and it almost led to the creation of two state governments. 

There is are two footnotes with citations worth mentioning here:

1  In reference to these struggles, cf.  American State Papers Misc., vol ii pp 2, 6;  Sketch of Hon. Calvin Pease, Western Law Monthly, June, 1863, quoted in Cooley, Constitutional Limitations (7th ed.), pp 229, 230;  Niles Register, vol xxiii supplement, p. 155;  Collins History of Kentucky, vol i pp. 218 et weq.  

2  Baldwin,  The American Judiciary, pp 113-115.]

I hope to research this fascinating sounding topic in American history. 

In view of these conflicts, and of the disastrous results attending the first important use of the federal judicial power to annul an act of Congress in the Dred Scott case, it sounds like bitter irony when Judge Lurton says that this power has made us "for more than a century the most law-abiding people of the earth."

I have mentioned that Horace Harmon Lurton had been a Confederate who waged insurrection against the United States and the Constitution, such was his notion of abidance to the law.   If it hadn't been for the actions of two of the worst presidents of the 19th century, Andrew Johnson and Rutherford Hayes, he may have remained ineligible to hold public office for the rest of his life.   

It would be interesting to go over whether the relevant provisions of the Supreme Court sliced, diced, minced, rinsed, denatured, etc. 14th Amendment was relevant to him being on the Court as an abstract question.  He certainly gave aid and comfort to those who waged war against the Constitution of the United States, which is an explicit bar for someone holding federal office contained in its text and, I'd bet, in the legislative record of its drafting and approval by Congress.  

Though, as it was always the case when it was a matter of the slave-power, which persisted in slightly changed form through until the mid-1960s and has been revived by the Roberts Court, almost everything that favors the wealthy and the powerful against the powerless,  the Constitution doesn't seem to apply, even when it so obviously does.   

And among the infamous things the Roberts Court did was to green-light the most culpable and extreme insurrectionist since the end of the Civil War, Trump's, again taking the presidency from which he waged an insurrection against the Constitution.   Even the bloodiest and worst of the Confederates' insurrection against the Constitution and, far more importantly, the country cannot be said to match Trumps' which was waged as president to overturn an election and remain in power.   If the law was not an ass before the Roberts Court,  it's a whole team of them now. 

In most of the states, however the power in question, although generally asserted, was not used at all during the first half of Judge Lurton's "more than a century."  

This was the case, for example, in Pennsylvania, then the leading state of the Union.  During the half-century following the adoption of the United States Constitution the Pennsylvania courts did not declare a single law unconstitutional, although the judges, with one notable exception, asserted that right.  

There may have been other exceptions, for it is probable that the doctrine was not quite so universally accepted even by the judiciary,  either in Pennsylvania or elsewhere, as it is now imagined; but the one exception known to us is that of Judge John B. Gibson, for  any years judge of the Pennsylvania supreme court, part of the time its chief justice, and one of the ablest men who ever sat on that renowned bench.  

His opinion, officially stated in 1825, is a most convincing (and in my judgment quite unanswerable) argument against the existence as well as against the expediency of the power of the judiciary to review legislation under any circumstances.  

Its historical importance, however, lies in the fact that, nearly a quarter of a century after Marbury v. Madison, one of the three judges who then composed the highest court of the great state of Pennsylvania, in an official judicial opinion, denied the existence of the power asserted by Marshall.  And it is not without historical interest, as an evidence of the spirit of his time and commentary upon the changed spirit of ours, that Judge Gibson's views did not impede his promotion to the chief-justiceship of his state. 

Maybe We Should Start Talking About "Paulism"

 "Dr. Rand Paul" is jealous because DR. Anthony Fauci is a real doctor,  one of the most respected doctors in his field in the world for more than a half a century,  not one that is licensed by his own pseudo-medical agency.

The Republican-fascists are outdoing the late Senator Joe McCarthy and HUAC by miles and miles.   Will George Clooney do a movie about it?    Not unless they go after Hollywood figures would be my guess.  

I wouldn't answer their questions,  not with them having stated their intentions to prosecute without having any evidence of any crime.   I wouldn't have been as polite in opening as Dr. Fauci was, but, then, he's a lot nicer than I am.   

I wonder if Susan Collins and the other "moderate" fascists will vote to hold him in contempt of the Senate.   These days I don't know how anyone with a sense of moral awareness could be in any other state in regard to that bunch of windbags. 

Remembering Thirty Six Years Ago

I HAVE BEEN looking for a quote I remember reading from the very late and,  it would seem, largely forgotten giant of my youth and middle age,  John Kenneth Galbraith which said, in substance, that it was a mistake for liberals to depend on the Supreme Court as much as they had become in the habit of doing instead of depending on winning elections.   How much of that habit was the result of the non-stop PR from the ACLU asking for us to fund their brave fight for the rights of Nazis, gun-lovers, pornographers and on behalf of the wealthy to put as much money as they wanted into elections, I wonder.   I will have more to say about that as I have from the first post I ever posted online.  

I haven't found it though I found a reference to him saying it in the first issue of The American Prospect magazine,  though I've searched their site I haven't tracked down the quote yet.  But I did find this worth reading article, How to Win Elections: Integrity as a Political Ploy, which might be useful to not only those who want to win campaigns but to we the liberal to leftish, . . . . to Christian socialist Voter.  

This passage is one I'm sure I'll remember the next time James Carville opens his mouth though I could name dozens of those I recall it applying to equally,  maybe I'll look for my post in which I condemned Democratic campaign operatives who touted the benefits of strategic losing of elections during the years when Galbraith was alive to hear that bullshit 

Speaking out of personal experience and acquaintance going back to James Aloysius Farley, I am persuaded that the self-styled political expert is, in most respects and in most instances, a compulsively articulate idiot. His reputation, when separated from his unlimited and intellectually unsupported self-confidence, depends on his having been accidentally on the winning side in the last election and thus being qualified now to help lose the next.

The advice that this self-admitted wizard gives his candidate and his coworkers is always the same. It is based on the one thing in which he is unquestionably accomplished, namely simple arithmetic. Subtract votes from the other side, add them to your totals and, mirabile dictum, you have a majority. 

From this, accordingly, the strategy. You abandon your own supporters and their aspirations and desires — they are deemed to be yours anyway — and put on as impressive as possible an imitation of the opposing candidate and his program. There is always thought to be something clever, even deviously brilliant, about thus setting aside one’s own beliefs and principles along with those of the candidate. The press responds wonderfully: “That fellow is certainly politically adept.” The name of Machiavelli is invoked by the many who have never read him. Such praise then reinforces the political magician in his error and, needless to say, in his self-esteem, and, sadly, it also impresses the candidate.

Speaking of ACLU BS, the idea that the press is the friend of the left and those who the left either serves or it is no left at all, the underclass,  is in almost all cases complete bullshit.   They're corporate whores who know one thing above all, which side their own bread is buttered on.   The "right to lie" which the "civil libertarians" won for them is one of those backfiring Warren Court rulings I mention below  

Also, I try to remember to capitalize "Voter" and the noun "Vote" because it is always forgotten that those are the very trunk of legitimate government.  Without the real consent of the majority, those three branches including the goddamned Supreme Court are only a muslin tree under a climate change burning sky.

but the second is usurpation

I apologize for the length of this post, which is probably a mistake because some of you will see this and decide not to read it.  But I think it's at the heart of the problem and I give what I think will have to be done if the recent decrees from the Roberts Court turn out to be as disastrous as I fully believe they will be.   They are certainly headed in that direction,  though MS-Now lawyers and liberal and even liberalish journalists are holding on to any of the impotent and always calculating hedgings and dodges that the Roberts Court is taking in light of the disasters it has already created as if those are life preservers for the democracy they are as intent on destroying as the most anti-democratic of the Federalists were in the last years of the 18th century.   

I AM GOING to start off with the footnote on the beginning of the third section of Louis Boudin's argument, in which he lays out the terrible and momentous though rather banal case Marshall used to invent the Marbury power, claiming the right of the Supreme Court to act in a legislative role and nullify a duly adopted law of the Congress and president.  Note that Marshall as John Adams' the last Federalist Party president's Secretary of State had a direct role in the court-packing in the last hours of his Federalist Party's in control of the presidency - it never again had that control of the elected government, such was the potency of the Jeffersonian revolution in its democratic expansion of the heretofore elite favoring meaning of the Constitution.  

But the Federalists lived on in the Supreme Court under Marshall. That influence lasted there, several decades in living action and ever since in Supreme Court influence on the course of the country.  Which is one of the worst things about Supreme Court made law and the nullification of legislative law, Congresses get voted out of office and the evil they do has a good chance of getting overturned by something like the will of the majority.  Courts and the conservative to reactionary inclinations and habits of lawyers, judges and, worst of all, "justices" aren't even reliably overturned by even Constitutional Amendments as the history of the 14th Amendment in the hands of an aristocratic Court proves.

I have every confidence that that is relevant to Marshall inventing a power for the use of his political side especially as it turned out it could never, again, win the control of the elected branches it had had.  It's certainly relevant to both the use of such powers - and those which the court erected on top of this first power-grab - in both the Rehnquist and Roberts Court when the scope of its danger have become indisputable to anyone honest enough to admit that and the clearly partisan nature of Republican controlled Courts in the last half century.   

Though, as you might know from my criticism of a lot of the atypical supposed civil liberties rulings of the Warren and Berger Courts, I don't put much stock in the wisdom of "liberal" Courts, either. 

1.  The facts of this celebrated case, in so far as they are material to understanding of the decision, were as follows.

After the great victory of the Republicans in the election of 1800 — "the Revolution of 1800" as Jefferson called it — the Federalists [the losers of that election] utilized the brief term of power which was left to them to remodel the federal judicial system and to fill the federal courts with their partisans.  [Among the reforms desperately needed is the shortening of the length between someone losing the presidency in an election and their end of term.] As part of that work they created, by an act passed February 21, 1801, certain justiceships for the District of Columbia;  and one William Marbury, the plaintiff in the case, was appointed to one of these justiceships.  His nomination was confirmed by the Senate March 3, the last day of the Adams administration, and his commission was signed that night by the president and sealed by Marshall, the secretary of state.  On that night Marshall himself was commissioned as chief justice of the United States.  Marbury's commission, however, was left undelivered for lack of time;  and when Jefferson took office he forbade its issuance, on the ground that the appoitnment did not take effect until the delivery of the commission, and he was therefor free to revoke it. 

Marbury then applied to the Supreme Court, now headed by Marshall for a mandamus compelling Madison, Jefferson's secretary of state, to issue to him his commission.  To the order made by the court, commanding the new secretary of state to show cause why the mandamus should not issue,  Madison paid no attention.  After long deliberation, the court gave its decision in 1803, refusing to issue the mandamus.  In the opinion delivered by Marshall, the court based its decision, not on the contention put forward on behalf of the administration, that Marbury was not legally appointed and therefore not entitled to the commission, which contention it expressly overruled, but on the alleged lack of power in the Supreme Court to issue a mandamus.  In order to arrive at this latter conclusion, the court had to declare unconstitutional a statute passed by Congress giving the Supreme Court such power.  And it is this part of the opinion that has made it famous. 

III

In 1803 came Chief Justice Marshall's decision in Marbury v. Madison.  Since this is not an inquiry into the broad question whether or not the courts should have the power to declare legislation unconstitutional under any circumstances, but rather a historical sketch of he development of that power,  I shall not enter into a discussion of the merits of that decision.  Suffice it to say that historically it was, as Mr. Cotton calls it, "amazing;" and that as a matter of legal reasoning it has been pronounced by many eminent thinkers unsatisfactory.

Nearly twenty-five years later Chief Justice Gibson of he Pennsylvania supreme court, one of the ablest judges that ever sat on that great bench, called Marshall's argument "inconclusive."

Its "amazing" quality does not, however, exhaust its historical interest.  It was undoubtedly a turning point in the history of our political institutions. But it lacked much of being what it has since been often represented to be,  and what it is generally understood to be by students of and writers on the subject.  

The fact is, the Marbury power has, itself, become, under the Supreme Court's habits developed under its power to define the Constitution, WHATEVER THE COURT SAYS IT IS AT ANY GIVEN TIME.  And, as the history of Supreme Court law making has proved, that whatever it says it is tends always to become ever more bold and broad, the worst of the actions of the Roberts Court in destroying first egalitarianism, then democracy and, as it has started and with such irony, if you are merely going by the words used to describe it, the republican nature of the American government, itself. 

It is therefor worth our while to examine a little more closely into its immediate significance at the time when it was rendered. [The footnote above is placed here in the text.]

Its positive historical importance lies in the fact that here, for the first time in our federal history, a court undertook to base a decision on is alleged power to declare a law null and void for its alleged repugnance to the written constitution. 

The right previously asserted by some judges as an abstract proposition was thereby turned into a concrete power, to be reckoned with as a part and parcel of our political system.  It created the politico-legal foundation upon which the imposing edifice of that power as it now exists was gradually erected.  

Boudin wasn't exaggerating the effect that this power has had because it decisively altered the relationship between the Congress and the Court, putting the Court OVER THE CONGRESS, THOUGH ONLY FOR AS LONG AS THE CONGRESS COULD BE DUPED INTO ACCEPTING THAT DOMINATION AND THE COURT'S USURPATION OF LEGISLATIVE POWER TO ITSELF.  

It is among those ironies mentioned above that in my youth, as the Warren Court made a very few, sometimes ineffective,  sometimes back-firing rulings that the white supremacists and their increasing allies and then partners, the affluent Republican establishment didn't like, they howled and moaned and carried on about Courts making law from the bench,  something which the very same had eagerly accepted as the "Constitutional order" for the rest of its history when those rulings, in the vast majority of cases, favored their interests and ideologies from the time of Marshall and after Warren had gone.   No doubt the very members of the Roberts Court majority had regarded that kind of "making law from the bench" with disdain in their law school years and, probably, hearing their parents and grandparents on the topic, in their infancy.  That law-making from the bench includes nullifying legislation of the Congress and state legislatures as well as Court invented requirements to be carried out by the executive and followed by the Congress.  It has come to mean even the Supreme Court majority appointing a president of its party and making one an impune monarch with greater powers of law defiance than George III had when the founders and later framers made a revolution and threw him off their backs. 

But the power which was actually exercised in this case [Mabury v. Madison] was a very limited power.  Two points should be carefully noted.  In the first place, the law which the decision annulled was one peculiarly relating to the judicial department and it powers, much like the law which was questioned in Hayburn's case.  In this instance, however, the law conferred upon one of the federal courts, namely, the Supreme Court, a distinctly judicial power.  In fact it increased the power of the Supreme Court.

What was really decided, in Marbury v. Madison, was that the Supreme Court had received certain powers from the Constitution itself, which Congress would not be permitted by that court either to increase or to diminish.   One might very well agree with that contention, without attributing to the Supreme court a general right of reviewing the acts of Congress in matters of general legislation.  

From the claim that the judicial department is a co-equal branch of the government, and that its purely judicial powers and jurisdiction, in so far as they are expressly given by the Constitution, cannot be encroached upon by Congress, which is all that the case actually decided, it is a far cry to the claim that the Supreme Court is the sole interpreter of the Constitution and that its interpretation is binding on the legislative department in all matters of legislation.  

I will remind you that one of the issues in the Hayburn Case, objected to by the "justices" and district court judges who wrote to Washington complaining about the role the Congress had given them in matters of pensions was that it made their decisions subject to revisions by, first, the secretary of war (the executive) and then the Congress (the legislative) when under the Constitution the branches were held to be independent of each other and to have distinct roles.  

The "justices" and judges before Marshall went so far as to assert that the congress had and were "possessed of an equal right of opinion" in matters of law and the Constitution.  Since there is no such power given to the Court that was asserted by Marshall and the mountain of dubious and evil Court legislation built on it after he died, any such "power"  for the Congress could certainly be claimed to be there on the basis of "implication" as much for either other branch.  There have certainly been formidable scholars of the law and the Constitution in the Congress and, to a lesser extent, in the presidency. [Note: I DO NOT mean William Howard Taft here.]  I think Lincoln on the subject makes more sense than almost any of the champions of the Marbury power.  And he was never claimed to be a profound scholar of the Constitution though he was certainly among the greatest of all who ever held public office in the United States. 

In the second place, there is a wide difference, particularly in political matters, between the refusal to exercise a power which one's opponents believes to exist — which is all that those who did not agree with Marshall could say — and the actual exercise of a power which that opponent believes not to exist.  To the opponent the first may be unnecessary modesty or weakness or, at the very worst, neglect of duty;  but the second is usurpation.

A further point deserves notice.  The practical result of the decision, and the only result that the ordinary man could see, was a victory by Marshall's political opponents, the Jeffersonians.  Marbury, a Federalist appointee of Adams, applied to a court controlled by Federalists for a writ of mandamus compelling Jefferson's secretary of state to give him the commission signed by the outgoing Federalist secretary of state.  He claimed the writ under a law passed by the Federalists.  The Supreme Court annulled the Federalist law [part of the Court Act, which was written by a framer and adopted by a Congress in which a number of them sat as members as well as signed by a President who stood as first among the framers, which Marshall was not one of.] and non-suited the Federalist claimant.  Jefferson won a practical and substantial victory.  

What did it matter what reasoning Marshall employed in giving Jefferson the victory?  The "man on the street" knew nothing of Marshall's reasons.  And if he did, he did not care.  He seldom does care for such niceties.  He is so intensely "practical."  He may have thought that Marshall used a great deal of technical language and acute reasoning in order to save the face of the court.  In short, there is noting in the decision to bring its importance, whatever that was, home to the "practical man" — a fact which is often of controlling importance in historical events. 

Of course there were not wanting at that time those who could read the future.  One of them was Jefferson.  They saw the legal significance of this decision and its possible implications, and they denounced it in unmeasured terms.  Jefferson bade it defiance;  and it is safe to say that, had there been any attempt to do anything under this decision while Jefferson was president it would have provoked a conflict in which the judiciary might easily have come out second-best. 

That is certainly among the reasons that Marshall and his fellows on the Court, Federalist and other, didn't dare to use it while those for whom its illegitimacy and danger were in their active memory.  I will note that the Marbury power grab was not the only radical revision of the written Constitution undertaken by the Court and, especially, by Marshall.  That he is the most cited of all the previous and ancient Supreme Court "justices" is exactly because so much of what he wrote in decisions has become the real constitution, the one which is not written in the document that allegedly rules us but the one which consists of Supreme Court "interpretation" of that document and the laws that it has both knocked down and those it, in fact, legislated into existence from the bench.   That is what government by judiciary is, the reality under which we really live. 

But in fact nothing was done under the power asserted by the court in Marbury v. Madison during the following thirty-odd years of Marshall's chief-justiceship.  Why this was so, it is not necessary here to inquire.  I will say, however, in passing, that Marshall's position as a constitutional lawyer and statesman has been much misapprehended, owing to later attempts to base the judicial power on his decision in Marbury v. Madison.  

In my opinion Marshall's great place in the history of our country is due, not to any doctrine of the limitations of the legislative power, which others deduced from that decision more than half a century later and with but doubtful warrant, but to the liberal spirit in which he interpreted, and thus helped to develop, the legislative powers of Congress.

I have to insert that for a Chief "justice" who was so appalled at the Congress expanding the power of the Supreme Court in authorizing it to issue writs,  he had remarkably little reluctance for the "judicial department" meddling in the powers of the Congress.  Whether that was, ultimately, to the good or bad in those cases he did that,  I don't know.   But it is a good example of the quality of legal "reasoning" and its uses in the hands of those who are allowed to set the boundaries, ever changing of its authority to do what it wants to. 

Nor was the power to annul federal legislation used by the federal judiciary for many years after Marshall's death, not indeed until the troublous times that immediately preceded the Civil War.  During Marshall's chief-justiceship and under his successors, a number of state enactments were declared void because in conflict with the federal Constitution, and particularly because of attempted encroachments upon powers attributed to Congress; but the first case in which an ordinary law of Congress was declared unconstitutional was that of Dred Scott.  And the only case besides Marbury v. Madison in which any law can be said to have been declared unconstitutional before the fateful Dred Scott decision was the negligible case of Fereira v. the United States, decided but a few year earlier.  It will thus be seen that for at least half a century no attempt was made by the federal judiciary to exercise the power asserted in Marbury v. Madison.  And when it did act in this sense, it acted under extraordinary circumstances, in a attempt to solve by judicial decree an extraordinary political problem; and the attempt had extraordinary and disastrous results. 

If the consequences of the Roberts Courts' radical law-making from the bench, especially its openly partisan and, I won't mince words, anti-Constitutional consummation of the fascist, conservative Ivy League Law profs' and Federalist Fascist society unitary executive wet dream belongs on that list of extraordinary and disastrous results of Supreme Court supremacy would seem to me to be entirely likely.  If that brings about an eventual reform of the Constitution as momentous as those adopted in the wake of the Civil War,  I hope and pray that among those things adopted will be to once and for all abolish government by judiciary, and getting rid of the Marbury usurpation will only be one of the things they'll have to yank from the "justices."  

I will break up this long passage into two posts for ease of reading and commenting on it. 

It Got Late Last Night

 I accidentally posted the next to last draft of this morning's post last night before my last revision of it.  Doing that this morning, a few passages I wrote needed to get cleared up and some of my typos and elisions corrected.   Sorry for those who have read it in draft, I'll try not to hit the wrong button next time. 

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

WITH THIS SECOND part of Louis Boudin's argument we come right to the heart of the matter, the absolute fact that there is no explicit or honestly claimed implicit power given to the Supreme Court to overturn duly adopted federal laws in the text of the original Constitution of the United States.   As can be seen below, even a major scholar of the decisions of John Marshall, the inventor of that power,  had to admit that not only was there no such power given to the court in the Constitution, its presence in the document would have astonished the large majority of those who framed the document and who ratified it in the states - the claim of its universal authority over the People of the United States almost two hundred and fifty years after its ratification.   THAT IS A FACT WHICH HAS ALMOST UNIVERSALLY BEEN BURIED OR COVERED OVER OR SUPPRESSED AND I DOUBT MANY PROFESSIONAL LAWYERS OR LAW PROFESSORS WOULD DARE TO ASSERT THAT TODAY BECAUSE IT WOULD BE PROFESSIONAL SUICIDE TO DO SO.   

I have said that its insertion into the real Constitution, not the document that was drafted in 1787 or ratified in the months after it was put out for consideration or even as amended in the prescribed manner, but the constitution that has real and powerful effects which is a creation of the Supreme Court,  that its imposition on the United States was first by stealth, the court waiting thirty-seven years before springing it on the country in its first significant use in the Dred Scott decision.  And after that in increasing use of it on behalf of slavery, white supremacy,  the wealthy, employers against employees, men wishing to dominate Women, for those prejudiced against minorities and in the present centuries by Republican "justices" to first appoint a president who lost an election of their own party, to reimpose Jim Crow (now John Crow in "honor" of the author of our new apartheid, Mr. Chief "justice" John Roberts) and in other ways ensure the dominance of the minority of voters and up to and including creating a monarchy in Trump v. USA so that the worst president in our history could run a reign of crime and terror such as we have certainly not known since the era of slavery.  

It is that financial, ideological and power interest that the wealthy and already powerful have in maintaining the Marbury power that leads to the case that it is illegitimate being forbidden, a taboo which, if broken by those with the ability to refuse to follow it must be suppressed.  

To an extent all Constitutional lawyers and scholars, whose stock and trade is in THE LORE of the law as that has grown up, have a financial and prestige stake in maintaining the many lies you have to tell to hold it up, one of the reasons I have said that I doubt any lawyers among those in Congress or in the presidency would even consider doing that.   Just as in the early years under the Constitution, when those who actually wrote and adopted it were alive to be in Congress and in the presidency was a new world, the overturning of Marbury would created a new world in the law, in government, in the culture of those institutions and would require a lot of the old junk built up in rulings and law theories be scrapped - something that science does regularly but with far more reluctance than is generally acknowledged.   

I'm sure many a lawyer would hate having to do the reading AND THINKING that would come with that.  Entire careers of academic scribbling would become moot. 

Though I will point out that with the Rehnquist and Roberts Courts overturning vast areas and even a centuries worth if not more of that lore and habit,  we are already in uncharted and far more dangerous waters than anyone would have guessed thirty years ago.  

We don't have much of a choice but to go in a different direction if we are not going to lose democracy, admit that we've rejected equality and even, ironically considering the claims of the likes of "justice" Lurton, a government of laws and not of corrupt men whether in black robes or the mad and stupid king they have imposed on us. 

I could say a lot more but I'll give you the next section without much breaking in. 

 II 

Turning now from pre-convention history to the Constitutional Convention itself, and to the document which that convention framed, the candid student must admit that there is absolutely no evidence whatever of any intention on the part of that body to invest the judiciary with any sort of control over federal legislation or over state legislation in matters admittedly within the competence of the states.  And even if it be assumed, as it is commonly assumed to-day, that in those matters in which state legislation was made subordinate to the federal Constitution and laws it was the judiciary, rather than any other federal governmental department, that was to act as guardian of federal power against state aggression, there is not the slightest evidence that the framers intended to confer upon the judiciary anything approaching the degree of control over state legislation which in later times and by slow expansion of "implied" authority the judges came to exercise. 

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 obvious implication.  and there is ample historical proof that — whatever the hopes 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 new Constitution.  

They evidently assumed that such an extraordinary power could not be exercised unless expressly granted.

The judiciary article as finally formulated was adopted without a dissenting vote and almost without discussion.  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.  Richard Spraight for one, whose fiery denunciation of this power I have quoted above, would have made the halls in which the Convention met ring to the echo with his emphatic protest, had he suspected any such implications.  

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 implications.  

Even Hamilton, who saw more clearly than did the others the possibilities arising from the silence of the document on this vital point, probably never dreamed of any development of the judicial power as has taken place since his day.  Mr. Joseph P. Cotton , Jr., puts the case rather mildly when he says, in his introductory essay to the latest edition of John Marshall's constitutional decisions, in speaking of Marbury v. Madison

"Common to this conception of the powers of our courts now is, it is hard to comprehend the amazing quality of it then.  No court in England had such a power;  there was no express warrant for it in the words of the Constitution;  the existence of it was denied by every branch of the government and by dominant majority of the country.  Moreover, no such power had been clearly anticipated by the framers of the Constitution, nor was it a necessary implication from the scheme of government that had been established." 

OK, I have to break in here to point out that if there was a hidden passage in the Constitution as it would have had to be to find the Marbury power in it,  then the Constitution has to be held to be a sham and a con job, something sold to the American People the way that a sleazy lawyer writes up a contract with language to confuse and dupe the signer into agreeing to things they have no idea they are agreeing to but which a sleazy judge would claim they clearly agreed to and held it to be legally binding.   You can't have it both ways, either that language is neither there nor implied or the framers were con men as I would hold that the Supreme Court has been in creating such junk as the Marbury power, corporate person-hood, . . . presidential immunity and a Constitutional right for office holders to accept bribes for their acts as long as the loot is delivered after the act is taken. 

I think the "amazement" in light of the clear judicial modesty (including as seen below) in the pre-Marshall judiciary as opposed to the arrogant boldness of the courts that came later is a direct product of that original judicial creation of that power for itself. 

Mr. Cotton may well call the decision in Marbury v. Madison "amazing,"  for prior to that decision the federal judiciary itself did not claim to have obtained the powers in question by the adoption of the Constitution.  

Hayburn's case, so-called gives a fair picture of the way in which the judges themselves regarded the relative positions of legislature and judiciary, under the government established by the Constitution, during the first years of its adoption.  

The consideration of that case should be prefaced by the remark that, upon the adoption of the Constitution, and because the powers now under consideration were not then believed to have been granted by the Constitution, the federal judiciary was considered of little importance, and so inferior and subordinate to the legislative and executive departments that our first presidents had great difficulty in getting men of high standing to accept position on the United States Supreme Court.  The judges themselves were evidently in fear of encroachments by the legislative department upon their dignity and prerogatives.  That was the atmosphere in which arose the following facts, which are usually referred to as "Hayburn's case."

The first United States Congress passed an at "to provide for the settlement of the claims of widows and orphans barred by the limitations theretofore established, and to regulate the claims to invalid pensions."  Under the provisions of this act the claims were to be passed upon by the federal circuit courts, whose decisions were to be subject to the consideration of the secretary of war, and, if the secretary saw fit, to suspension, and to the revision of Congress, itself.  

The question of unconstitutionality, in the modern sense of the word, was not involved. 

But the judges saw in this act of Congress an encroachment upon the dignity and independence of the judicial department.  For this view there was good reason; for if the duties assigned to the judges were regarded as non-judicial and ministerial,  it was not fit that such a burden should be imposed upon them;  and if, on the other hand, these new duties were regarded as judicial, the independence of the courts was endangered by assigning to the executive and legislative departments power to revise judicial decisions. 

What were the courts to do?  We can readily imagine what they would do now, in any similar emergency.  What they actually did then shows how far we have traveled from the points of view held by the men of Massachusetts and of Virginia and of Maryland, who formed this government of ours. 

The members of the circuit court for the district of New York (Mr. Jay, chief justice of the United Sates,  Mr. Cushing, associate justice of the United States Supreme Court, and Mr. Duane, district judge) stated, in writing, their objections to the law.  They held that the duties which Congress had assigned to the court were "not judicial, nor directed to be performed judicially,"  and that the court as such could not perform them.  

But, they said, "as the judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the national legislature," they would execute this act in the capacity of commissioners.  And they proceeded to perform the duties imposed upon them. 

The members of the circuit court for the district of Pennsylvania (Messrs. Wilson and Blair, associate justices of the United States Supreme court, and Mr. Peers, district judge) and the members of the circuit for the district of North Carolina (Mr. Iredell, associate justice of the United States Supreme Court, and Mr. Sitgreaves, district judge) declined to act;  and they sent "representation" to the president, explaining their apparently insubordinate conduct.*  These "representations are strange reading to the lawyers of to-day.  We are used to different language from members of the "most august judicial tribunal in the world."

The matter was afterwards brought up by the attorney-general before the United States Supreme Court, on the question whether the judges had a right to decline to act.  And the official report says, that, although the judges were all agreed as to the unconstitutionality of the law, "the Court observed, that they would hold the motion under advisement until the next term; but no decision was ever pronounced, as the legislature at an intermediate session, provided, in another way, for the relief of the pensioners." 

No decision pronouncing an act of legislation void because repugnant to the federal constitution was rendered prior to Marbury v. Madison.  

The case of Calger v. Bull decided in 1789, in which an act of the Connecticut legislature was upheld is interesting,  just as Otis's argument in the Paxton case is interesting, because in delivering the opinion of the Supreme Court Mr. Justice Chase went out of his way to give his views on the abstract proposition of the right of the courts to annul legislation, irrespective of constitutional limitations, on the ground that it is "contrary to the first principles of the social compact."  The case is interesting, further, because in asserting obiter the authority of the court to declare unconstitutional laws void,  Mr. Justice Iredell described the authority "of a delicate and awful nature' and said that "the court will never resort to that authority but in a clear and urgent case."  To the view propounded by Chief Justice Chase, Justice Iredell took exception, saying:

"If, on the other hand, the legislature of the union or the legislature of any member of the union shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is in their judgment contrary to the principles of natural justice.  The ideas of natural justice are regulated by no fixed standard;  the ablest and purest men have differed upon the subject; and all that the court could properly say in such an event would be, that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. 

* I will give you the long footnote on this paragraph because it demonstrates what Boudin said and because it shows how strictly the first members of the Supreme Court and district courts, some of them framers of the Constitution, saw a far sharper line of demarcation that the later members of the Court, not framers, breached in the Marbury case. 

1. The "representation" which the Pennsylvania circuit court sent t the president reads as follows:

"To you it officially belongs to 'take care of the laws of the United States be faithfully executed,' Before you, therefore, we think it is our duty to lay the sentiments, which on a late painful occasion governed us with regard to an at passed by the legislature of the union. 
The people of the United States have vested in Congress all legislative powers 'granted in the constitution.' They have vested in one Supreme Court, and in such inferior courts as the Congress shall establish, 'the judicial power of the United States.'  It is worthy to remark, that in Congress the whole legislative power of the Unites States is not vested.  An important part of that power was exercised by the people themselves, when they 'ordained and established the Constitution.'  This Constitution is 'the Supreme Law of the Land.'  This supreme law 'all judicial offices of the United States are bound, by oath and affirmation, to support.' 

" It is a principle important to freedom that in government, the judicial should be distinct from, and independent of, the legislative department.  To this important principle, the people of the United States, informing their Constitution, have manifested the highest regard.  They have placed their judicial power, not in Congress, but in 'courts.' They have ordained that the 'Judges of those courts shall hold their offices during good behavior,' and that 'during their continuance in office, their salaries shall not be diminished."

"Congress have lately passed an act, to regulate, among other things, the claims to invalid pensions.' Upon due consideration, we have been unanimously of this opinion that, under this at, the Circuit court held for the Pennsylvania could not proceed. 

"1st.  Because the business directed by this act is not of a judicial nature.  It forms no part of the power vested by the Constitution in the courts of the United States;  the Circuit court must, consequently, have proceeded without constitutional authority.  2nd, Because, if upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might under the same act, have been revised and controlled by the legislature, and by an officer of the executive department.  Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with the important principle that is so strictly observed by the Constitution of the United States.

"These, Sir, are the reasons for our conduct.  Be assured that, though it became necessary, it was far from being pleasant.  To be obliged to act contrary either to the obvious directions of Congress, or to a constitutional principle, in our judgement equally obvious, excited feelings in us, which we hope never to experience again." 

You should notice that all they were doing in this was not to overturn legislation for the general welfare or affecting The People in general by judicial fiat, they were refusing to follow the law in a very restricted realm of judicial action.  No doubt the present court would refuse to follow any Congressionally passed and presidentially ratified code of ethics on the Court, they refuse to even adopt a real and binding one instead of the absurd assertion that we can trust them to act ethically due to the fictitious "honor" of "their Honors" when the need for one is due to the fact that they have no honor that can be relied on.   

We can be fairly confident they would refuse anything that would make them actually do a full years work for the exorbitant pay and benefits they get on top of the grift they get from billionaires and millionaires. 

P.S.  I am very much tempted to go over the far more ethical "justice" Kagan's claims about the ethical conduct and especially her claims about the "non-political"  conduct of the "justices" which I'll leave by saying, considering this past term alone,  it was a steaming pile of manure.   Even the best lawyers have lying as the mother tongue of their profession.  

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.