People with six teeth defending people with 8 yachts is one of the greatest political achievements in modern history.
I almost didn't post it because I suspect a lot of People would focus on the people with six teeth when they should focus those who sold them on defending the people with 8 yachts. But I suspect the people who will see this here will get it right.
THE CONCLUSION of Louis Boudin's article on Government by Judiciary talks about Supreme Court two-stepping, issuing baldly contradictory rulings based on cases with identical bases as an example of the consequences of the great change in Supreme Court "rules" which were supposed to protect the country from the Supreme Court becoming what judges who favored a judicial veto of legislated laws warned about even as they advocated that, that the courts and, especially, the highest court could become exactly what those who opposed that court power said it would lead to, judicial tyranny.
And that tyranny, once established, quickly puts aside any notions of consistency or principles restricting them.
As "justice" Curtis noted in his dissent in Dred Scott, in that first significant use of the Marbury power grab, the majority baldly lied about the history of Black People being citizens in a number of the states both during the period before the Constitution was adopted and even as the Constitution defined citizenship in the United States as being based in who was included in the state constitutions at the time of the adoption of the Constitution. So the barrier against lying in a majority decision had gone, certainly in that first real use of the power if not earlier. Who is going to stop a Supreme Court majority simply lying or, as Sonia Sotomayor noted in her dissent in Trump v. Slaughter:
The majority’s decision continuing that trend today is egregiously wrong. In this case, the Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time. That decision does not just overrule precedent; it all but ignores that precedent exists.*
Which is exactly the same thing they did in the Dred Scott decision. Exactly that.
So the U.S. Supreme Court, under its own claimed rules, puts aside their rules for applying that supreme power, as Boudin laid out in the part I posted last week, they set aside the need for them to be consistent in how they applied that power in cases of exactly similar facts in cases they decided to decide, they put aside any requirement that they not lie in a decision of the Supreme Court and, with that, they can put aside even the most basic of restrictions on that power which they have given themselves, knowing that there will never, not in their lifetimes, be a sufficient super-majority in the Senate to remove them because their fellow Republicans will keep the worst of them there even as it has kept the most criminal president in our history in office. EVEN ONE WHO MOUNTED AN INSURRECTION AGAINST THE CONGRESS AND THE CONSTITUTION!
Knowing the arrogance of the Prep-Ivy League class, I am entirely confident that the Roberts Court majority imagined, as did the Republican elite did when it forged the "Southern Strategy," an alliance of money interests with white supremacists, especially in those Southern states where white supremacy has generally reigned, that the elite would harness and control its agents among the lower orders of their movement, giving them what they wanted, hate, while using them to get what they wanted, wealth and the power to gain and secure that wealth.
No doubt Roberts and Coney Barrett, at times joined, perhaps, by Kavanugh still are stupid enough to believe what they unleashed in Trump v. USA and other rulings in that line was still under their control. Goresuch, Alito and Thomas don't seem to mind as much that they clearly don't have that kind of control. Look at how Trump-Miller et al are flouting their recent birthright citizenship ruling.
When I said the Roberts Court was the worst in my generation's living memory and perhaps the worst in our history, I really, truly meant it. And I don't think I've demonstrated that I'm unaware of the sordid history of previous courts and that particular Court for most of its history.
I'm going to go long to finish this, both because it's illustrative of where the trend mentioned above started and how cruelly absurd the results of the Marbury power was even when it was white working class People who were the recipients of that species of "justice."
V concluded
The result of all these changes may be summed up in a sentence. There are now no such "plain and simple rules of interpretation as Judge Lurton claims; on the contrary, there are now practically no rules at all. Each case is supposed to stand "on its own merits," which, translated into ordinary English simply means that each law is declared "constitutional" or "unconstitutional" according to the opinion the judges entertain as to its wisdom.
This is another reason for the fact that almost all important constitutional cases are now decided by divided courts. Since there are no longer any set rules by which the judges can be guided, since they are left to determine the propriety and wisdom of laws according to the canons of politics and statesmanship, they naturally exhibit those differences of opinion which we expect to find in legislative bodies.
This leads our Supreme Court as well as our other courts, into the position — anomalous and absurd for a court, though perfectly proper for a legislature — of deciding in different ways cases similar in principle. Thus in the case of Holden v. Hardy the Supreme Court decided by a vote of six to three, that a law limiting the hours of labor in mines was constitutional; but in Lochner v. New York it decided, by a vote of five to four, that a law limiting the hours of labor in bakeries was unconstitutional. In principle the two cases of of course identical.
Under the old rules of interpretation, which limited judicial inquiry to the matter of legislative competence, these two cases must have been decided in the same way. Either both laws were constitutional or they were unconstitutional.
In the earlier case, Holden v. Hardy, the Supreme Court decided that the state legislature had the power to pass a law limiting the hours of work in any industry when it — the legislature — came to the conclusion that longer hours would endanger the health of those employed in that industry.
It follows as an irresistible conclusion that the bakery law was constitutional, the legislature enacting it having come to the conclusion that it was necessary for the protection of the health of those working in bakeries.
The decision in Lochner v. New York, declaring the law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers. They could not understand it. They accuses the Supreme Court of inconsistency. But the truth is that the court had discarded the old rules of constitutional interpretation and had adopted an entirely different theory.
An examination of the dissenting opinion in that cass, when it was before the New York Court of Appeals, and of the prevailing opinion n the United States Supreme Court, clearly shows this shifting ground.
Under the new rule of interpretation, it is no longer a question whether the legislature has the power to limit the ours of labor, when it determines that such a limitation was necessary for the health of those engaged in a particular industry; the question is whether that power has been wisely used.
The legislature has found that work in a bakery beyond a certain number of hours is dangerous to health. But, says the court, we don't consider it so. And it was their judgement of the matter of the healthfulness of work in a bakery, not their judgement on the constitutional power of the legislature, that led five out of the nine judges the declare the law unconstitutional.
We are not now concerned with the question of whether their conclusion was correct or erroneous. What concerns us is the fact that the court assumed the distinctively legislative function of deciding whether circumstances existed which required remedial legislation.
This position is opposed to that which the court took in Munn v. Illinois. Even in that comparatively late case the Supreme Court still held that such an inquiry was part of the function of the legislature, and none of the court's business.
It said: "For our purposes we must assume that if a state of facts could exist that would justify such legislation, it actually did exist when the statue was under consideration was passed." In other words: if the legislature has the power to limit the hours of labor when the health of the employees demands it, the court must presume that the health of the employees in the particular industry which the legislature has undertaken so to regulate does in fact demand such a limitation of hours. Neither Judge Lurton, nor anybody else will contend that if this rule had been followed in Lochner v. New York the bakery law should have been declared unconstitutional because the law still recognized in Munn v. Illinois was repudiated.
Another glaring instance of the open assumption of legislative discretion by the judiciary is furnished by the recent decision of the United States Supreme Court in the case of Muller v. Oregon. In that case the Oregon statute under consideration limited the hours of work for women in "mechanical establishments, factories and laundries," to ten ours a day. This law was declared constitutional "as to laundries." The Supreme Court conceded the power of the state legislature to limit the hours of work for women n the ground that "as healthy mothers are necessary for healthy offspring the health of women is a matter of special concern to the state. And yet the court limited its approval of the exercise of that power to the case of laundries, reserving to itself the right to declare the law unconstitutional as to "mechanical establishments" and "factories" if it should conclude on future investigation that the state legislature had made an unwise use of its conceded powers as regards such establishments.
Approval of the decision in Muller v. Oregon as a matter of legislative policy, because of its effect upon the condition of the working class of this country, should not blind us to its significance as regards the distribution of political power in our governmental system. In the later respect it openly, I say almost defiantly, maintains the position that to the judiciary belongs the supreme control of all legislation and that it means to use it.
To say, in the face of these decisions and the many more that could be cited but for lack of space, that our courts do not exercise any legislative power, seems like adding insult to injury. And it is certainly a strange commentary on Judge Lurton's declaration, that the judicial power insures to us "a government of laws and not a government of men," that within three months after the publication of these words the New York court of appeals rendered a decision** which led the editors of two important magazines to the doleful conclusion that nothing can help us — not even an amendment to the Constitution — except the election to the judiciary of proper men, not men learned in the law and in the Constitution, but men with a knowledge of life and plenty of common sense. These editors meekly accept the political situation created by the latest phase of the development of the judicial power and merely suggest a remedy for our social and economic ills on the basis of that political situation.
But the great question before the people of the United States is: Shall we permit this great revolution in our political institutions to take place undisputed? And the question before our leaders of thought is: Shall we permit this revolution to take place without even calling the attention of the people of the United States to its momentous character?
L.B. Boudin
* In a case of stunning irony and bald hypocrisy, in his concurrence with the majority in that case "justice" Goresuch said:
Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all those powers too. From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.
I don't look forward to "justice" Goresuch doing much to abandon the Court's usurped powers of legislation. Congress never handed such powers to the judiciary, the Marbury power was founded on Marshall et all rejecting the Congresses power to give to the judiciary more power than was laid out in the plain reading of the Constitution.
It resulted in them taking on the role of a super-legislature and a vetoing virtual president. ONE WITHOUT THE POSSIBILITY OF CONGRESS CONFIDENTLY OVERRIDING THEM.
** Ives v. South Buffalo Railway Company
Here is the start of a description of the case an its aftermath I found online.
Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911), is the landmark New York case that briefly killed one of the country's earliest workers' compensation laws and, in doing so, helped reshape American labor law. On March 24, 1911, the New York Court of Appeals struck down the state's 1910 Workmen's Compensation Act as an unconstitutional taking of employer property without due process. The very next day, the Triangle Shirtwaist Factory fire killed 146 garment workers in New York City. The proximity of those two events intensified public pressure for reform, helping build momentum for a constitutional amendment, a redrafted workers' compensation law in 1913, and ultimately a U.S. Supreme Court decision in 1917 upholding the modern system. The case is a reminder that the protections injured workers rely on today did not arrive on schedule. They had to be fought for.
The sections below explain what Ives held, why it was so disruptive, what the public and the legislature did in response, and what the case still teaches about workplace injury law more than a century later.
To understand Ives, it helps to remember the bleak reality injured workers faced at the turn of the 20th century. Industrial accidents were common and often fatal, and the legal system offered very little support to the people they injured.
Under the common law that governed workplace injuries, an injured employee could recover damages only by proving the employer was negligent. Even then, employers had three powerful defenses that defeated most claims:
Contributory negligence. If the worker contributed even slightly to the accident, they recovered nothing.
The fellow-servant rule. If another worker, rather than the employer, caused the injury, the employer was shielded entirely.
Assumption of risk. Courts treated a worker's decision to take a dangerous job as acceptance of the dangers, absolving the employer from liability for injuries that resulted.
The practical effect of these doctrines was that most injured workers and their families were left without compensation. The cost of industrial accidents fell on the workers least able to bear it.
All of that seems well and good to us a hundred nine years later, but the Court in 1917 could have just as easily and capriciously overturned the law and who knows how long it would have taken for a different court to legislate in the opposite direction?
There were no voters to hold them to account as they could a legislature or a governor or president, the "justices" could do whatever they figured was in their interest at the time or, in fact, whatever they wanted to do. There is no higher court that they had to worry about overturning them, as can be seen in how they treat Constitutional amendments, not even the Constitution itself would do that.
I have to wonder if what Boudin and others were saying about ripping their own self-invented and grabbed legislative power from them figured in that decision, at all. I expect it did.
I can't imagine that all of those on the Court were unaware of such talk, I would be surprised if every one of them hadn't read Boudin's essay and others calling for that power to be taken from them. I am certain all of them were aware that the sole Socialist in the Congress, Victor Berger, had proposed a Constitutional Amendment that would do that. I don't think it's improbable that the modern idea of workers compensation when they are injured or killed as a consequence of their employer putting them at risk owes its survival on the killing floor of equality and democracy that is the Supreme Court and the lower courts under it to this article I've been going through.
I CAN'T RESPONSIBLY not mention it at this point. If you read through my earlier post you will have read this paragraph:
These same cases will also show that we have very effectually disposed of the last safeguard against the establishment of a judicial veto upon any and all acts of our legislative assemblies by discarding the rule that the courts must limit their inquiry to the question of the existence of the power which the legislature has undertaken to exercise, and that where the power exists its exercise is beyond the judicial sphere of influence. The courts now openly review the use made by the legislature of its conceded powers, thus arrogating to themselves a distinctly legislative function.
What the Supreme Court does, the legislative function it usurps when it nullifies a duly adopted federal law, is, in absolute fact, an unconstitutional veto on legislation the Congress has passed.
Anyone who claims such a power is to be found with a judicial Ouija board in the Constitution is lying. And the means of knowing beyond any possible doubt that they are lying is found in the Constitution, in the plainest language, in the very body of it, in the first articles of it defining the roles of first the most essential body, the Congress and then the Presidency, IN WHICH THE ONE AND ONLY VETO POWER INCLUDED IN THE CONSTITUTION IS LAID OUT IN AS EXPLICIT A WAY AS COULD POSSIBLY BE DONE.
The first veto is by the Congress when they refuse to make give a proposed law the votes necessary for it to become law. That's such an intrinsic role of the legislature that they don't even bother to call it that. Nullification of proposed legislation is an intrinsically legislative action.
The second veto is given to the president, and it is not an especially strong power because there are rules laid out by which a president, by his action or inaction, either issues a veto on the legislation or not and it becomes law through action or inaction.
And even that presidential veto power is restricted because if a sufficiently large majority in both houses vote in favor of it, they can quash a presidential veto and the legislation becomes law without the presidents approval.
With those strong and explicit definitions of a legitimate veto under the Constitution, any asserted judicial veto of such laws can only be either the founder's pulling a con job on We The People and, therefore, it is illegitimate or, what actually is the case, the unelected "justices" on the court lied us into having one by them usurping that power which belongs, not only in a weak way to the president, but in a decisive way to the Congress.
If the framers gave the president a power to veto legislation that can be overcome by the congress overriding that veto, IT IS BEYOND ANY DOUBT THAT IF THEY INTENDED THE UNELECTED COURT TO HAVE ONE THEY WOULD HAVE GIVEN THE CONGRESS THE POWER TO OVERRIDE A JUDICIAL VETO, ONE BY WHICH, AS BOUDIN POINTS OUT, A MERE MAJORITY BY ONE OF THE "justice" NULLIFIES A DULY ENACTED AND OFTEN LONG-STANDING LAW, even laws repeatedly supported by Congress, presidents and previous Supreme Courts.
I thought someone should point that out, I can't recall it ever being put quite this way.
WE ENDED YESTERDAY with the beginning of the fifth section of Louis Boudin's argument against the power that the Roberts Court has used to nullify the Voting Rights Act and other laws in favor of white supremacy, America's indigenous and always very powerful form of fascism and to empower the political power of the Roberts Majority, the Republicans.
If you doubt its fascist nature, you certainly know nothing about how those it has targeted experience the results in the states and in the federal law. Especially as that really is as allowed by courts instead of the bullshit that they serve up in old-line civics and history classes and in the even bigger pile of it that constitutes the large majority of that real curriculum of both for most Americans, in descending order of power, these days, online fascist polemics, old-line lies about American history and the alleged Constitutional order, Hollywood crap, movies and TV, right-wing hate talk radio, libertarian fantasy, Broadway style shows with "music" and dancing, Aaron Sorkinesque media productions, hagiographic print media such as best seller biographies of the founders and framers, and more along that line, the easier to consume the more influential it is. That is the brood-house where young fascists, recently born, take the place of the old line racists, segregationists, KKK and other violent members of groups such as MAGA and the like, and genteel members of legal societies such as staff the fascist end of the Roberts Court.
They are aided by go-along-to-get-along lawyers, politicians, journalists and academic scribblers and babblers of all political stripe who know that their reputations for soundness and perhaps even their reputations as lawyers depend on them knowing nothing as to the true history and present usage of that power, the absolute fact admitted by even its honest supporters that it appears nowhere in the Constitution which was drafted by a body including some who were vehement enemies of the judiciary holding the power to nullify duly enacted law. The Constitution drafted in a country which had very recently known public furores over state and local courts asserting such a power in New York, Rhode Island, North Carolina, etc.
If such a power had appeared honestly and forthrightly in the Constitution its narrow ratification in the states would almost certainly never happened. And the narrowness of that ratification and the sometimes shifty means that the federalists took to rig votes in at least several of the states is the real history of it, a history attested to by no less than John Marshall in his biography of Washington, even as he lied about it in his judicial scribbling. But today all of that is a suppressed truth.
The framers of the Constitution, fully knowing the objections to that power from such vocal members of the Constitutional Convention as Richard Spraight would never have dared to include it honestly and forthrightly.
They would hardly have dared to include one stealthily and dishonestly by secretly inserting it in occult language into the document where it would certainly be discovered by the able opponents of that power who could read and understand its implied presence. Spraight and many of the other ardent opponents of it were as able lawyers as the drafters who might have wanted it there. Stupid they weren't, as a reading of the best of the anti-federalist papers proves. The opposite is claimed by its stupider supporters, who like Trump seem to be influential in direct proportion to their stupidity.
And if they did secretly insert that power into the Constitution, it has no right, whatsoever, to the claim to the original acceptance by "the people as a body" because it would have constituted a massive con-job played on them, a con of which only crooked lawyers would claim was legitimate and those crooked lawyers who had been elevated on the basis of their past service to some establishment of power or other who had gained their seats on courts because of that (Roberts, Alito, Thomas, Kavanugh and Coney-Barrett are certainly examples of that). The framers of the Constitution would be no better than the majority on the Roberts Court or the sleaziest members of earlier courts going back through the Taney Court which first used the power to nullify the personhood of Black People, enslaved and freeish, and to, in real effect, nullify the state laws abolishing slavery in their territory and the territories in which the Congress had forbidden its spread.
Lin-Manwell Miranda and Aaron Sorkin might not tell you that, Ken Burns might be a bit more inclined to do that, though I doubt he could without endangering his funding or his virtual guarantee that his next project will get on PBS. I expect many of his celebrity voice-artists would flee from such a project.
But I just did tell you. And, to my critics, I'm proud to do that.
I will repeat the beginning of section five in case someone didn't read it and so the argument will be complete here: I will try to resist breaking in though there is hardly a paragraph or sentence that I wouldn't like to do that, only reminding you that things have gotten far worse than they were when Boudin was writing this.
V
Turning now from a study of the past to a consideration of the present [that present being c. 1911], we must be appalled by the enormous change which has taken place in the distribution of powers in our government not only from the time of the men of Massachusetts, Virginia, and Maryland, guided by Montesquieu and English precedent, first formed our government, but also from those later days when our judges, under the able leadership of John Marshall, succeeded in establishing their position as guardians of the Constitution.
Instead of "walking in the footsteps" of either the founders of our government or the earlier judicial interpreters of our Constitution, we have now abandoned all restraints upon the judicial power. We have thrown to the winds all those great limitations, embodied in principles and rules of interpretation, which the earlier judges imposed upon their own power — a power which they deemed necessary for our orderly development, but the danger of which, when not properly limited, they clearly foresaw.*
One cannot read the latest decisions of our courts, either state or federal, without being forced to admit that they have usurped supreme legislative power, and that we have reached the condition of "judicial despotism" which Justice Clifford feared.
Benevolent this despotism may be, or otherwise: that depends on the individuals who wield the power. Its benevolence is also largely a matter of opinion, depending on a variety of consideration, some moral and some material. As is well known, it makes a difference whose ox is gored.
But whatever difference of opinion there may be as to the spirit in which this power is exercised, it must be admitted by all candid students that the power itself spells despotism. The essence of despotism is the right of the few to make the laws or to control their making, without being responsible to the people.
I will break in here to again assert the relationship of the Supreme Court acceptance of partisan (and with that certainly Court accepted racial) gerrymandering as fatally weakening the power of a majority to exercise that vital control on even the legislature and expand that to include the very real deadening of it on the executive by the Constitutional atrocity, the Electoral College. The deadening effect of the anti-democratic Senate in which a small rural minority of the population - and it's not even all of the rural majority states, it certainly doesn't include Vermont and sometimes doesn't my own state as well as a few others, on occasion, it is the most backward and white-supremacist inclined of them acting similarly to have the same anti-democratic effect on our federal government, often encouraged by the mass media freed by the court to lie with impunity. Allowing the conservative dominated Supreme Court to put its massive fist on the scale in favor of that is the history of why America has yet to fulfill the basic promises made in both the Declaration and the preamble to the Constitution.
I will give that last sentence again because it briefly states the danger that comes with allowing the Court to nullify federal laws as succinctly put as possible, though I'll point out that I vehemently disagree with Louis Boudin's use of the term "the right of" because holding public office doesn't confer rights that don't belong to every single person, it creates responsibilities freely taken on. Also note I have numbered the ways in which Boudin shows that the Courts after the Taney Court had opened the floodgate to Supreme Court legislating from the bench, all the previous claimed essential boundaries of such nullification of federal laws have been mowed down like the voting rights and civil rights acts of the 1870s and 1960s have been.
The essence of despotism is the right of a few to make the laws or to control their making, without being responsible to the people. This condition is admitted by many able and learned jurists. They seldom employ the harsh term that I have borrowed from Justice Clifford; but despotism retains its sting no matter what it is called.
1. The first restraint to go by the board was the principle that this power was of an "awful nature," as Justice Iredell expressed it, an extraordinary power to be used only on extraordinary occasions for extraordinary purposes.
It has become an ordinary power, used by our courts without hesitation as one of their regular functions. It is well within the truth to say that our federal and state courts now annul in one year more laws than they annulled during the first half of our national existence.
The power is now used by every petty magistrate, and we are so accustomed to its every-day use that to speak of its "awful nature" seems like a bad joke.
2. The next restraint to be thrown off was the principle that a law cannot be declared unconstitutional unless it contravenes some special provision of the Constitution applicable to the subject, expressly stated in the Constitution or contained in it "by necessary implication," and that neither the general protection accorded to life, liberty and property nor the so-called "spirit of our our institutions" gives sufficient cause for such annulment.
Most of the important decisions declaring legislation unconstitutional are now rendered in violation of that principle. The chief grounds for the annulment of legislation in recent years have been the modern doctrines of "due process of law" and of "liberty of contract."
According to the earlier view, neither of these doctrines would have justified the courts in assuming the control over legislation which they now exercise.
When the phrase "due process of law" was first used in this country, as part o the usual bill of rights in our state constitutions, from which it was subsequently taken over into our federal Constitution, this phrase had a well known and clearly defined legal meaning, which was the same as its literal meaning, namely, that of a procedure under general law, with proper trial or hearing.
And it was in this sense that the phrase was used until comparatively recent times. But now it has acquired an entirely different meaning. As it is now used by our courts when they declare legislation unconstitutional for contravening it, it means substantially the same thing that was meant by "natural justice," "principles of liberty and justice" and similar expressions in the earlier days of our constitutional history.
Denial of "due process of law" is now discoverable in any law that requires or permits something to be done which the judges deem unjust or not in accord with the "free spirit of our institutions."
The doctrine of "liberty of contract," when used as a test of the constitutionality of legislation, is a still more glaring violation of the older rule.
The federal Constitution nowhere mentions any such "liberty." It is claimed, however, by our judges (in modern decisions, of course), that it is part of the liberty guaranteed in the phrase contained, in one form or another, in all our constitutions that "no person shall be deprived of his life, liberty or property without due process of law."
Aside from the question of the meaning of "due process of law," which has just been considered, there is an additional difficulty with this particular "liberty," namely, that it was entirely unknown and undreamed of at the time we borrowed our "life, liberty and property" phrases from English constitutional law.
It is therefore evident that this particular "liberty" was not originally contained in our constitutions. And in fact no such "liberty" was asserted until recent years.
When did this "liberty" get into the Constitution? Evidently when we infused into the old words the new "spirit" of extreme individualism. And now we declare legislation unconstitutional on the ground that it is repugnant to this "spirit," and we call this "walking in the footsteps" of our forefathers!
3. The rule that the violation of the Constitution must be "clear palpable and free from all doubt" had to disappear with the other restraining rules when the express provisions of the Constitution were disregarded as a test of constitutionality of legislation and the vague "spirit of our institutions" was substituted therefore.
The "spirit of the Constitution," the "spirit of our institutions" and the "principles of our government," which are now used as criteria of constitutionality, are in themselves empty phrases into which not only each generation but each individual puts a different content, according to his own philosophical, political and social principles.
What Justice Iredell said of 'the principles of natural justice' is equally true of these newer principles: 'The ablest and purest men have differed on the subject.'
In this realm nothing can be said to be "free from doubt."
Uniformity of opinion, except among close political associates and kindred philosophical sprites, is here extremely unlikely And so we have lived to see the power which was originally supposed to be used only in cases "clear, palpable, and free from all doubt," used almost regularly by divided courts, often by bare majorities. And the uninitiated wonder: how is it that a provision, of which one judge emphatically asserts he is able to find no trace whatever in the Constitution, is asserted by another, and with equal emphasis to be clearly and plainly written therein?
The reading of a few important recent decisions, such as Lochner v. New York, Adair v. United States, People v. Williams and Ives v. South Buffalo Railway Company, will sufficiently illustrate the points just made.
These same cases will also show that we have very effectually disposed of the last safeguard against the establishment of a judicial veto upon any and all acts of our legislative assemblies by discarding the rule that the courts must limit their inquiry to the question of the existence of the power which the legislature has undertaken to exercise, and that where the power exists its exercise is beyond the judicial sphere of influence. The courts now openly review the use made by the legislature of its conceded powers, thus arrogating to themselves a distinctly legislative function.
I will continue this next week as I have the last few sections of Boudin's examples because this post is already long. I will remind you that if you want a preview of what I might say about it, you can read his 1911 article online or, if you can find it, his great 1931 work with the same title, Government by Judiciary.
* Note: I am working on a post laying out the original claim of why that power was needed and giving case after case as to why, if that's the reason for it, it has not worked as it supporters claimed was necessary. The gap between the stated intentions of it and the actual use of it under judicial practice isn't a gap or even a chasm, neither of those metaphors are big enough to take in what they have swallowed in their usurpatious hypocrisy. If you want an example, look at the record of the Roberts Court since 2015.
I DON'T AS A MATTER OF FACT have any idea how many people are still reading this series, I decided when I started writing blog posts to never look at the statistics because I didn't want that to influence what I investigated.
Despite the speculation that it's a flop for lack of readership, I'm determined to finish it with whatever supplementary material I think is relevant to the case against the Marbury power that has been one of the most destructive forces in the history of the United States, something which is only getting worse with every year the Supreme Court runs down any progress towards equality, democracy, a decent life for the majority through them favoring billionaires, millionaires, white supremacists, men, etc.
The Roberts Court is, in absolute fact, the worst court in my generations living memory and, as I argued, as bad if not worse than any of those during the periods of slavery and the previous reign of the American apartheid the Roberts Court has brought back.
Either we abolish that power grab by the Court now or we will in whatever aftermath there is in the bloody, violent disaster they have wrought with it. And that is a literal warning, they're bringing us to that just as the Taney Court used it as they played a decisive role in causing the Civil War.
TAKING UP where this left off with Nathan Clifford's warning about what the power of the Supreme Court to nullify duly enacted federal laws would lead to, "judicial despotism,"
IV concluded
As a corollary to the principle mentioned by Judge Knox that there must be some fixed rule by which the power of the courts to annul legislative action may be measured and by which the constitutionality of legislative enactments may be tested and in order to prevent our government from becoming what Mr. Justice Clifford warned us it might become — a "judicial despotism" — the courts have, until very recently, adhered to a well defined and clearly expressed rule of interpretation that every inquiry into the constitutionality of a legislative enactment must be strictly limited to the question where enacting it had the power to legislate at all in the premises. Once such power was found to exist, the manner of its exercise could not be inquired into. No law could be declared unconstitutional on the ground that it was an unwise, inexpedient or improper us of a recognize power.
The courts distinctly disclaimed any power or right to protect the people against an abuse of power by the legislature in matters on which it admittedly had power to legislate. Each legislature, accordingly, was left absolutely free to use, according to its own best judgement, those powers at least which by the court's own admission were granted or left to it by the Constitution. The power of taxation, for instance, being admittedly reposed in the legislature, no court could interfere with its exercise no matter how unwise, improvident or even dishonest its use might be deemed. The same was held true of th power delegated to Congress to regulate commerce with foreign nations. This power was held to be unlimited; it could be sued even to the extent to completely forbidding commerce as was actually done by the Embargo act.
I'm going to break in here to point something really grotesque in the above, entirely true paragraph:
The courts distinctly disclaimed any power or right to protect the people against an abuse of power by the legislature in matters on which it admittedly had power to legislate.
I'd like you to think about how that proclaimed refusal of courts to "protect the people against abuse of power by the legislature" by a branch of the government, can possibly be squared with two texts, the first is the prelude to the Constitution, itself, and the claims of what the framers were framing.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
What is "justice" if it doesn't include protection from abuse by those with power?
The other text is the introduction to the Declaration of Independence which many of those key framers of the Constitution had sworn their lives and what many of them valued above all, their fortunes and the more dubiously asserted "sacred honor," to.:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
I will note that those who favored "happiness" be replaced with the word "property" would seem to have been outvoted in the writing of that declaration.
It is bizarre in the extreme that judges and, especially, "justices" figure the welfare of We The People isn't their proper concern in office. Though, as you can see below I wouldn't trust most of the "justices" in American history to not twist that to mean the opposite, I think that any legal training which included that it was the obligation of all judges, "justices" and "officers of the court" to act in accordance with the claims of the Declaration and the Constitution might have led to lawyers not being the disreputable professional liars and self-seeking, money-grubbing scumbags that so many are and even those who listen to their better angels professionally excuse.
This rule was laid down by chief Justice Marshall, who declared that "the interest wisdom and justice of the representative body furnished the only security in a large class of cases not regulated by any constitutional provision." It has been reiterated by the Supreme Court of the United States on innumerable occasions. In the famous case of Munn v. Illinois, decided in 1876, the Supreme Court said:
"We know that this is a power which may be abused; but it is no argument against its existence. For protection against abuses by legislation the people must resort to the polls, not to the courts . . . For us the question is one of power, not expediency. . . . Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge.
This rule was absolutely necessary in order to prevent the judiciary from exercising legislative functions, thereby converting our government into a "judicial despotism.
I will mention that I'm certainly not unaware of the propensity of the Congress, especially the Senate, to be run by totally immoral and degenerate People, that's a history only somewhat less pungently foetid than that of the Court or the presidency, though, especially in the House, they do have to answer to the voters. The history of the Congress frequently demonstrates the wisdom of Jefferson's observation that the closer to having to answer in that way through elections, the less likely any individual will be to follow corruption. Though, as the present House shows, that's a check on evil that such Supreme Court authorized things such as the gerrymandering of House districts weakens disastrously.
I would question how strictly even John Marshall followed his rule or, in fact, the other "justices." As I mentioned it is the business of lawyers, and by that I do mean why they are paid, especially by those who can pay them best, to try to find ways to do what they want to do, what lawyers are paid very well to do, the better they do it for the richest among us, the more they make.
I have mentioned the "Antelope case" the one in which, even though the Congress had, AS WAS EXPLICITLY SAID IN THE CONSTITUTION THEY WERE GIVEN THE POWER TO DO, prohibit the importation of human beings as slaves into the United States and where "justice" Marshall, an enthusiastic slave holder and despiser of free Black People in the United States, found a way to let off a ship's captain who violated that explicitly Constitutional federal law. I am sure there are many other instances when "justices" and judges on lower federal and state courts have found a way to shove many a camel through a needle's eye to justify them going against that principle by merely coming up with some excuse for having done exactly what they wanted to do.
That Marshall may have had to find some other excuse to let the pirate who stole People and sold them than a direct permission doesn't matter in the slightest bit in regard to what happened to those People and any others who may have been illegally brought into the United States as a result of his ruling.
But I will continue to suspend my disbelief in the . . . well, not virtue but at least integrity of such mere mortals because I don't want to leave you with the idea that any such purported ideal situation with the Supreme Court has held even for a decade. To show that, I'll give you the beginning of the fifth part of Boudin's argument.
Before starting that, though, I'll remind you that the present Louis Boudin was talking about was the situation in 1911, I would argue things have gotten much worse since then. I doubt any Court in 1911 would do what the Rehnquist Court did in blatantly throwing a presidential election, one decided in a state run by the Republican candidates brother as governor, with such a blatantly corrupt ballot being set by a clearly corrupt Florida Secretary of State and one about which one of the "justices" Sandra Day O'Connor, having said she wanted to retire from the court, was heard to bemoan the election having been called for the Democratic candidate because she, as Nathan Clifford had, was determined to make sure her successor was named by a president of her own party. That is until she and four of her colleagues made sure that is what would happen.
Much as I detest many of the "justices" of that era, I can't believe any of them would have supported the Roberts Court in Trump v. USA in which they endorsed the idea that a president would have an immunity from the law that George III didn't enjoy in the run-up to the Revolution or even after its conclusion. Despite the reverent coverage of the Court in the media, in fiction and, most important, on movies made for theaters and TV, we are living through the most decadent and corrupt Supreme Courts in the countries history. And, as Thomas Jefferson noted in his letter to Spencer Roane which I excerpted yesterday, the one and only means in the Constitution to reign in a Supreme Court or the most corrupt and criminal president in our history, which we are also living through, the so called "impeachment power" "isn't even a scare crow" in reality.*
V
Turning now from a study of the past to a consideration of the present, we must be appalled by the enormous change which has taken place in the distribution of powers in our government, not only from the time when the men of Massachusetts, Virginia and Maryland guided by Montesquieu [see the first post in this series or read Boudine's essay from the start of it], and English precedent, first formed our government, but also from those later days when our judges, under the able leadership of John Marshall, succeeded in establishing their position as guardians of the Constitution.
Instead of "walking in the footsteps" of either the founders of our government or the earlier judicial interpreters of our Constitution, we have now abandoned all restraints upon the judicial power. We have thrown to the winds all those great limitations, embodied in principles and rules of interpretation, which the earlier judges imposed upon their own power — a power which they deemed necessary for our orderly development, but the danger of which, when not properly limited, they clearly foresaw.
One cannot read the latest decisions of our courts either state or federal, without being forced to admit that they have usurped supreme legislative power, and that we have reached the condition of "judicial despotism" which Justice Clifford feared. Benevolent that despotism may be, or otherwise: that depends on the individuals who wield that power. . . .
I wonder if Boudin may has sneered when he wrote the word "benevolent" in that last sentence because the practiced, hypocritical and formally anodyne language of judicial opinions have expressed some of the cruelest, most oppressive and even homicidal rulings the black robed, quasi priestly hacks have ever issued in the mildest and most reasonable seeming language, sometimes proclaiming the benevolence of the result. The Dred Scott decision, alone, could serve as an example of that, the "justices" in the majority presented their extension of slavery and the de-personization of Black People as the salvation of the United States.
And at this point I will note a truth that is both self-evident and never mentioned, all slavery, even the most "benevolent" requires that violence is an intrinsic part in maintaining it, and by "violence" I mean causing pain, injury, maiming, terror and murder as being an intrinsic part of it without which slavery could not be maintained for an hour. That was a truth known by every slave and every person who ever held anyone in slavery, Taney, Marshall, Madison, Jefferson, Washington, etc. You only have to read the Constitution with your eyes fixed on those things which enhanced the slave power, as Wendell Phillips did in his 1844 book analyzing the Constitution as a Pro-Slavery Compact and the use of the Constitution even after official emancipation was used to continue the slave-power to come to something like a more honest and complete understanding of why we are where we are today.
And what is said about slavery is as self-evidently true about the subjugation of Women.
I'm not a complete cynic in regard to lawyers, judges and "justices." There are those I have respect for and believe they mean the best. I think the Warren Court was in many of its reputed "landmark" decisions given as if those actually constitute a history of liberation of the oppressed sincerely hoping that those would be a benefit to humanity and life in general.** But, of course, even if they had had more foresight into the consequences of what they were producing, the "meaning," the "interpretation" of those rulings in time were as subject to Supreme Court interpretation and reading and lying about as any other laws and, as said above that depends entirely on those who are doing that. Don't get me started on the confirmation process in the Senate, that only gets us back to me ranting about that anti-democratically staffed body.
I'll say it again, lawyers, which almost every Supreme Court "justice" in its history has been, are trained in the art of finding loopholes or "interpretations" of laws and the body of laws that is the written Constitution, that allows for what they want to happen, to happen. I would say that, as Jefferson pointed out, unrestrained by having to face the voters periodically to retain their office, safe from involuntary removal because, politics being what it is, the impeachment provision of the Constitution is a pathetic myth at the highest levels of public office, the Supreme Court can be a law unto itself.
It has stupidly allowed the power to make itself one through a Constitution largely made by lawyers and the Judiciary Act which was also written by a lawyer. Though if Jefferson and his administration had taken the bother, they could have clipped the Marbury power at its bud instead of, for expediency and due to the "justices" not exercising it in a significant instead of a already moot instance while the memory of its outrageous invention was fresh, that didn't happen. As Boudin points out, its first significant use was in the "justices" in their judicial wisdom (and in the clear financial interest of a number of them) issued the Dred Scott decision which instead of uniting the country in an epoch of "domestic tranquility, that decision tore the country apart. And that was when they seem to have had some of the restraints above limiting what they do. The Roberts Court, likely the most overtly corrupt one in our history, has gone far past that.
* As I've pointed out here, the 25th Amendment stupidly gives a criminal, corrupt, insane, senile, or all of the above presidents hand chosen cabinet the power to remove them from office in case of an emergency such as the one we face right now. It has failed that test due to the simple and entirely predictable fact that THOSE ARE THE HUMAN BEINGS IN THE UNITED STATES WITH THE GREATEST STAKE IN KEEPING SUCH A DANGEROUS PRESIDENT IN OFFICE BECAUSE THEY HAVE NO GUARANTEE THAT HIS SUCCESSOR WON'T FIRE THEIR CORRUPT, CRIMINAL, INCOMPETENT ASSES AS SOON AS HE TAKES THE OATH.
The Congress has, stupidly and irresponsibly, not created the alternative to that which the Amendment provides for, as they didn't create a mechanism for keeping a president guilty of insurrection from achieving what Trump did as the Supreme Court nullified that section of the 14th Amendment to grease the skids for Trump taking power again, after he mounted an insurrection. As I say above, they can come up with all kinds of reasons to make the Constitution and the law say what they want it to say at any given time.
** Please note, perhaps above all, that those judges and "justices" who proclaimed the necessity of their being restrained in exercising the power they gave themselves to nullify laws as "unconstitutional" would seem to disclaim that that power should be exercised to prevent evil or, I would guess, promote good. Which is a bizarre claim to be made about anything presented as a virtue. I would question how many times the "justices" exercised their power in favor of those who clearly want to do evil as opposed to the times they might credibly be accused of exercising it for the benefit of the least among us, the working class, the environment. My suspicion is any accurate spreadsheet accounting for those would show a distinct imbalance in favor of whatever further enriches the rich, permits them the liberty to do what they want to when it harms those with less money, members of disfavored minority groups, Women, etc.
If you read the more recent claims of the members of the Supreme Court in that kind of light, their notions of virtue and responsibility are clearly word spinning on behalf of just those with and against those without. I think the service to those with the deepest pockets is the most pervasive and durable notion of virtue in the culture of the legal profession. These days pretty much only those who have devoted their careers to that get on the Courts, even when it's most Democratic presidents who have made those appointments.
OK, I'M GOING TO SAY IT so you'll understand it.
The ONLY honest telling of American history under the Constitution is the struggle of those left out of the Constitution to pry from an unwilling privileged few what the Declaration of Independence promised them as their God-given rights, the rights which any legitimate government delivers equally to "All Men" - that is All PEOPLE - or it is an illegitimate government legitimately overturned by The People for one which does.
I mentioned the original success in that history of struggle against the Constitutional order set up in 1787, the very partial, very incomplete "Revolution of 1800" that overthrew the original Federalist establishment which had governed the country before then. That is especially on my mind because Jefferson's letter to Spencer Roane, September 1819, in which he talks about his election as a "revolution" is also highly germaine to my series about the usurpation of the Supreme Court that sets it over the elected government. In that letter he said:
DEAR SIR,—I had read in the Enquirer, and with great approbation, the pieces signed Hampden, and have read them again with redoubled approbation, in the copies you have been so kind as to send me. I subscribe to every title of them. They contain the true principles of the revolution of 1800, for that was as real a revolution in the principles of our government as that of 1776 was in its form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people. The nation declared its will by dismissing functionaries of one principle, and electing those of another, in the two branches, executive and legislative,
But that revolution was made by white men on behalf of white men, led by slave holders, "planters," whose planting was done by Black People held in slavery. That they held a broader view of those who should vote and hold the government on behalf of the many rural farmers, what Jefferson called "yoemen" didn't do much for anyone else who had to live under the government they didn't elect but which dominated the country and made its laws.
The real revolution that Jefferson boasted about took the abolitionist struggle, the Civil War and the passage of the Civil War amendments and passage of laws such as were included among those the Supreme Court had nullified, the law protecting the rights of Black men to vote and the Civil Rights Act of 1875.
But, as I noted in quoting that passage from Simeon Baldwin's 1905 book about the judiciary, those laws and much of the changes made as a result of the slave-power losing the war, handed victory to white supremacy through Supreme Court nullification of those laws.
It took almost ninety years to win back what was previously won through the most terrible domestic war in our history and the defeat of THE LAWS that permitted slavery as exended in the Dred Scott decision where the law said it could not go. And that Civil War era progress was then nullified by the "justices" on the Court - the same Court that had declared less than a quarter of a century before those laws were overturned ruled that Black People were not citizens and could not bring a suit in a federal court, it took until the mid 1960s for a new Voting Rights and Civil Rights act to be made laws during an all too brief period when the Supreme Court was not on the side of white supremacy, a rarity in the history of the Supreme Court and as the Roberts Court has shown, not a permanent situation.
How long it will take for the next Voting Rights and Civil Rights Acts to be made law, is anyone's guess. I will note that, especially, in overturning Voting Rights, the Roberts Court hasn't just overturned the original 1960s Congress and President Johnson who pushed it through to be enacted as law, they were overturning the Congress that, by a larger, bi-partisan majority reauthorized it and the Supreme Courts that had held it to be valid and binding federal law. I will predict that when a Congress and president who hold with equal rights passes a new one, the greatest danger to it will, again, be the Supreme Court acting under the Marbury power it invented for itself.
That role of the Roberts Court played was hardly new even in 1883 when the Court nullified the first Civil Rights Act, in the same letter that Jefferson wrote bragging about the revolution brought about through his election continued, referring to the Court starting c. eight decades earlier:
Over the judiciary department, the constitution had deprived them of their control. That, therefore, has continued the reprobated system, and although new matter has been occasionally incorporated into the old, yet the leaven of the old mass seems to assimilate to itself the new, and after twenty years’ confirmation of the federal system by the voice of the nation, declared through the medium of elections, we find the judiciary on every occasion, still driving us into consolidation.
Among the reforms that Jefferson, Madison et al attempted in the "revolution of 1800 was the break up of consolidation of power to the federal government at the cost of the state governments, which is what I believe Jefferson meant by complaining about "the judiciary on every occasion, still driving us into consolidation."
He is more explicit as to the Court's role in nullifying progress towards equality (and in many other ways) in the next paragraph. (Note, I'm giving you his words verbatim but changing the format for ease of reading and emphasis.
In denying the right they usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se.
"Felo de se" means suicide. In case you think I'm guilty of jazzing up my descriptions in this matter. His entire letter is interesting as an example of the problem with the Marbury power grab (he mentions it by name*) and, in fact, with the scheme of "balanced powers" and the meaning of the Constitution as written.
For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone [the Supreme Court], the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.
For experience has already shown that the impeachment it has provided is not even a scare-crow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment.
The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.
It is certainly worth noting here that the Congress that passed those original, post-Civil War voting and civil rights acts were full of those who had fought that war instigated by those who wanted to maintain slavery against whom those who fought for the Union had that as, certainly, their strongest motivation.
And it is certainly worth completing the thought by noting the Congress that passed the 1960s Civil Rights and Voting Rights acts and the president who pushed for their passage and signed them into law, had fought WWII against the Nazis, the Italian Fascists and the Japanese Imperial regime. They were witness to the consequences of inequality in ways that the generation that followed them were not. It turns out my generation and, perhaps in ever decreasing form till now, did not have the same "spirit up" but in regard to the ideal of equality, without witness to that same consequence of its absence, felt free to "relax." Though I will note that propaganda in the form of "news" and, far more effectively, entertainment which more people consumed, had a lot to do with that relaxation into the habits of white supremacy which are never far from the surface. That it is the slave-holder Jefferson who has given me this motivation to point that out is certainly a huge irony but that doesn't make it any less valid.
Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. [though, as can be seen over and over again, when propagandized they have every inclination to ignore moral law. Look at the Old Testament for deailed examples].
My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.
I'm not giving Jefferson's conception of the Constitution as one we should adopt going forward, or any other except to say that any one which doesn't have EQUALITY as its first principle is bound to devolve into unequally held, allowed and exercised freedom. Equality is the true bedrock of legitimate government, one in which the "just consent of the governed" is what determines the government to be and what gives its laws their real character. To say that something in the Constitution does that is absurd. Scripture talks about moral Law being written on the Peoples' hearts making written laws unnecessary. Without that, no human institution, including the U.S. Constitution is anything put a pause before it all goes to hell and there is nothing like lawyering to speed that process.
And what can be said about the constant nullification of progress towards justice for Black People and other People of Color can be said about Women, workers, about other groups who have been subject to inequality and injustice for our entire or part of our history. The Supreme Court is not a reliable champion of equal rights and are frequently the enemies of justice. They are far, far more often the implacable and domineering enemies of them.
* He gives several examples from when he was president, which are extremely interesting, here is where he mentions the Marbury power grab by the Court.
A legislature had passed the sedition law[ John Marshall was Secretary of State then]. The federal courts had subjected certain individuals to its penalties of fine and imprisonment. On coming into office, I released these individuals by the power of pardon committed to executive discretion, which could never be more properly exercised than where citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the constitution, and therefore null. In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions. They cannot issue a mandamus to the President or legislature, or to any of their officers.
Such was the mole hill on which the Supreme Court built its invention that, as Jefferson predicted, has dominated the entire history of the country, most often for privilege against justice, for privilege against equality. Now giving us a king.
AS SOON AS I READ about the decision in the Buckley v. Valeo case which overturned the bi-partisan clean elections laws passed to prevent another crime spree such as Nixon and his campaign and his Department of "justice" had engaged in through his Attorney General who, I'll remind you, went to jail because of his crimes, as soon as I heard the Court had overturned it ON THE BASIS OF THE FIRST AMENDMENT, INVENTING THE HUGE WHOPPER OF A LIE THAT MONEY EQUALS SPEECH, I became a complete and dedicated opponent of the Supreme Court usurpation in which they gave themselves the "right" to nullify duly adopted federal laws. That was fifty years ago last winter.
And, once I started researching the issue, you can bet I got into arguments about it.
"But what about Brown v. Board of Education," was one of the early retorts.
Brown v Board was not overturning a federal law, was the immediate answer. Though as I learned more about the actual effect of Brown in the erection of private white-flight academies in which the affluent put their children so they would not go to school with Black Children, something that state governments and Republican dominated Supreme Courts have supported with voucher laws and other means of getting private schools funded with money that should go only to public schools which have to accept anyone have become a thing.
I have not studied the issue of where the members of the Supreme Court, their children, grandchildren etc. have gone to school but I would not be surprised if such a study didn't show that the large majority of them didn't send them to public schools or that they'd not attended public schools, themselves. The majority on today's Court have not. I would go into that but it would get me on a tirade against the moral atrocity of elite Catholic preps and the Ivys who have turned out so many of the worst of them.
There were other "what abouts" none of which answered the problem of what Boudin called "government by a few conservative men" on the Supreme Court - as I noted even one of those conservative men, Nathan Clifford predicted the atrocity of the Court dominating the People and even the Congress - it does so whenever it overturns a duly enacted federal law.
As the history of the 14th Amendment under Court "interpretation" proves, even the Constitution, itself, is not safe from the de facto power the Court gives itself to nullify parts of it. If they had not done so within the last three years, Trump would not be president we would almost certainly not have gone from being a respected world power to being one of the most hated countries in the world and we would not have gone from the most successful measures to revive the welfare of the People from the Covid-19 mini-depression of all developed countries to being the country which is driving large parts if not the entire global economy into a depression that may make the Great one look not so great by comparison. We would certainly not be at war with Iran with a president who is Putin's bitch boy.
As can be seen in the posts this week, even the "justice" who favored the power before the Constitution, Iredell, had reservations about the kind of use of it that has become routine.
And then there are those state Supreme Court justices and their legal erudition.
I mentioned the status of Women and their ownership of their own bodies in the wake of the Court overturning of Roe v. Wade, which it had whittled down in previous rulings before they did what several of them claimed they wouldn't do during their confirmation - all of them lied through their teeth during their confirmations and every single person in the room and almost all of those listening to the festival of mendacity that Senate confirmation hearings have become knew it too - lying like Todd Blanche did and the Republican-fascists will confirm him, anyway, as they did Kavanaugh.
In that case the Roberts court fascists overturned a Supreme Court decision that overturned state laws in favor of the fact that either you own your own body or every goddamned right mentioned in the goddamned "Bill of Rights" means not a damned thing - EXACTLY THE SAME THING AT STAKE IN THE CONSTITUTION AND THE COURT PERMITTING SLAVERY.
In fact they didn't just overturn the ruling made by the Court by 7-2 in 1973, they overturned every court that upheld the Roe decision. While my argument here doesn't deal directly with the matter of the Court overturning the rulings of previous courts - even those that acknowledge the right of half of the population to the ownership of their own bodies A TINY LITTLE MATTER LEFT OUT OF THE ORIGINAL CONSTITUTION BY THE SLAVE-HOLDERS, SLAVE TRADERS AND PROFITEERS FROM SLAVERY WHO WERE, IN FACT THE FRAMERS, for obvious reasons. It would have cost them their enormous wealth - and America's slavers were some of the wealthiest in the world - and they might have had to earn an honest living from their own labor.
But the matter of a Supreme Court overruling a previous Court's decision, especially those claimed to have been made on the basis of the Courts interpretation of the Constitution - and in the large majority of cases on either a clearly ideological basis or in the Courts and their patrons' political and financial interests, though neither Roe nor Brown v Board would have, in context fit into those categories, all of that brings up the issue of the validity of the Court being able to accurately discern the actual meaning of the Constitution in any reliable way.
I might consider that the thinking of Ketanji Brown Jackson or Sonia Sotomayor to be up to the standards of the majority on the court in 1973, I hear Harry Litman say that he has great regard for the writing ability of Elena Kagan though I often don't think her thinking matches that, there isn't anyone else on this Court who is a first-rate thinker, they certainly aren't masters of rationation or logic. As the Republican-fascists, the Federalist fascist Society, the billionaires and millionaires who have funded the effort have, as Sheldon Whitehouse said, "captured the court" the level of intelligence on the Court has certainly gone down, considerably. John Roberts is about as banal a thinker as has been on the court and he's certainly not as bad as Alito, Thomas or Kavanaugh.
What pretense is there that they were able to read the Constitution any nor insightfully or, FAR MORE IMPORTANTLY, HONSTELY than the majority in Roe? You will remember that Alito and those who concurred with him had to resort to late medieval English judges who sentenced Women to burning as witches in coming up with his Constitutional fiction to overturn the case. I would really love to know what the framers, who no doubt had a deep sense of disdain and shame for the Salem witch trials and the execution of and imprisonment that resulted from it, what those men of the "enlightenment" would make of Alito's (or, more likely his Ivy League law clerks') citation of such a judge in such a case. Abortion was legal in the states at the time of the framing of the Constitution, by the way.
If the Constitutional reading of the 7 "justices" who decided Roe, if the many more "justices" who confirmed and maintained it read the Constitution wrong, only to have the decidedly inferior minds of the Roberts Court find the "right" reading of it, doesn't that, in itself, prove that there is something extremely dangerous in allowing them to maintain that THAT is their proper role? And what is dangerous in them overturning a Court decision - and those overturnings have in some somewhat rarer instances expanded equality and freedom and the public good, just not very often - then it's far more dangerous to allow them to take the extra-Constitutional steps of nullifying duly passed laws made by the Congress and president.
I absolutely and entirely reject that the members of the Supreme Court have a single "right" to do anything that the most humble and wretched person on Earth, American or not, has. Holding public office isn't a right, it doesn't create rights, it imposes responsibilities freely taken on with the responsibility to The People that they do what the agreed to do. The faster we get over the stupider uses of the word "rights" which have led to all kinds of evils, the better. It is an outrage that any Supreme Court "justice" or president or Senator or member of the House believes that they have some enhanced status in terms of "rights" than the most common of common People any where on Earth. Any respect that an office holder is considered to be "due" is misplaced. It is a violation of the actual foundation of democracy to do so, that foundation is equality not some notion of "liberty." Freedom only comes through equality and knowing the truth. And with freedom comes responsibilities, as well.
READING THROUGH WHAT he wrote you have to always remember that the already awful result of the Supreme Court nullifying federal laws that led Louis Boudin to devoting his considerable scholarly abilities to researching the power the court had given itself to do that in the Marbury decision has only become more extreme in the more than a century since then.
In his great two volume work of the same title, he updated his case to the early 1930s before Roosevelt became president, when the country was facing the Great Depression and a Court which was hell bent on preventing those measures by the federal government which were essential to not only ending it but to even giving effective relief to the misery of the large majority of Americans. Franklin Roosevelt faced down the court for several crucial years before he was able to swing the court to one that faced reality, something which, as usual, happens only only death or the rare retirement while a "justice"still has most of their marbles - and a lot of them never had many to start with - made possible. Life terms for judges and "justices" is an idiotic 18th century holdover from back when lives were shorter and they stupidly depended on nature to take care of things like that. It should be changed when the inevitable and drastic reform of the courts and especially the Supreme Court can no longer be put off.
The quote that I took as the title for this post from Boudin's text is from the associate "justice" of the Supreme Court Nathan Clifford who was a Maine man who had the most varied career in public service of any Supreme Court "justice" in its history, serving in many state as well as federal positions, having a private practice, etc.
It has to be noted that Clifford was certainly not anything like a progressive, he was more of a paleo-conservative, certainly not a champion of the rights of slaves or of the supposedly newly freed slaves (he was a Buchanan appointee). He held to a rigid interpretation of the Constitution as written, which is a problem in itself even if he did correctly identify one of the problems with the power that Marshall invented but was not ether explicitly or implicitly a part of the written Constitution.
His feared "judicial despotism" is the the reality that Black Americans live under after the Roberts Court nullified the Voting Rights Act, it is certainly one, effectively, for Women* whose bodies are left by the Court to the whims of Republican-fascist state legislators, state courts, lower courts and the Supreme Court, itself. That the "justices" on the Roberts Court have, in fact, made us a country of one right-wing president and their corrupt fellow Republicans is indisputable.
it is increasingly a reality for white males.
He is also a "justice" who, for political reasons, refused to retire from the bench even after his advancing senility and a severe stroke rendered him, in the words of his fellow "justice, Samuel Miller " a babbling idiot." Miller opined at the time, commenting on the mental unfitness of the lone Democrat on the Court that anyone over the age of 70 was unfit to undertake the workload of a United States supreme court "justice, " at that time he advocated an age of retirement from the Court. Though, as you might have guessed, when it came to "justice" Miller, he didn't voluntarily retire at that age, himself, he stayed on till death took him at 74.
In part four of his argument about the dangers and invalid status of the Marbury power, Louis Boudin talked about how that power had expanded as the Supreme Court and the "public men," no doubt many of them lawyers who had a decided interest in not rocking the boat over it, became accustomed to its use once Taney et al had broken the previous embargo on its significant use.
IV
A change no less striking has taken place, since the power of courts to annul legislation has been more freely exercised and has come to be generally recognized, in the attitude of our judges and in the opinions or our public men in regard to the question: How far shall this power extend?
Even after the decision in the Dred Scott case the existence of this power was not admitted by our leading statesmen except in a very limited sense. Lincoln denied its binding force in our modern sense, that is, as a rule of political conduct.
And even those who admitted it as a rule of political conduct did not by any means, until very recent times, give it the broad scope which it now possesses.
The older and more conservative point of view is clearly stated in the opinions of the very judges who asserted and used this power in its earlier stages of development.
Judge Iredell was one of the first members of the United States Supreme Court to claim this power. He advocated it even before the adoption of the federal Constitution; for he was leading counsel in the case of Bayard v. Singleton, noticed above, on the side which urged the right of the North Carolina state court to declare unconstitutional the state law at that time under review.
As an associate justice of the United States Supreme Court he asserted this power before the decision in Marbury v. Madison, as we have seen in our examination of the case of Calder v. Bull. We have also seen that he regarded this power as of an "awful nature," never to be resorted to except in a clear and urgent case.
A further examination of his opinion will show that he considered the power to be limited to those cases in which the legislative enactment violated the very letter of an express prohibition of the Constitution.
He emphatically repudiated, as we have seen, the theory that an act passed by Congress or by a state legislature, within the general scope of its constitutional power, could be pronounced to be void merely because it was deemed by the court to be contrary to the principles of natural justice.
He based this conclusion on the assumption that each and every legislature was "possessed of an equal right of opinion" with any court as to what the principles of natural justice were.
The hundred-odd years which have passed since Justice Iredell wrote this opinion have certainly wrought havoc with his antiquated ideas regarding the competence of legislatures and the functions of courts.
More than half a century later, at a time when the judicial power had firmly established itself and on the eve of its great coup in the Dred Scott case, the utterances of the courts regarding the limitations upon their authority remained the same.
In 1853 the judges of the Pennsylvania supreme court wrote a series of notable opinions on this subject, in the case of Sharpless v. The Mayor. The leading opinion was written by Chief Justice Jeremiah S. Black, one of the greatest constitutional lawyers of his generation, and soon afterwards successively attorney-general and secretary of state of the United States. The decision rendered in this case and the opinions upon which it is based are very interesting reading. They give much food for thought to the constitutional lawyer of to-day and to the student of our existing political institutions. Among the points decided in the case are the following:
"In determining whether an act of the legislature is constitutional or not, we must look to the body of the constitution itself for reasons. The general principles of justice, liberty and right, not contained or expressed in that instrument, are no proper elements of a judicial decision upon it.
If such an act within the general grant of legislative power, that is, if it be in its character and essence a law, and if it be not forbidden, expressly or impliedly, either by the state or federal constitution, it is valid.
To make it void, it must be clearly not an exercise of legislative authority, or else be forbidden so plainly, as to leave the case free from all doubt."
When I raised this issue a number of years ago, one of my online friends, a lawyer, responded that it might be a good idea to restrict the Supreme Court to only having that power when ALL of the "justices" agreed as to its unconstitutionality might be a good idea short of nullifying Marbury. I would wonder how often there has been such unanimity - without the various explanations in concurrences, some of which deny parts of the majority decision - on the Supreme Court and what could any such cases of unanimity tell us in terms of what dangers they potentially hold. It is the business of lawyers to find loopholes and openings and permissions for them or their clients to do whatever they want - as I pointed out in an earlier post in this series. I'm not sure that even with that very reasonable seeming provision wouldn't, in time and under lawyer, judge and "justice" usage expand to where we are now as, in fact, Boudin said was already happening with the Marbury-Dred Scott power in his time.
In their opinions the judges specifically state that by "forbidden expressly or impliedly" they mean just what they say; that there must be something in the Constitution, state or federal, which shows plainly, so as to leave no room for any doubt, that the Constitution intends to forbid just such a law as that under consideration, and that such general prohibitions as that "no person shall be deprived of life, liberty or property without due process of law" do not furnish a sufficient basis for declaring a legislative act unconstitutional, unless, indeed the act be such as cannot be properly called a law or an act of legislation at all.
Chief Justice Black said in his opinion:
"We are urged to hold that a law, though not prohibitied, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare unconstitutional if it be wrong and unjust.
But we cannot do this
. . . I am thoroughly convinced that the words of the constitution furnish the only test to determine the validity of a statute, and that all arguments based on general principles outside of the constitution must be addressed to the people, and not to us.
A proposition which results so plainly as this does, from the reason of the thing, can scarcely need the aid of authority . . . . But, if the doctrine I am denying could be allowed to prevail, it would decide this case in favor of the plaintiffs without looking into the constitution at all; for it must be admitted that such measures cannot be sustained on principles of moral justice or propriety. . . There is another rule which must govern us in cases like this; namely that we can declare an act of Assembly void only when it violates the constitution, clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in our minds."
And Mr. Justice Knox, in a concurring opinion said:
"The presumption is that the legislature has judged correctly of its own constitutional power, and the contrary must be clearly demonstrated before a coordinate branch of the government can be called upon to interfere between the people and their immediate representatives.
In ascertaining whether there has been this clear usurpation by the law-making power, I agree with the Chief Justice and Mr. Justice Woodward, that the tests to be applied are:
1. Is the act in the nature of a legislative power?
2. Does the constitution expressly, or by necessary implication, forbid the exercise of such a power?. . .
I am aware that under this rule may be passed which will, in the minds of may persons, be contrary to natural justice, and subversive to the just rights of the people. The remedy is to be found in further constitutional restrictions upon legislation, not in restraints imposed by the judiciary. The limit of the power of the people's representatives should be written upon the pages of the constitution, rather than remain in the breasts of our judges.
There is a great danger in recognizing the existence of a power in the judiciary to annul legislative action, without some fixed rule by with such a power is measured. Our opinions are so diversified and varied, that what to one mind may seem clearly right and proper, to another will appear to be fraught with imminent danger. If we have not a certain standard by which to test the constitutionality of legislative enactments, if each judge is to be governed by his own convictions of what is right or otherwise, I fear that restraints upon judicial, rather than on legislative action, will be demanded by the people, ever jealous of the accumulation of power in the hands of he few."
I almost took this last sentence as the title of this post because it is my fervent hope that "retraints upon judicial . . . action, will be demanded by the people," UNDER THE SUPREME COURT'S ACCUMULATION OF POWER AND USING IT TO ALLOW OLIGARCHS TO AMASS POWER INTO THEIR FEW HANDS AND SO DESTROY EQUALITY, DEMOCRACY AND EVEN A DE FACTO REPUBLICAN FORM OF GOVERNMENT.
And only a generation ago Justice Clifford of the United States Supreme Court said:
"Courts cannot nullify an act of the state legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism."
Having commented on Clifford's statement above, I'll break here because this post is getting longer than a blog post can be and have any realistic expectation that it will be read.
