I AM OVERLAPPING with the last paragraph of Louis Boudin's introduction to Government by Judiciary I posted last time because it is necessary to understand what follows:
Unfortunately, the official theory does not at all tally with the facts. The actual practice of the courts is to declare any law unconstitutional of which they strongly disapprove, whatever the reason of such disapproval, and quite irrespective of the actual provisions of the Constitution, which very frequently says nothing at all on the subject. So much so, that to declare laws unconstitutional has become a matter of almost daily routine for the judicial machine, and “unconstitutional” has become a “term of art,” as the lawyers call it, a facon de parler, a manner of speaking, the real meaning of which is: “We, the judges, think this is a bad law.” The Constitution has ceased to be the measure of the Judicial Power or any check or limit to the judges' exercise of the power to declare legislation unconstitutional. The Judges have in fact become superior not only to the Legislature but to the Constitution itself, since the Constitution is what the judges say it is.
This is well-known to the elite of the legal profession, who speak of it more or less openly in the professional press. It is also stated occasionally by judges, usually in dissenting opinions, and almost always in technical language not easily understood by the uninitiated. But recently Mr. Justice Holmes has been goaded by his brethren on the Supreme Bench into saying it without circumlocution in plain and forceful English. In a dissenting opinion in the case of Baldunn v. Missouri, (281 U.S. 586), decided on May 26th, 1930, Mr. Justice Holmes, (Justices Brandeis and Stone concurring), said:
“Although this decision hardly can be called a surprise after Farmers' Loan & Trust Co. v. Minnesota, 280 U.S. 204, and Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, and although I stated my views in those cases, still, as the term is not over, I think it legitimate to add one or two reflections to what I have said before. I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred.”
It is the correctness of this statement of the great Associate Justice of the United States Supreme Court, that there is “hardly any limit but the sky” to the power of the Judiciary because the Constitution has ceased to be the measure of “constitutionality,” that these volumes prove, by giving a circumstantial account of the most
important judicial decisions during the past forty years. But these volumes do more than that: They cover the history of more than forty years, and consider more than the “constitutional rights of the States.” They give a fairly complete history of the growth of the Judicial Power, from the first modest assertion of its rights by John Marshall as a necessary “last resort” power—to be resorted to in extreme cases in order not to make the courts participants against their will in legislative defiance of the Constitution to its present position of command, when it can, and does, bid defiance to the people and the Constitution, so that its most distinguished member must repeatedly rise in protest and cry out in anguish that there is “no limit but the sky” to what it may and does do, since the Constitution no longer furnishes any restraint upon its action.
And in the course of this history, it becomes apparent that it is not even a question of “strict” or “liberal” interpretation of the Constitution. With the disappearance of the Constitution as the measure of “constitutionality,” these terms, which played such a great part in old-fashioned histories, have lost their meaning. While judges still divide into “schools,” these schools are not the result of different methods of interpreting the Constitution, but relate to the judges' general outlook upon life, chiefly economic life. Hence we find judges who in one case favored what might be called a “strict construction’* of the Constitution adopting in another case what used to be called a “liberal interpretation” of that document. The alignment —whenever there is an alignment— is seldom, if ever, based upon some particular method of constitutional interpretation; the line of division usually being some economic or political assumption or predilection which determines the judges’ opinion as to what is desirable or undesirable in legislation, or in the power to legislate which ought to be permitted to legislatures.
It is part of the official theory that the right of the courts to declare laws unconstitutional is necessary to the end that this may be a government of laws and not a government of men. Mr. Justice Holmes’ last statement not only proves our government to be one of men, but stamps it as one of irresponsible men. And of that, too, these volumes furnish abundant proof. For the details of our judicial history, recited in these pages, show how decisions of the gravest political consequence, decisions affecting the welfare of the people and the destinies of the country, frequently depended on the will or whim of some one Man, or on the accident of whether this or that Man happened to sit in the seat of power. A careful review of the facts of our history on this showing forces one to the conclusion that the only real difference in this respect between our government and the governments of other civilized countries is that in other countries the Men are accountable to the people, and their decisions subject to be revoked and reversed by the people; while in this country the Men who wield the real power of government are not accountable to the people, and their decisions are irrevocable and irreversible except by themselves. The net result is that we are ruled frequently by dead Men (not, however, the dead “Framers," but generations of dead judges), and always by irresponsible Men,
New York, May, 1931,
The proof of what Boudin said about the Constitution being the plaything of the "justices" on the Supreme Court and, especially, those who manage to be in a working majority might best be shown by an article dealing with the further use of the 14th Amendment against the most basic rights of individuals, written almost 90 years after he wrote his introduction. A use of an entirely different character than what Holmes complained about then.
From: The 14th Amendment Was Meant to Be a Protection Against State Violence
The Supreme Court has betrayed the promise of equal citizenship by allowing police to arrest and kill Americans at will. By David H. Gans
The Fourteenth Amendment effected a fundamental transformation in the constitutional law of policing in two respects. First, it required states to respect basic fundamental rights, including those to life and personal security. State police could not indiscriminately search and seize Black Americans. Second, as Senator Jacob Howard—one of the amendment’s framers—explained in congressional debates, its guarantee of “the equal protection of the laws” demanded “one measure of justice” for all persons, regardless of race. The requirement of equal protection ended “the injustice of subjecting one caste of persons to a code not applicable to another,” according to Howard.
Together, these guarantees sought to put an end to racialized policing practices. In doing so, the Fourteenth Amendment embedded directly in the Constitution the idea that violence against Black people must stop. This reflected the obvious and most basic truth that bodily integrity and security are fundamental to freedom. The Fourteenth Amendment struck at centuries of history that permitted Black bodies to be violated indiscriminately, instead promising personal security to all. Open-ended police power, the framers of the amendment recognized, was a tool of racial oppression and violence. Equal citizenship and true freedom could not be enjoyed without limiting police abuses.
The history of how the amendment came to be reveals that foundational promise. In 1866, Congress formed the Joint Committee on Reconstruction to investigate conditions in the South. Some of the leading lights of the 39th Congress, including Senator Jacob Howard and Representatives John Bingham and Thaddeus Stevens, served on the 15-person bipartisan committee. The committee took testimony from white southerners, Black Americans seeking to enjoy freedom for the first time, and Union officers working in the South, learning firsthand of the gruesome violence and systemic violation of fundamental rights. The committee drafted the Fourteenth Amendment, and its findings and the testimony it heard bore directly on the amendment it wrote.
The committee’s report—released in June 1866 and widely distributed across the country—made the case for securing “the civil rights and privileges of all citizens in all parts of the republic.” If southern states were left to their own devices, Black people “could hardly live in safety” and “acts of cruelty, oppression and murder” would flourish.
Five different kinds of police abuse of power were detailed in the report: home invasions, theft of personal property, indiscriminate and pretextual arrests, wanton state-sponsored racial violence, and a refusal to protect Black people from private violence. In all these ways, the police and the criminal-justice system functioned as a lever to take freedom—and even life itself—from Black people. In vivid, terrible detail, the report cataloged how police officers acted “in respect to violence and ill usage, in every way equal to the old days of slavery”; how they arrested Black Americans as vagrants “simply because they did not have in their pockets certificates of employment from their former owners or other white citizens”; and how the police “go in squads and search houses and seize arms,” fleecing Black people of their possessions.
Police brutality and murder escalated in the summer of 1866, as Congress completed its work on the amendment and the ratification process began. In Memphis, Tennessee, and New Orleans, police officers led bloody massacres that left hundreds of Black people dead and many more badly beaten. These acts of murder and pillage, led by the so-called chosen guardians of the public peace, convinced Americans that the Fourteenth Amendment’s sweeping guarantees of fundamental rights and equal protection were necessary to redress state-sanctioned violence and inequality. As an investigation of the New Orleans massacre concluded, without new protections, Black Americans would continue to be “hunted like wild beasts, and slaughtered without mercy,” and police would continue to murder innocent men and women “with entire impunity from punishment.”
This history has been brushed aside. The Supreme Court has betrayed the Fourteenth Amendment’s promise of equal citizenship by allowing police to stop, seize, arrest, beat, and kill Black Americans at will.
For example, stop-and-frisk policies, first upheld by Earl Warren’s Supreme Court in Terry v. Ohio and repeatedly expanded during the Warren Burger and William Rehnquist Courts, permit the police to subject people of color to arbitrary, degrading, and humiliating intrusions on a regular basis. The upshot is that stop-and-frisk bears a startling resemblance to the enforcement of vagrancy laws that the Fourteenth Amendment took aim at. However, by turning a blind eye to the Fourteenth Amendment, the Court has allowed racial profiling to run amok. The Court consistently ignores the role of race, even as it pervades policing.
As we have seen so often, what begins with a stop often ends in brutal police violence. In fact, as the killings of George Floyd, Eric Garner, Philando Castile, and many others show, police stops for trivial offenses can easily end in death for Black people. But the Supreme Court has never recognized that ending state-sponsored racial police violence was a core purpose of the Fourteenth Amendment. Instead, it measures whether police violence is permissible according to a hazy “reasonableness” standard. By blessing police violence if reasonable—without any showing that it is necessary to respond to an imminent threat—the Court has allowed the vicious cycle of racist police violence to repeat.
The Supreme Court has simply refused to take the Fourteenth Amendment’s text and history seriously. It is a basic idea that we can better understand the meaning of the Constitution by looking at the context of its adoption and the abuses it aimed to eliminate. The Supreme Court does this regularly. But, in a vicious form of selective originalism, the Court has ignored that ending police abuse, including police violence, lies at the core of the Fourteenth Amendment. As police officers continue to destroy innocent lives, the Court has concentrated more and more power in the police.
Liberal or conservative, "constructionist" or whatever, Warren or Berger or Rehnquist, they lie about their consideration of the legislative record, they lie about the text as they put their preferences or predilections or prejudices above the very Constitution they claim to exercise their will on behalf of protecting it and the People that that document is supposed to serve. While the Supreme Court has generally and always been devoted to the protection of surplus wealth of the class to which its members belong or aspire to belong, they have never been exactly careful about protecting the lives of those the power of government routinely kill. As the author points out, especially if those are members of the underclass or racial and ethnic minorities.
They can make the same text mean whatever they want it to mean for whatever occasion they want it to mean that for. Putting themselves, a body of always fewer than 10 without the ability to do what David Gans proved the Congress did in drafting and adopting the 14th amendment, gathering real information about real life that isn't hemmed in by the habits of tidiness that the Supreme Court primly defines reality by. That is how you can get Supreme Court members unbothered by the probability that a state is about to execute what may well be an innocent person on the basis that they missed an arbitrary court deadline for filing paperwork or a "justice" making jokes about painful methods of execution from the bench without their fellow "justices" so much as censuring them.
The Roberts Court is in the process of ripping up a century and more of reforms sending us back to the most florid periods of corruption in our history using the ersatz virtues of legal babble to do it with. They deserve to bring all of the rot that Boudin listed in his massive study of Supreme Court down.
You might want to also consider the letter of Thomas Jefferson to Thomas Richie on December 25, 1820 that the "sappers and miners" phrase comes from:
I ascribe it to the inattention of Congress to it’s duties, to their unwise dissipation & waste of the public contributions. they seemed, some little while ago to be at a loss for objects whereon to throw away the supposed fathomless funds of the treasury. I had feared the result, because I saw among them some of my old fellow laborers, of tried and known principles, yet often in their minorities. I am aware that in one of their most ruinous vagaries the people were themselves betrayed into the same phrensy, with their Representatives. the deficit produced & a heavy tax to supply it will I trust, bring both to their sober senses. but it is not from this branch of government we have most to fear. taxes & short elections will keep them right. the Judiciary of the US. is the subtle corps of sappers & miners constantly working underground to undermine the foundations of our confederated fabric. they are construing our constitution from a coordination of a general and special governments to a general & supreme one alone. this will lay all things at their feet, and they are too well versed in English law to forget the maxim ‘boni judicis est ampliare jurisdictionem.’ we shall see if they are bold enough to maintain the daring stride their 5 lawyers have lately taken.
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