". . . 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 upon legislative action, will be demanded by the people, ever jealous of the accumulation of power in the hands of a few."

If you are wondering how much longer this series is going to last,  I'm ending here on page 27 of 34 pages, so a few days more.  If I could manage it, right now, I'd have gone on with the book and there would be hundreds of pages, no doubt the ninety-one years since Boudin turned this outline into a massive book would furnish even more on the subject. 

A lot of, especially, liberals will fret about the fate of much of the civil rights decisions made by the Warren and even Burger Courts and details of other decisions important to the pursit of equality by nullifying state laws that codified segregation, American apartheid and other, such terrors of the past.  My answer to that is that those prior decisions are already lost in the Roberts-Alito, Republican-fascist Court, now lost by ruling or shadow-docket de facto rulings and what few remain, in tatters, are best considered gone, too. The Roberts-Alito Court are in the process of annulling anything good that happened in the 20th century, they'll probably get around to annulling anything positive done subsequently or previously, as well.  They are on track to be the worst Court since Taney and may find ways to outdo that rightly villified Court.

Since the quotes against government by judiciary in this article argue against the dangers of what was used by previous Courts to explain some of their most important equality and civil rights rulings, I need to go into that at length before giving them.  Those rulings, rulings based on things and words not explicitly found in the letter of the Constution but which the subsequent decades and centuries proved were absolutely required for any kind of decent government and life in the United States, a right to privacy certainly one of the most important which is central to issues of such "national emergency" as the outlawing of safe abortion. Something which I would argue was rationally considered so basic to a sense of deceny and honor by the short-sighted founders, that they took it for granted.

And it is an emergency.  NEVER should the recent overturning of Roe be separated from the absolute fact that by outlawing safe, medically administered abortion, they have guaranteed a horrific reality that its replacement is not no-abortions but deadly and dangerous ones as well as deadly and dangerous pregnancies as well as those that no sense of justice nor reasoning would allow any person of any moral sense to insist must never be terminated,

- the 10-year-old rape victim from Ohio who Republican-fascists have lied about,

- the woman whose water broke early in a pregnancy with its state legislature producing horrors,

- the state-mandaited contuned ectopic prgancies other impossible to bring to term pregnancies were required to be continuee UNTIL THE WOMEN'S  HEALTH AND LIVES WERE COMPROMISED and, certainly through prosecutors ideological campaigns of political and professional self-promotion, even those which would certainly be fatal will be prosecuted in some states.

- and untold other horrors.  

That is the reality of what the Roberts-Alito Court did in league with Republican-fascist legislatures, what courts before Roe v. Wade and legislatures dominated by and often exclusively made up of men determined was permitted under the Constitution, decade after decade, generation after generation of maimed, terrorized, dead women under the regime of illegal abortion, which I never remember many later anti-abortion folk doing much of anything to end as it was an epidemic.

Never should it be minimized how little men will notice an emergency that Women experience, or white people will notice an emergency among People of Color, or rich people will notice among the destitute, the poor or even the middle-class. Such an emergency went on in the United States for generations, in full horror before Roe v. Wade was decided. There is nothing to prevent that national non-feasance to not happen again except direct action by those affected by the emergency.   Amy Coney Barrett and Clarence Thomas are as uncaring and unmoved by the consequences for People of Color and, especially in the case of both of them, Women, as Alito or Gorsuch or Kavanaugh, or Roberts. Economic class may explain that, the rich will always be able to get safe abortions without danger of prosecution, no matter what the law says.

The issue of the imperfections of the Constitution (to use an entirely inadequate word) things included in it and not included in it and the virtual impossibility to amend it for acheiveing the most obvious ends of common equal justice - WE CAN'T EVEN GET THE EQUAL RIGHTS AMENDMENT IN IT, FOR PETE'S SAKE! - is behind all of this.  The impossible, cumbersome and, with the permission of the media to lie with impunity, billionaire and millionaire funded lie campaigns, means of amending the Constitution in a 50 state, as opposed to a 13 state nation is another of the problems that has led to exactly what "Mr. Justice Knox" warned of in the extract I used as a title.

The basic and drastic amendment of the Constitution is needed in so many areas that the maintenance of the thing as an object of worshipful veneration which one is prohibited to question in ways that NO religious text or object is venerated, is not sustainable.  Changing it cannot be put off to later ages  or the very thing lauded as providing for our safety, our freedom, our security will be our undoing.  

I think it already is that as the Roberts-Alito Court, Republican-fascist Senatorial manipulation of process, first the Bush II regime then the Trump one are foisted on us by both the Electoral College - with some help from the likes of James Comey and the corporate media- and by the fiat of five "justices" such as those in Bush v. Gore. The thing is thoroughly gamed but it is still an object of unquestionable veneration, as is the extra-Constitutional power which judges and "justices" gave themselves without any legislature of the last decades of the 18th century or any since ratifying.  

There is no such thing as a perfect human creation.  There is no such thing as the best human creation which cannot be corrupted in use and with the inevitable amendments of time, generations and the accretions of habits of thought and action and the commentary on the original that is the bread and butter of judges and "justices" and law scholars.  No two-hundred or even hundred year old constitution is going to escape that anymore than any of the ancient systems of government or law did. If The Law of Moses could degenerate into the latter day corruption of the Kings of Israel and Judea, so will any.  

The United States Constitution, whatever the foresight of those who wrote it may have been, encodes the near impossibility of taking that into account.  Jefferson, of whom I have been so critical in many things, especially in regard to slavery, got it right when he said Constitutions should be redone every few decades.  I don't take that idea lightly, the writing of constitutions and laws is full to the top of dangers, that is as true for such supreme laws as constitutions are supposed to be as it is for any statute passed by a town council or state legislature or the Congress OR BY POPULAR VOTE. Benjamin Franklin's statement about keeping a republic was as prescient as Jefferson's and far more to the point.  If we do not follow the commandment of equality on which any valid modern concept of democracy must rest, to do to others as we would have them to do us, it all rots out.  I would point out that that notion appears nowhere in the Constitution, in fact if it were explicitly held to be the basis of law, clauses in it would be held up in objection by those who habitually hate Abrahamic monotheism and all religion as by those who hate equal justice. I think some of the most popular of Supreme Court rulings have helped those who hate equal justice a lot more than those who do believe that that absolute standard of justice is an absolute law. All pretenses of the civil liberties industry aside.

We are in the national emergencies such foresighted judges and some of our greatest presidents could see coming with that power of Supreme Courts but not only from that.

                                                         IV

A change no less striking has taken place, since the power of the 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 of our public men as regards 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 at its earlier stages of development.

I noted yesterday how we have been habituated to this kind of thing to the extent that even those informed of the problems with it will have a very hard time imagining the law or politics without that Supreme Court power hanging over it or seen as the limiting factor. I am sure that often it is seen or, rather, felt as a limiting factor when legislation is drafted.  The "codification of Roe" that is so breezily talked about is no guarantee that the Roberts-Alito Court or one further ratfucked by Republican-fascists in the Senate and the Federalist fascist Society will let such a codification stand, no doubt Alito's clerks will dig up some other spectral-evidence relying 17th century English judge to base such an overturning on.  

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 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.

You have to wonder what Iredell and the others quoted in this article would say if they could foresee the use by subsequent "justices" of the power they claimed was necessary in the most dire of circumstances.  The extent to which, given the possibility of a legislature doing bad things, judges such as Iredell believed that any more trust could be put in judges and "justices" to do the right thing being behind this notion of this government by judiciary should be considered.  Sometimes that faith will be better based than others, I would certainly put it in the courts than in state legislatures in the Trump election-stealing cases, but there are others when I certainly wouldn't trust them.  I will point out in regard to that, that the elections laws making a vote in the Congress based on the majority of any states delegations producing one vote to solve the puzzle of the failed Electoral College was one of the worst ideas anyone ever had. For anyone who puts their faith in the genius of the "founders" their anti-democratic inclusion of the Electoral College, with its dangerously bizarre and so disastrously ammended features is absolute proof that they put their breeches on one foot at a time, just like we do today.

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 Jermiah 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 that 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 be 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."

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. . .

I have to wonder if the Pennsylvania "justices" may have had some inkling of the direction that legal thinking was going in regard to the massive expansion of Supreme Court power which was coming a few years later with such disastrous results.  I would like to know the pre-Dred Scott scholastic scribbling that might have been going on just as so many of the horrors of the Roberts-Alito Court were the wet-dreams of millionaire and billionaire financed, oligarch-friendly law school scholars and scribblers.  But I am neither competent nor at leisure to make such a document search. I have pointed out above that the very certain defects, deficiencies and distortions of the United States Constitution mean that even the modest dependence on the words of it by even previous "justices" to reign in court power can be used, as certainly, by "justices" for the most malignant of purposes, such as Alito in the overturning of Roe.  I don't think that us depending on either the written text nor on the "penumbras" of meaning flowing from them is fool-proof in the long run.  Look at how the segregationists and white supremacists use the words of The Reverend Martin Luther King jr. to oppose equality and things such as affirmative action which he championed.  Dishonest judges and "justices" like all dishonest people can do the most remarkable things with words and even ideas to turn them on their heads.  Such is the stuff of Supreme Court decisions.  

. . . Chief Justice Black said, in his opinion:

"We are urged to hold that a law, though not prohibited, 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 it 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 acts may be passed which will, in the minds of may persons, be contrary to natural justice, and subversive of 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 great danger in recognizing the existence of a power in the judiciary to annul legislative action, without some fixed rule by which such power is to be 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 upon legislative action, will be demanded by the people, ever jealous of the accumulation of power in the hands of a few."

As subsequent history proved, that power in the hands of fewer than ten unelected, lifetime power-holding "justices" has been fraught with danger and the potential of them doing enormous injustice.  That on rare occasions, it may have produced some good can't reliably make up for that danger. Yet nothing is done under the Constitution to reign them in.  As I said, it will take a democratic, egalitarian President and Congress to do that, I cannot foresee a future Court abandoning that self-created power nor would I depend on the amendment process to be so un-rigged and so-ungamed in the Republican-fascist dominated states to do such a vitally important thing. And even then it will be very dangerous because a future Trump and Republican-fascist, or similar, regime could use that,too.  If a future Constitution could do it, other countries seem to have managed to avoid it when we have not.