who united in their own persons the legislative and judiciary powers, which no monarch in Europe enjoys, and which would be more despotic than the Roman decemvirate, and equally insufferable

Louis Boudin's review of the cases cited by "justice" Lurton to support government by judiciary continues:

Trevett v. Weeden was the first of these cases in which it may fitly be said that a law was declared unconstitutional.  The legislature of Rhode Island tried to force a paper currency upon an unwilling people.  It made the refusal to make paper money in stead of specie a criminal offense and abolished trial by jury in this class of cases.  It was the abolition of trial by jury that was declared unconstitutional.

The legislature immediately passed a resolution condemning the decision and cited the judges to appear before its bar and answer for their conduct.  The judges obeyed the summons but justified their conduct by claiming independence.  A motion was made to remove them from office;  but, as their term of office was soon to expire, the legislature, which had the appointment of their successors, let them serve out their term, and then dropped them all except one, and appointed others who did not claim any such powers for the judiciary.

Bayard v. Singleton, which was decided in North Carolina while the Philadelphia Constitutional Convention was in session, was also a case where the legislature attempted to force upon an unwilling people an unjust law depriving those whom it affected of a jury trial. In this case, also, the law abolishing trial by jury was declared unconstitutional.  And in this case also the decision called forth a storm of excitement and protest.  One of its severest critics was Richard D. Spraight, one of the framers of the Constitution, and afterwards governor of his state.  In his denunciation of this decision he said:

"I do not pretend to vindicate the law which has been the subject of controversy;  it is immaterial what law they have declared void;  it is their usurpation of the authority to do it  that I complain of, as I do positively deny that they have any such power. . . It would have been absurd,  and contrary to the practice of all the world, had the constitution vested such power in them, as would have operated as an absolute negative on the proceedings of the legislature,  which no judiciary ought ever to possess, and the state, instead of being governed by the representatives in general assembly would be subject to the will of three individuals, who united in their own persons the legislative and judiciary powers,  which no monarch in Europe enjoys,  and which would be more despotic than the Roman decemvirate,  and equally insufferable." (1)

Such were the state "precedents,"(2) and such was the temper of the people at the time the Philadelphia Convention met to frame the United States Constitution.  Small wonder that Chief Justice Marshall did not refer in his decision in Marbury v. Madison to these "precedents."  He was too near in point of time to this "body of opinion" to hazard citing it in support of his contention without considerable damage to his reputation .  

1. Coxe, Judicial Power, p. 252

2. There is another case earlier than Commonwealth v. Caton,  which is not mentioned by Professor thayer or Judge Lurton,  but which seems in point.  The text of the decision is not preserved,  but its character seems well attested. In Holmes v. Walton (New Jersey Supreme Court, 1780;  American Historical Review, vol iv, pp. 456 et seq.), a state law making certain cases triable by a jury of six was set aside,  apparently because in conflicted with the state constitution.  This decision aroused popular protests similar to those noted above in the other cases: complaints "poured in upon the Assembly."  The lower house attempted to confirm the law;  but the Council opposed this action, and the matter was compromised.

The footnote which continues to the next page of the journal concludes the pre-Constitutional history of such "precedents."

For the sake of making our review compete,  it may be said that in a letter from John B. Cutting to Thomas Jefferson,  dated London, July 11, 1788, it is stated that a law of Massachusetts had been pronounced unconstitutional by the supreme court of that state, and that it had been repealed at the next session of the legislature (Massachusetts Historical Society, Proceedings,  1903, second series, vol. xvii, p. 507.  Of this case there is no record nor is there any other mention.

The defender of government by judiciary will, no doubt, point to the outrageousness of those colonial era legislatures abolishing a right to trial by jury in some instances as a reason to keep the even more outrageous Dred Scott decision invention of the Supreme Court nullifying laws passed by Congress and signed into law by the President (or allowed to become law without their signature).  The legislatures doing such terrible things were removable by the voters and, as can be seen, the judges in the cases cited had limited terms.  The present day U. S. Supreme Court are neither removable by voters nor do they hold office for fixed terms.  Richard Spraight's comparisons of what such a government by judiciary would produce are far more apt today than when he made them.  I would go into the present Court's war against the rights of people to civil process, the rights of appeal, the rights of those damaged by corporations and workers to legal processes instead of the corporate favoring arbitration process, etc. to prove that such deprivations are not necessarily an outrageous practice of legislatures.  I don't think the elevation of the shadow docket to a virtual fourth-branch by the current and previous court is unrelated to that.

What is most notable in Spraight's statement is that even something he obviously saw as wrong, the deprivation in specific circumstances of  the right to a trial by jury, was minor compared to the danger of judges taking on the role of the legislature in nullifying laws.  History has proven him to be ever so right in that, he should be remembered for that if nothing else.

As mentioned yesterday, the use of the claims of the judicial historian Thayer by "justice" Lurton proves either or both the inadequacy of their scholarship in amassing allegedly supporting evidence for their beloved power of judicial nullification of duly enacted federal law in the United States by citing colonial era cases that prove the opposite, or/and, their basic dishonesty.  From what I've read of Horace Lurton since last Wednesday I have no faith in his competence nor in his honesty.  His appointment by first Grover Cleveland and then Howard Taft do nothing for my expectation he was ever any better than I presently believe him to have been.  He would appear to have been a short-termed, minor associate member of that Court.

And such is the shoddy, dishonest practice of so much of what is claimed in such matters under the culture of the legal profession in the United States for which I can say if I were a teacher and had such claims made in a paper, I'd fail the student and if they repeated it, I would fail them for the class suggesting they take instruction in basic standards of scholastic integrity.  I strongly suspect that such claims were made by both the historian and the Supreme Court "justice" because in the ink on paper days nobody but a diligent scholar such as Louis Boudin obviously was, would fact-check them.  What they said would be taken by most people on the faith in the alleged authority of them. I've reviewed a number of instances when the widely held, common-received-wisdom of the college-credentialed, when tested, proves to be about as flimsy and often just as false.  That is still the case even when access online to such materials is readily available with the utmost convenience and with the fastest of retrieval processes.  I think it is on such, first, inconvenience and now such laziness that such myths as surround the Supreme Court's government by judiciary are supported. You can count on today's journalists to, as it said in the old movie, print the legend.

As can be seen in one of the cases that Lurton cites to support his lie that the practice of Supreme Courts nullifying duly enacted laws was in line with the Constitution is impressively contradicted by the words of one of the fabled founders who was a very strong opponent of such judicial power in the harshest of terms.  I'll repeat that quote because what he predicted would come of it is the road that the Roberts-Alito court has us on right now, indeed, we have almost arrived.

It would have been absurd,  and contrary to the practice of all the world, had the constitution vested such power in them, as would have operated as an absolute negative on the proceedings of the legislature,  which no judiciary ought ever to possess, and the state, instead of being governed by the representatives in general assembly would be subject to the will of three individuals, who united in their own persons the legislative and judiciary powers,  which no monarch in Europe enjoys,  and which would be more despotic than the Roman decemvirate,  and equally insufferable.
 
If you think that

- the neo-Dred Scott rulings sending the United States back to 1950s era American apartheid in nullifying the Voting Rights Act,

- the appalling nullification of the  aptly named Supreme Court ruling of Dobb v. Jackson Women's Health, sending us back to the days of women being forced to maintain a dying fetus in their uterus until their health and life is endangered before it is removed, of being forced to endure an induced labor so their body can expel it without a far safer surgical abortion, of forcing a 10-year-old rape victim to carry their rapists fetus to term, endangering their own life, restoring the practices of self-induced abortions by folk remedy, by the most dangerous of sleazy black market abortion in terrible conditions, AND NOW STATES UNDER REPUBLICAN-FASCIST RULE PUTTING RESTRICTIONS ON THE TRAVEL OF WOMEN WHO ARE PREGNANT!

- the Supreme Court supporting and enabling the mass slaughter of Americans by automatic rifles, including that of the youngest of school children and people going about their daily business in any public place,

does not reproduce what Richard Spraight - I WILL REMIND YOU, ONE OF THE VERY FOUNDERS WHO DEBATED AND WROTE THE CONSTITUTION AND APPROVED IT - predicted the result of that judicial power would be in specific and contemporary terms then you would have to be as stupid and/or dishonest as Mr. "justice" Lurton was or of just about any Supreme Court "justice" or legal hack or pious toned NPR or PBS or network Supreme Court correspondent is IN THE FACE OF THE MOST DEADLY SERIOUS AND NUMEROUS OF EXAMPLES TO THE CONTRARY.  

The Supreme Court's actual history as opposed to the amber filtered romantic bullshit that it is allegedly told in is one of utter sleaziness in most years and of often quite foolish idealism in much of the rare and short intervals of less sleaziness such as during the Warren years and, I would be surprised to say that now when I wouldn't have then, the relatively less sleazy years of the Burger court.  

It has gotten steadily worse now as it was for most of its history when it upheld some of our worst shames and scandals, starting with slavery, something which, as I've pointed out here, the historian Paul Finkelman has demonstrated even the legendary John Marshall both supported fully even as he, himself, was enhancing his own vast wealth in his Supreme Court rulings.  Such is the integrity of that body in reality instead of the high school American History textbook lies.  We are in one of the darkest periods of its history, right now, with three Trump "justices" joining three other Bush I and II appointees, most of them the product of the millionaire-billionaire Federalist fascist Society judge mill that intended to corrupt the judiciary, quite openly.  I will point out that five of the six are products of the Electoral College elevating the loser of the popular vote, two of them in the utter sleaziness of the Jeb Bush governorship of Florida and the All-Republican majority of the Rehnquist Supreme Court choosing his brother as president.  Two Republicans even then, opposing that abomination.

The Supreme Court today is a bought and paid for branch of government, due in no little part to previous "First Amendment" rulings of the Supreme Court which include a. making money equal to speech, thus giving those millionaires and billionaires millions and billions of times more of it than the common citizens have, b. freeing that money to lie with bought TV internet and radio time, Republican-fascist politicians into office.  

There was a time, about fifty years ago, when even I would not automatically append "fascist" to the Republican Party but that time is long gone under this era of such Supreme Court nullification of things like the campaign finance laws passed by Congress to save us from another Nixon.  Once upon a time, there were even powerful members of the Republican Party who, having been veterans of the WWII era fight against fascism would vote to clean up American politics. That era of the Republican Party is well and truly dead. I doubt very much if either Lynne Cheney or Adam Kinzinger would vote for such measures today.  Susan Collins would find some "concern" to not support them.

I will note that some of the members of the Court who approved the earliest of those awful decisions were appointed by Democratic Presidents, such is the wisdom of such government by Courts. I take that as support for Benjamin Franklin's observation that a government by those who were held to be wisest would be a very foolish thing.  
 
Since then we have had the now covered-up crime spree that the Reagan Administration was, the Bush I administration in which the President had to pardon many of his co-conspirators because George H.W. Bush didn't trust them not to throw him under the bus to save themselves from jail time.  We have had the Brooks Bros. Putsch-FOX-Jeb Bush - Rehnquist Court disaster of the regime of his son George W. Bush including the warned of in advance 9-11, two disastrous wars, one clearly sold on lies, the financial disaster of 2008. And then we have had the Trump fiasco, his crime spree which was more blatant and more concentrated than the Reagan one which he tried to continue by insurrection and an attack by his fascist supporters on the Capitol as the absurd Electoral College process was gone through. And which is this moment an ongoing danger to the Constitutional order as the wheels of "justice" move with all of the speed of near absolute stasis.  The practice now is to sweep the previous holder of "most corrupt administration by convicted members" Reagan Administration under the rug because what followed was so much worse and worse still is promised by such Republican-fascists as the likely criminal Jim Jordan.

Clearly, the promised era of freedom and brotherhood and equality and secure democracy that the ACLU used to promise when asking us to shell out to finance its Supreme Court amicus scribbling has not happened.  As such "freedoms" as to lie in the mass media and to thus buy elections has grown, so has the crime of the oligarchs, their bought and paid for politicians and, now, Supreme Court and so has the danger to equality and democracy.  The Supreme Court and its self-created power to nullify laws passed by a bi-partisan Congress in the wake of the Nixon sandals and others is at the very center of the rot in America.  It will ever be thus until that self-created power to nullify laws is destroyed in no uncertain terms and it will certainly never be done by either the next-to-impossible and eminently stoppable amendment process nor by a ruling of the very Court which gave itself that privilege in one of the worst rulings it ever made, the Dred Scott decision.  I will remind you that much of the ACLU practice that has foolishly, stupidly helped get us here today is as dependent on that self-claimed  power of the Supreme Court as the worst billionaire enhancing, corruption-enabling, racist, misogynistic. deadly rulings of that Court. And, as history has shown, it is one of the worst things for even would-be reformers to depend on in making law or nullifying it.  The wisdom and honesty of nine often quite corrupt lifetime political appointees is far less of a good bet than the Congress or even President turns out to be. 

So much of this flows, not from the mocked and denigrated political side of the government but from the judiciary under this Supreme Court rule.  Really, what did you expect?  You either believe in government of The People, by The People and for The People will usually prove to be better than government by the fiat of a group of potentates or you don't.  In so many cases, our elites clearly don't really believe it.  The Taney Court obviously didn't, most of those in the subsequent one hundred sixty-five years haven't.  The one we have now is destroying any hope of egalitarian democracy through attacking voting rights, especially by People of Color and others who tend to not vote for their party. They are as corrupt a bunch as we have in our history.  They may help wipe the Trumpery off of the Republican-party but you can count on them to get far worse in office.  They did in 2000 and it was one of the worst presidential regimes we have ever had.

Note:  I will not call any presidency that was not the product of a majority of the votes an administration, it is a regime.  I used to be less polite, I called the Bush II years a junta for quite a while. One imposed on the country by the Supreme Court in league with Jeb Bush's Republican-fascist rule in Florida putting his brother in office.  Such sleaze as would make you call a third world country a junta was done here by that Court.