Just How Irrational The Supreme Court's Ruling Power Is Can Be Seen In The Dishonesty Of Its Origin

 It should be said, however, that Marshall no longer 'idolized democracy,' as he declared he did when as a young man he addressed the Virginia Convention in 1788.  On the contrary, he had come to distrust popular rule as much as did most Federalists.  Albert J. Beverage  The Life of John Marshall, Volume 3

RECENTLY FORMER SUPREME COURT "justice" Stephen Bryer was asked if there was any Supreme Court precedent that was safe from the Roberts-Alito court, Bryer quipped "Marbury v Madison?"  Which is, of course, one of the unquestionable cases listed by Amy Coney Barrett when she was asked which cases were beyond being overturned by the Court, though she listed others that I have no doubt wouldn't be safe.  She as several of the others in the majority on the Dobbs decision blatantly lied about Roe v Wade being safe as it was a well settled issue of the court.  And everyone knew each one of them lied as the lied it, including Susan Collins.

The Supreme Court is not likely to ever give up a power which is found nowhere in the Constitution but which they have successfully grabbed and exercised, increasingly, against the representatives of the voters, which the Roberts Court is exercising on behalf of their majority's party, the Republican-fascists, in order to maintain their power even against the will of a majority of Americans. That power will have to be pried away from them by the democratic branches of the government or by The People, eventually, probably after much bloodshed and a possible but no means certain attempt to actually establish an egalitarian democracy.

John Marshall had been seeking to gain powers not found in the Constitution for the Court for several years by the time he worked a minor case which no one no longer cared about to achieve his ends. He knew that among those we was working against was Thomas Jefferson who was the president in an election which ended the electoral power of Marshall's Federalists in elective office and James Madison, one of the chief authors of the Constitution he had to claim to be acting under. Just how outrageous that got can be seen in a pages long quote Louis Boudin gave in his Government by Judiciary from Senator Beverage's biography of John Marshall which made this point about his claim that a part of a previous law passed by the First Congress unconstitutional, one of several extraordinary steps he had to take to gain that power for the court:

No matter which horn of the dilemma Marshall selected, it was hard to see how his views could escape impalement.  He chose neither.  Instead of allowing his cherished purpose of establishing the principle of supervisory power of the Judiciary over legislation to be thus wounded and perhaps fatally injured, he made the decision of this insignificant case about which the applicants themselves no longer cared - the occasion ofr asserting that principle.  And he did assert that principle - asserted it so impressively that for more than a century his conclusion has easily withstood repeated assaults upon it, which still continue.

Marshall accomplished his purpose by convincing the Associate Justices of the unconstitutionality of that section of the Ellsworth Judiciary Act of 1789 which expressly conferred upon the Supreme Court the power to issue writs of mandamus and prohibition, and in persuading them to allow him to announce that conclusion as the opinion of the court.  When we consider that, while all of the Justices agreed with Marshall that the provision of the Ellsworth Judiciary Law requiring them to sit as circuit justices was unconstitutional, and yet refused to act upon the belief as Marshall wanted them to act,* we can realize the measure of his triumph in inducing the same men to hold unconstitutional another provision of the same act - a provision, too, even less open to objection than the one they had sustained.

The Theory of the Chief Justice that Section 13 of the old Judiciary Law was unconstitutional was absolutely new, and it was as daring as it was novel.  It was the only original ideal that Marshall contributed to the entire controversy.  Nobody ever questioned the validity of that section of the statute which Marshall now challenged.  Ellsworth, who preceded Marshall as Chief Justice, had drawn the act when he was Senator in the First Congress;  he was one of the greatest lawyers of his time and an influential member of the Constitutional Convention.
 

One of Marshall's associates on the Supreme Bench at that very moment, William Paterson, had also been, with Ellsworth a member of the Senate Committee that reported the Judiciary act of 1789, and he, too, had been a member of the Constitutional Convention.  Senators Gouverneur Morris of New  York, William S. Johnson of Connecticut, Robert Morris of Pennsylvania, William Few of Georgia, George Read and Richard Bassett of Delaware, and Caleb Strong of Massachusetts supported the Ellsworth Law when the Senate passed it;  and in the House James Madison and George Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of Connecticut heartily favored and voted for the act.  Most of these men were thorough lawyers and every one of them also helped draft the National Constitution.  Here were twelve men, many of them highly learned in the law, makers of the Constitution, draftsmen or advocates and supporters of the Ellsworth Judiciary Act of 1789, not one of whom had ever dreamed that an important section of the law was unconstitutional.  

Furthermore from the organization of the Supreme Court to that moment, the bench and bar had accepted it, and the Justices of the Supreme Court, sitting with National district judges, had recognized its authority when called upon to take action in a particular controversy brought directly under it.  The Supreme Court itself had held that it had jurisdiction, under Section 13, to issue a mandamus in a proper case, and had granted a writ of prohibition by authority of the same section.  In two other cases this section had come before the Supreme Court, and no one had even intimated that it was unconstitutional. . . .

The outrageousness of the claim by Marshall and his majority in claiming that unconstitutional power for the court, on the basis of the Constitution IN CLEAR OPPOSITION TO THE DEMONSTRABLE DISAGREEMENT OF SUCH A LARGE NUMBER OF THE DRAFTERS OF THE CONSTITUTION is impossible to overstate.  The fact that he had run into the very Act when he tried to call his fellow justices to mutiny against the Congress a couple of years before IN WHICH THEY CITE THE PROVENANCE OF THE ACT AS REQUIRING THEM TO FOLLOW IT only strengthens the point, also from slightly earlier Beverage's biography.

When the Republicans [Jefferson's party, not to be confused with what has become the Republican-fascists] repealed the Federalist Judiciary Act of 1801, Marshall had actually proposed to his associates upon the Supreme Bench that they refuse to sit as circuit judges, and 'risk the consequences.'  By the Constitution, he said, they were Judges of the Supreme Court only;  their commissions proved that they were appointed solely to those offices;  the section requiring them to sit in inferior courts was unconstitutional.  The other members of the Supreme Court, however, had not the courage to adopt the heroic course Marshall recommended.  They agreed that his views were sound, but insisted that, because the Ellsworth Judiciary Act had been acquiesced in since the adoption of the Constitution, the validity of the act must now be considered as established.  So Marshall reluctantly abandoned his bold plan, and in the autumn of 1802 held court at Richmond as circuit Judge.  To the end of his life, however, he held firmly to the opinion that in so far as the  Republican Judiciary Repeal Act of 1802 deprived National judges of their offices and salaries, that legislation was unconstitutional.

It should be noted that Marshall's opposition to a situation that had been in place since the First Congress seems to have begun after the Jeffersonian revolution which toppled Federalist power on the national level.  I would be curious to find out what he had to say on this when it was Federalists who operated under the law that came back into effect after the repeal of the last-minute Federalist Judiciary Act of 1801, put into place, certainly, so that the Federalist dominated Federal judiciary could rule by fiat against the elected branches of the government, elected by The People who turned out Federalists from power.  Certainly that will feel familiar to those of us who have watched the Rehnquist and Roberts Court during the terms of Democratic presidents and Democratic congresses. 

That the facts of the issue proves the Constitution as it was even under its early years of operation was quite a mess and that the very idea of "originalists" that the power they exercise to destroy things like the Voting Rights Act, to reimpose Jim Crow law in Republican-fascist controlled states comes from the Constitution is so absurd on its face that I can't begin to imagine how honest people, with this history available to them, could go along with the power grab.  Why we still will be putting up with it as the Roberts Court re-legalizes Jim Crow as they have nationalized Women's bodies and lives doesn't speak well for the conventional wisdom in such matters.

Marbury vs. Madison has to be gotten rid of, we have to have a Supreme Court more like those of other functioning democracies, none of which have that self-created power and they seem to get by without devolving into the kind of despotism we have certainly had in many regions of the country for almost our entire history.   Though as most of that history is invented, promoted and imposed from above, it's not on The People who have been lied into believing in the sanctity of the Founders generation or the integrity of the Supreme Court.

Note: Don't think I have any high regard for Oliver Ellsworth, among the worst of the Federalists from the start.   I'll have more to say about him in a future post.  You can consider these posts as having the goal of attacking the cult of the founders, the founder's fetish that rules our myth-based popular conception of the Constitution and the Supreme Court and all that stuff.