I ALWAYS GET FLACK when I diss the Supreme Court and, at times, when I diss that most bizarrely mistaken, mistakenly nominated champion of "liberalism" of that Court, OlIver Wendell Holmes jr. Given the revelations of the unchecked corruption of the Supreme Court in the lavish emoluments given to "justices" by billionaires and millionaires with business before the court, the overt political campaigns to nominate and get them put on the court supported by those billionaires and millionaires, the emoluments given to them directly and through their wives in the known cases (so far) of Thomas, Alito and Roberts, given their overturning of voting rights and of the rights of Women to the ownership of even their very own bodies, how far can you go in slamming that most corrupt branch of them all through our entire history, the "irresponsible," that is unremovable members of the Supreme Court? I think my slamming of them is far less than they deserve. I think any level of slamming close to the mark will make lawyers and the naively pious piss and moan.
In the hand-wringing about what to do about the corruption of the Supremes that we've heard all year, a rational reaction to the fact that, as even Oliver Wendell Holmes jr said, as given below, "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," the Constitution and the ancient 1790s laws that made things far more dangerous and the practical impossibility of overturning those in light of hard, even dangerous experience of our unelected, life-time appointed Supreme Court which has, in fact, usurped powers never granted to it by the Constitution - as Louis Boudin proved more than ninety years ago - it's clear that the problems that scores and hundreds of Americans have bemoaned throughout the 19th and 20th centuries are absolutely as relevant to us now as they were when Lincoln and Thomas Hart Benton slammed the Dred Scott decision. The Roberts Court is the Taney Court reborn as a Republican-fascist billionaire pimped bastard. When you recall that Sandra Day O'Connor's participation in the Bush v Gore decision of 2000 was, by her own reported words motivated towards the end of making sure it would be a Republican who replaced her, the corruption of the Supreme Court as it is constituted now is far more corrupt than anything Boudin wrote about in his great study Government by Judiciary.
I have gone over large parts of that book here over the past several years, more than once. I have gone over things referenced in it on their own and have found in every case his characterization of it was accurate, even as I feel no need to piously pretend to respect Holmes or Marshall or any of the other "justices". I'm not a lawyer trained in the secular folklore that is the actual character of "Constitutional scholarship" and those who with an eye towards self-interest and benefit practice law and want to get on with the judiciary, right up to the top. I don't have any more regard for the Constitution or the laws derived from it or, especially, the legal decisions derived from it than the resulting justice and honesty produced by those. I don't have any more respect for the Constitution than is warranted by the corruption clearly permitted under it. I especially reject the emetic and fake piety of NPR style Court-reporting, of Broadway or Hollywood costume drama, hazily focused cinematic presentations of "the law," "the Court," the "rule of law and not of men." I think Boudin's introduction to his book is one of the best short expositions of why all of that is at least rightly suspected of being wrong if not intentionally dishonest.
Though he doesn't go nearly as far as I do, perhaps that's a result of being a witness to nearly a century of further developments of judicial and Supreme Court corruption and the disgusting sanctimony that has grown far worse as a shield to any honest criticism and forestalling any effective remedy against that most corrupt branch of our government.
If you're going to refute that claim by going for the typical assignment of that to the Congress - and given the Republican-fascist house we're seeing, that's an understandable temptation - you should remember that in the wake of Watergate when Congress tried to remove the most obvious sources of corruption from our politics and elections, it was the Supreme Court that gave ever increasing license to those who corrupt elections and government through their interpretation of the First Amendment, and it's been both Republican AND SUPPOSEDLY LIBERAL DEMOCRATIC "justices" who have participated in that. I assume the daffy Democratic "justices" who do that believe they are acting in the tradition of Holmes and Brandeis while handing our government to the liars and, in due time, billionaire gangsters foreign and domestic, exactly the people who sponsored the majority on that Court and who furnish them with a lifestyles of the rich and famous bonus for their work on their behalf. The corrupt Federal Government and many of the corrupt state governments in place now are there exactly because of the power the Court gave itself to nullify duly enacted Federal laws. The Court is the source of the dangerous corruption we live with now as it lit the idiotic match that set off the Civil War using and, for the first time significantly expanding the power that John Marshall and his colleagues invented for the Court. And that political corruption results, directly, in the corruption on the Court.
The very corruption allowed in funding elections and in lying with impunity is what produced the Rehnquist and Roberts Courts in their
I would especially note the last sentences in Boudin's introduction:
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.
Americans are kept ignorant of the fact that in other, especially MORE MODERN democracies the Courts don't have those powers that we've been gulled by legalistic masking and long and stupid habit expect are universal. And we are kept ignorant of the facts that the Court having that power does negate the pious slogan of "governments of laws not of men." If there is any evidence you need of that, the Roberts court has given it in bushels and will probably soon produce more of it. Overturning Roe, the gutting of the Voting Rights Act, the depravity of Alito and Thomas ruling for those who give them among the most extravagant emoluments ever given to corrupt officials.
By Way of Introduction
In a sense it may be said that it is the purpose of the present work to prove one statement made by Mr. Justice Oliver Wendell Holmes and to disprove another, - although both of these statements were made after the present work was practically finished and at the time of its commencement the writer had no expectation that Judge Holmes would make either of them.
The earlier of these statements- the one the present writer has endeavored to disprove - was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, (275 U.S. 142), decided November 21st, 1927. It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph. Says Judge Holmes:
"Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty of this court is called on to perform."
Such a statement coming from such a source should give pause to any one - and the present writer is second to none in his admiration for the Grand Old Man of American Jurisprudence. Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized [here underlined] words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by he present writer is an essay published by him twenty years ago in the POLITICAL SCIENCE QUARTERLY (Government by Judiciary, 26 P.S.Q. 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.
This belief notwithstanding, the term "usurpation" has never been used by the author of this work as his own characterization of the assumption of power involved - for the reason that the use of this term places the emphasis on a wrong aspect of the historical phenomenon under consideration. To the "legitimist" the most important question about the Napoleonic regime was the great Corsican's "usurpation." But to the true historian this is a comparatively minor matter in estimating the character and quality of that regime. Also, the use of that term is misleading, in that it gives an entirely erroneous impression of the meaning of Chief Justice Marshall's act in delivering his famous dictum in Marbury v. Madison. The impression created is that on the American Eighteenth Brumaire, which happened to be Feburary 24th, 1803, John Marshall put the crown on his head by delivering his celebrated opinion, and thereupon the American Court Empire as we know it was complete. This is history as she is usually written, by official historians as well as "muckraking" radicals. With this difference: According to the official historians the crown was forged in the smithy of the "Framers" and lay more or less hidden in the folds of the Constitution,- like Wotan's sword embedded in the oak, waiting for Sigemund to bring it forth and use it for mighty deeds- so that nothing actually took place on February 24th, 1803, but a legitimate coronation, when the rightful heir assumed the crown rightfully his. While the "muckraking" radicals contend that the act amounted to a usurpation of powers never granted by the Constitution, and the exercise which by the court is a continuous invasion of the rights of the Legislature.
But nothing is further from the truth. Marshall's decision was far from the dramatic event which it is usually pictured to have been. Nor did it have the implications usually ascribed to it. It is our contention that Marshall's act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the court's own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is. Hence the actual plan of this work, which-while giving to the pre-Marbury history of the Judicial Power all the attention it deserves - devotes most of its attention to the development of that power since the decision of that famous case, in an endeavor to prove that there was not one dramatic assumption of power, but rather a continuous and gradual encroachment by the courts upon the legitimate rights of legislature, executive and people. So that what was admittedly intended to be a government consisting of three equal and coordinate departments, with the primacy in the Legislature and the ultimate power in the people themselves, has in course of time through work which Jefferson had Characterized as that of "sappers and miners" steadily worked to undermine the Constitution, become what some Judges themselves termed a Judaical Despotism, with all powers lodged in an irresponsible judiciary.
That brings us to the second of Mr. Justice Holmes' statements. As we have seen, Mr. Justice Holmes believes that the courts rightfully exercise the power of declaring laws unconstitutional. But what is this power? The official theory as laid down by Marshall in Marbury v. Madison, and as it has be re-affirmed and re-asserted many times since, is that it is a necessary consequence of our system of government, and that its existence depends upon, and its exercise is measured and limited by, that necessity. It is a fundamental point in this theory that the courts have no general supervisory power of legislation, but that wen in the course of the regular administration of its own business, the courts are confronted with the dilemma of following either the Constitution or a legislative enactment which conflicts with the Constitution, they are of necessity compelled to follow the Constitution rather than the legislative enactment, since the Constitution is superior to both courts and legislature. It is a necessary corollary to this fundamental position, and therefore a canon of the constitutional "interpretation" well-recognized by the official theory, that before a statute can be "disregarded" its conflict with the Constitution must be clear and beyond doubt. In other words, the primary duty of judges is to enforce the law as made by the Legislature, unless they have a clear mandate from the Constitution itself to do the contrary. If this theory, announced by the courts themselves were observed in practice, the question of the rightness of the power, while still important, would not be so pressing a problem to the people of this country as it actually is, for the simple reason that the cases where either Congress or state legislatures disregard a clear mandate of the Constitution are so rare - if any have ever occurred at all - that the question would be rather of theoretical interest to philosophically-minded students of our system of government than of practical import to the ordinary citizen.
I will interject here that the history of what the Supreme Court has overruled and what it has left to stand is now such a long one that I suspect a thorough study of those would show that it is almost always what is in the economic, legal or political interest of exactly who you would suspect would be what stood the best chance of being sustained by the Court - those with wealth, power, influence and inherited family privilege - and laws adopted by legislatures and actions by the court which was not in the interest or preferences of those with wealth, racial, gender, etc. privilege would stand the best chance of being overturned. In the wake of the Rehnquist and Roberts courts attacks on the Civil Rights legislation and Supreme Court decisions, I think that the Court has returned to its general character since the time John Marshall and Joseph Story and Roger Taney were upholding slavery even when the Constitution itself pretended to be trying to steer past it, even when those who could demonstrate they were not held in slavery were abducted into it.
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 for that 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 a;most daily routine for the judicial machine, and the "unconstitutional" has become a "term of art" as the lawyers call it, a façon 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 the judges, - usually in dissenting opinions, and almost always in technical language not easily understood by the uninitiated. Bu 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 Baldwin 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 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 the court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanch to embody our economic or moral beliefs in is prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and 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. This alignment - whenever there is an alignment - is seldom, if ever, based on 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. [Unelected judges given a lifetime tenure, in light of the alleged impeachment power being a Constitutional myth, the Court is unstoppable, something which the present exposure of the rank corruption of Thomas, Alito and others makes especially relevant now.] 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 depend 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 Me are accountable to the people, and heir 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 Yor, May, 1931
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