Consider Brutus 15 In Relation To The Republican-fascist Controlled Roberts Court

I DON'T KNOW if it has always been fashionable to cite "The Federalist Papers," those propaganda letters published under pseudonyms to sell the Constitution to a not altogether trusting country but it is one of those poses struck at least as often if not most often by those who want to assert some really awful idea of the Constitution as those who want to assert something good.  I don't know if my general skepticism of what I've come to think of as the "founders fetish" started with that but it certainly contributed to it.   I have never seen anyone make an honest argument as to why their understanding of things was to be given more weight than our understanding of things now that we have lived under the Constitution with all of its glaring evils - slavey, anti-egalitariaism, interpretations of it that are anti-democracy - as those have developed for more than two centuries.  The cult of the Constitution is an absurd worship of the work of often clearly corrupt men who inserted their own self-interest into the document over that of We the People who have had to live under what they gave us and those hard decades and centuries of experience which those guys in the late 18th century never had. 

Right now the Constitution is beyond crisis, with both the failure of the Republican-fascists in the Senate to remove Trump when he mounted an insurrection against the Constitutional order and the Roberts Court majority aided in preventing the judicial system holding him account for his crimes AND CREATED THE PRESIDENCY THEY HAD EVERY REASON TO BELIEVE THAT CRIMINAL WOULD REGAIN INTO A MONARCHY,  the Constitution has failed, utterly.   Far from the reassurances and anodyne claims of the Federalists and the other founders, many of the worst fears of the Antifederalists have come to pass and there is every reason to believe other of their warnings will prove to be far more realistic than those things we are taught in conventional civics are guaranteed by the Constitution.   I think in no place is this more true than in the Antifederalist letter of "Brutus 15" warning about the Supreme Court.  In some ways his fears were some of the first realized as the Marshall Court usurped exactly those powers to absolutely determine what the Constitution said, thus giving the Supreme Court the power to nullify laws adopted under the Constitution and to distort and at times entirely change the meaning of parts of the Constitution, itself - the history of the 14th Amendment at the hands of dishonest and corrupt Courts alone proves that case.  

I will note that in a lot of the commentary on the warnings of the Antifederalists will make light of many of those on the basis of past restraints when the Courts and even politicians valued their reputations and place in history, though it's clear that today's love of money and power over all controls all of that.  That was true in the past, as well, but, ironically, among those on the Court who make so much of a pose of their respecting of religion, it's clear they have no such moral inhibitions when they can claim the Constitution gives them leave to do the most clearly morally reprehensible things.   They know that the Republican-fascists in the Senate will protect them from, for example, having the clear financial bribery and payoffs to Alito and Thomas not to mention the Roberts Family and, with the terms of her book deal with its absurdly high and certainly never to be recouped advance, Coney-Barrett.  And those whited sepulchers in black robes are the worst Court in our history.  That doesn't mean that still worse might not be coming, as soon as the coming term as they openly insert themselves into the mid-term elections on the side of Republican-fascism as they did in Bush v Gore.   When you know you face no consequences, your free hand in just making it up as you go has no restraint as you will eventually feel no shame as you get used to just making it up. 

Here is what Brutus noted and predicted.  

28 February 1788

I said in my last number, that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe, the courts of law are put upon the most prudent establishment, they are on a very different footing.

The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union. — I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution.They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjudging that they are inconsistent with the constitution — much less are they vested with the power of giving an equitable construction to the constitution.

[The idea that the members of the U.S. Supreme Court hold thier offices during their good behavior, is a quaint and cynical joke after more than two centuries of the complete inability and unwillingness of the Congress to remove even those who have been as corrupt as could be.   Whether that is the one and only real attempt to exercise the - we now know mythical - impeachment power when a truly bad "justice" Salmon Chase wasn't any more removed by it than Donald Trump was when his blatant criminality included mounting an insurrection to overturn the very basis of legitimate government.  I'm expecting to spend some more time with this number of the unjustly ignored Anti-federalist Papers which contain some of the most important evidence that we are seeing exactly many and potentially all of the defects in the Constitution they noted being made manifest in the Roberts Court.    As, in fact, they were made manifest in most of the worst rulings of the Supreme Court starting with the Dred Scott decision.  In looking up the Anti-Federalists I've seen a lot of cases in which some of the warnings such as were given in this number of them that the Court could, in effect, nullify state government, are said to be unrealistic or over-reaching in some way.   That pooh-poohing of that worry is either one of two things, dishonest or ignorant.   The fact is that it was in the second use of the Court usurped Marbury power, the Dred Scott decision,  the first time a Court dared to impose that in a significant way nullified the power of state governments to outlaw slavery within the free states.   Anyone who believes that the Roberts Court feels in any way bound to not do the same thing as it suits them and their purposes might be one or the other, dishonest or ignorant but given what we're seeing from them virtually every week, in session or out, means only an idiot could believe they feel any kind of restraint.   I think those things which this particular Anti-federalist warned about are worth taking a lot more seriously than what the pious, conventionally minded expounder of civics or history would have said was within the bounds of reality even two years ago.]

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will control the legislature, for the supreme court are authorized in the last resort, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behavior. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent — which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries — they have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark — Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country.

The great reason assigned, why the judges in Britain ought to be commissioned during good behavior, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions, as would tend to increase its powers and prerogatives. While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr, for the judges to determine contrary to the king’s will. — They were absolutely dependent upon him both for their offices and livings. The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point, in favor of liberty. When they obtained the appointment of the judges, during good behavior, they got from the crown a concession, which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge’s offices for good behavior, lose a considerable part of their weight when applied to the state and condition of America. But much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.

[ We have a situation today in which the Roberts Court majority has turned this on its head by JUDICIALLY PUTTING A CROWN ON THE HEAD OF THE WORST AMERICAN PRESIDENT IN OUR HISTORY,  DONALD TRUMP - a crown which the Constitution didn't put there and which will be rejected only by the best of those who are elected to the presidency as its powers are gleefully asserted and exercised by the very worst of American politicians and "reality TV" figures who are pushed by the most corrupt party and the billionaires and millionaires who dominate propaganda - as also permitted and tacitly encouraged by this and previous Supreme Courts.   The motives of the Roberts Court and the law-school theorists who dreamed up the unitary executive claims about the Constitution are clear THEY KNOW THAT THEY WON'T GET WHAT THEY WANT THROUGH EGALITARIAN DEMOCRACY AND THEY PREFER A DICTATOR OF THEIR PARTY TO DEMOCRACY OF ANY KIND.   The liar-lawyers trained at the Ivys used to feel like they had to come up with some kind of a contorted reasoning out of past Court lore and assertion but the six Republican-fascists dominating the Court have given up that pretense.]  

I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will show — That there is no power above them that can control their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.

1st. There is no power above them that can correct their errors or control their decisions — The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits. — In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2d. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity.

It is expressly declared by the constitution, — “That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”

The only clause in the constitution which provides for the removal of the judges from office, is that which declares, that “the president, vice-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.” By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. — Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.

[The removal by impeachment of the most blatantly corrupt Supreme Court "justice" like that of the most blatantly criminal president - and we have both Trump I and Bush II as examples of those within fresh living memory - is a Constitutional fiction.   Since it constituted the last hope of those who believed that it would prevent the dangers that such as Robert Yates saw in the Constitution - dangers which became clear as soon as the first instance of a "justice" committing impeachable acts NOT being removed from office, Salmon Chase - every evil predicted by the Antifederalists not happening has depended entirely on a sense of those on the court that they might go too far.   With the refusal of the Republican-fascists under Mitch McConnell refusing to impeach Trump, not only the first time but also the second time WHEN IT WAS DUE TO HIS ATTEMPTED PUTSCH AGAINST THE CONSTITUTIONAL ORDER the Roberts Court has no reason to believe that anything they do will lever be too far.  That failure to remove Trump will go down as THE fatal failure of the Constitution and everything the Roberts Court did after that, including making Trump II president as the legal system didn't hold him to the account that McConnell gave as the safety switch didn't work, flows directly from that failure of the Constitution.] 

NOTE:  I will be commenting on this more but I'm going to give you the rest of it without comment for now. 

3d. The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorized to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution, they cannot assume any of the rights annexed to the judicial, for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs — both are derived from the same source, both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial. — The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitution of the country, contrary to the sense of the parliament, though the parliament will not set aside the judgment of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme — and no law, explanatory of the constitution, will be binding on them.

From the preceding remarks, which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.

I have, in the course of my observation on this constitution, affirmed and endeavored to show, that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national. In this opinion the opposers of the system have generally agreed — and this has been uniformly denied by its advocates in public. Some individuals, indeed, among them, will confess, that it has this tendency, and scruple not to say, it is what they wish; and I will venture to predict, without the spirit of prophecy, that if it is adopted without amendments, or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan, will employ the same to persuade the people, that it will be for their good to abolish the state governments as useless and burdensome.

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion. The people will be told, that their state officers, and state legislatures are a burden and expense without affording any solid advantage, for that all the laws passed by them, might be equally well made by the general legislature. If to those who will be interested in the change, be added, those who will be under their influence, and such who will submit to almost any change of government, which they can be persuaded to believe will ease them of taxes, it is easy to see, the party who will favor the abolition of the state governments would be far from being inconsiderable. — In this situation, the general legislature, might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution. — If the states remonstrated, the constitutional mode of deciding upon the validity of the law, is with the supreme court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.

Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people choose at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.

Brutus