but the second is usurpation

I apologize for the length of this post, which is probably a mistake because some of you will see this and decide not to read it.  But I think it's at the heart of the problem and I give what I think will have to be done if the recent decrees from the Roberts Court turn out to be as disastrous as I fully believe they will be.   They are certainly headed in that direction,  though MS-Now lawyers and liberal and even liberalish journalists are holding on to any of the impotent and always calculating hedgings and dodges that the Roberts Court is taking in light of the disasters it has already created as if those are life preservers for the democracy they are as intent on destroying as the most anti-democratic of the Federalists were in the last years of the 18th century.   

I AM GOING to start off with the footnote on the beginning of the third section of Louis Boudin's argument, in which he lays out the terrible and momentous though rather banal case Marshall used to invent the Marbury power, claiming the right of the Supreme Court to act in a legislative role and nullify a duly adopted law of the Congress and president.  Note that Marshall as John Adams' the last Federalist Party president's Secretary of State had a direct role in the court-packing in the last hours of his Federalist Party's in control of the presidency - it never again had that control of the elected government, such was the potency of the Jeffersonian revolution in its democratic expansion of the heretofore elite favoring meaning of the Constitution.  

But the Federalists lived on in the Supreme Court under Marshall. That influence lasted there, several decades in living action and ever since in Supreme Court influence on the course of the country.  Which is one of the worst things about Supreme Court made law and the nullification of legislative law, Congresses get voted out of office and the evil they do has a good chance of getting overturned by something like the will of the majority.  Courts and the conservative to reactionary inclinations and habits of lawyers, judges and, worst of all, "justices" aren't even reliably overturned by even Constitutional Amendments as the history of the 14th Amendment in the hands of an aristocratic Court proves.

I have every confidence that that is relevant to Marshall inventing a power for the use of his political side especially as it turned out it could never, again, win the control of the elected branches it had had.  It's certainly relevant to both the use of such powers - and those which the court erected on top of this first power-grab - in both the Rehnquist and Roberts Court when the scope of its danger have become indisputable to anyone honest enough to admit that and the clearly partisan nature of Republican controlled Courts in the last half century.   

Though, as you might know from my criticism of a lot of the atypical supposed civil liberties rulings of the Warren and Berger Courts, I don't put much stock in the wisdom of "liberal" Courts, either. 

1.  The facts of this celebrated case, in so far as they are material to understanding of the decision, were as follows.

After the great victory of the Republicans in the election of 1800 — "the Revolution of 1800" as Jefferson called it — the Federalists [the losers of that election] utilized the brief term of power which was left to them to remodel the federal judicial system and to fill the federal courts with their partisans.  [Among the reforms desperately needed is the shortening of the length between someone losing the presidency in an election and their end of term.] As part of that work they created, by an act passed February 21, 1801, certain justiceships for the District of Columbia;  and one William Marbury, the plaintiff in the case, was appointed to one of these justiceships.  His nomination was confirmed by the Senate March 3, the last day of the Adams administration, and his commission was signed that night by the president and sealed by Marshall, the secretary of state.  On that night Marshall himself was commissioned as chief justice of the United States.  Marbury's commission, however, was left undelivered for lack of time;  and when Jefferson took office he forbade its issuance, on the ground that the appoitnment did not take effect until the delivery of the commission, and he was therefor free to revoke it. 

Marbury then applied to the Supreme Court, now headed by Marshall for a mandamus compelling Madison, Jefferson's secretary of state, to issue to him his commission.  To the order made by the court, commanding the new secretary of state to show cause why the mandamus should not issue,  Madison paid no attention.  After long deliberation, the court gave its decision in 1803, refusing to issue the mandamus.  In the opinion delivered by Marshall, the court based its decision, not on the contention put forward on behalf of the administration, that Marbury was not legally appointed and therefore not entitled to the commission, which contention it expressly overruled, but on the alleged lack of power in the Supreme Court to issue a mandamus.  In order to arrive at this latter conclusion, the court had to declare unconstitutional a statute passed by Congress giving the Supreme Court such power.  And it is this part of the opinion that has made it famous. 

III

In 1803 came Chief Justice Marshall's decision in Marbury v. Madison.  Since this is not an inquiry into the broad question whether or not the courts should have the power to declare legislation unconstitutional under any circumstances, but rather a historical sketch of he development of that power,  I shall not enter into a discussion of the merits of that decision.  Suffice it to say that historically it was, as Mr. Cotton calls it, "amazing;" and that as a matter of legal reasoning it has been pronounced by many eminent thinkers unsatisfactory.

Nearly twenty-five years later Chief Justice Gibson of he Pennsylvania supreme court, one of the ablest judges that ever sat on that great bench, called Marshall's argument "inconclusive."

Its "amazing" quality does not, however, exhaust its historical interest.  It was undoubtedly a turning point in the history of our political institutions. But it lacked much of being what it has since been often represented to be,  and what it is generally understood to be by students of and writers on the subject.  

The fact is, the Marbury power has, itself, become, under the Supreme Court's habits developed under its power to define the Constitution, WHATEVER THE COURT SAYS IT IS AT ANY GIVEN TIME.  And, as the history of Supreme Court law making has proved, that whatever it says it is tends always to become ever more bold and broad, the worst of the actions of the Roberts Court in destroying first egalitarianism, then democracy and, as it has started and with such irony, if you are merely going by the words used to describe it, the republican nature of the American government, itself. 

It is therefor worth our while to examine a little more closely into its immediate significance at the time when it was rendered. [The footnote above is placed here in the text.]

Its positive historical importance lies in the fact that here, for the first time in our federal history, a court undertook to base a decision on is alleged power to declare a law null and void for its alleged repugnance to the written constitution. 

The right previously asserted by some judges as an abstract proposition was thereby turned into a concrete power, to be reckoned with as a part and parcel of our political system.  It created the politico-legal foundation upon which the imposing edifice of that power as it now exists was gradually erected.  

Boudin wasn't exaggerating the effect that this power has had because it decisively altered the relationship between the Congress and the Court, putting the Court OVER THE CONGRESS, THOUGH ONLY FOR AS LONG AS THE CONGRESS COULD BE DUPED INTO ACCEPTING THAT DOMINATION AND THE COURT'S USURPATION OF LEGISLATIVE POWER TO ITSELF.  

It is among those ironies mentioned above that in my youth, as the Warren Court made a very few, sometimes ineffective,  sometimes back-firing rulings that the white supremacists and their increasing allies and then partners, the affluent Republican establishment didn't like, they howled and moaned and carried on about Courts making law from the bench,  something which the very same had eagerly accepted as the "Constitutional order" for the rest of its history when those rulings, in the vast majority of cases, favored their interests and ideologies from the time of Marshall and after Warren had gone.   No doubt the very members of the Roberts Court majority had regarded that kind of "making law from the bench" with disdain in their law school years and, probably, hearing their parents and grandparents on the topic, in their infancy.  That law-making from the bench includes nullifying legislation of the Congress and state legislatures as well as Court invented requirements to be carried out by the executive and followed by the Congress.  It has come to mean even the Supreme Court majority appointing a president of its party and making one an impune monarch with greater powers of law defiance than George III had when the founders and later framers made a revolution and threw him off their backs. 

But the power which was actually exercised in this case [Mabury v. Madison] was a very limited power.  Two points should be carefully noted.  In the first place, the law which the decision annulled was one peculiarly relating to the judicial department and it powers, much like the law which was questioned in Hayburn's case.  In this instance, however, the law conferred upon one of the federal courts, namely, the Supreme Court, a distinctly judicial power.  In fact it increased the power of the Supreme Court.

What was really decided, in Marbury v. Madison, was that the Supreme Court had received certain powers from the Constitution itself, which Congress would not be permitted by that court either to increase or to diminish.   One might very well agree with that contention, without attributing to the Supreme court a general right of reviewing the acts of Congress in matters of general legislation.  

From the claim that the judicial department is a co-equal branch of the government, and that its purely judicial powers and jurisdiction, in so far as they are expressly given by the Constitution, cannot be encroached upon by Congress, which is all that the case actually decided, it is a far cry to the claim that the Supreme Court is the sole interpreter of the Constitution and that its interpretation is binding on the legislative department in all matters of legislation.  

I will remind you that one of the issues in the Hayburn Case, objected to by the "justices" and district court judges who wrote to Washington complaining about the role the Congress had given them in matters of pensions was that it made their decisions subject to revisions by, first, the secretary of war (the executive) and then the Congress (the legislative) when under the Constitution the branches were held to be independent of each other and to have distinct roles.  

The "justices" and judges before Marshall went so far as to assert that the congress had and were "possessed of an equal right of opinion" in matters of law and the Constitution.  Since there is no such power given to the Court that was asserted by Marshall and the mountain of dubious and evil Court legislation built on it after he died, any such "power"  for the Congress could certainly be claimed to be there on the basis of "implication" as much for either other branch.  There have certainly been formidable scholars of the law and the Constitution in the Congress and, to a lesser extent, in the presidency. [Note: I DO NOT mean William Howard Taft here.]  I think Lincoln on the subject makes more sense than almost any of the champions of the Marbury power.  And he was never claimed to be a profound scholar of the Constitution though he was certainly among the greatest of all who ever held public office in the United States. 

In the second place, there is a wide difference, particularly in political matters, between the refusal to exercise a power which one's opponents believes to exist — which is all that those who did not agree with Marshall could say — and the actual exercise of a power which that opponent believes not to exist.  To the opponent the first may be unnecessary modesty or weakness or, at the very worst, neglect of duty;  but the second is usurpation.

A further point deserves notice.  The practical result of the decision, and the only result that the ordinary man could see, was a victory by Marshall's political opponents, the Jeffersonians.  Marbury, a Federalist appointee of Adams, applied to a court controlled by Federalists for a writ of mandamus compelling Jefferson's secretary of state to give him the commission signed by the outgoing Federalist secretary of state.  He claimed the writ under a law passed by the Federalists.  The Supreme Court annulled the Federalist law [part of the Court Act, which was written by a framer and adopted by a Congress in which a number of them sat as members as well as signed by a President who stood as first among the framers, which Marshall was not one of.] and non-suited the Federalist claimant.  Jefferson won a practical and substantial victory.  

What did it matter what reasoning Marshall employed in giving Jefferson the victory?  The "man on the street" knew nothing of Marshall's reasons.  And if he did, he did not care.  He seldom does care for such niceties.  He is so intensely "practical."  He may have thought that Marshall used a great deal of technical language and acute reasoning in order to save the face of the court.  In short, there is noting in the decision to bring its importance, whatever that was, home to the "practical man" — a fact which is often of controlling importance in historical events. 

Of course there were not wanting at that time those who could read the future.  One of them was Jefferson.  They saw the legal significance of this decision and its possible implications, and they denounced it in unmeasured terms.  Jefferson bade it defiance;  and it is safe to say that, had there been any attempt to do anything under this decision while Jefferson was president it would have provoked a conflict in which the judiciary might easily have come out second-best. 

That is certainly among the reasons that Marshall and his fellows on the Court, Federalist and other, didn't dare to use it while those for whom its illegitimacy and danger were in their active memory.  I will note that the Marbury power grab was not the only radical revision of the written Constitution undertaken by the Court and, especially, by Marshall.  That he is the most cited of all the previous and ancient Supreme Court "justices" is exactly because so much of what he wrote in decisions has become the real constitution, the one which is not written in the document that allegedly rules us but the one which consists of Supreme Court "interpretation" of that document and the laws that it has both knocked down and those it, in fact, legislated into existence from the bench.   That is what government by judiciary is, the reality under which we really live. 

But in fact nothing was done under the power asserted by the court in Marbury v. Madison during the following thirty-odd years of Marshall's chief-justiceship.  Why this was so, it is not necessary here to inquire.  I will say, however, in passing, that Marshall's position as a constitutional lawyer and statesman has been much misapprehended, owing to later attempts to base the judicial power on his decision in Marbury v. Madison.  

In my opinion Marshall's great place in the history of our country is due, not to any doctrine of the limitations of the legislative power, which others deduced from that decision more than half a century later and with but doubtful warrant, but to the liberal spirit in which he interpreted, and thus helped to develop, the legislative powers of Congress.

I have to insert that for a Chief "justice" who was so appalled at the Congress expanding the power of the Supreme Court in authorizing it to issue writs,  he had remarkably little reluctance for the "judicial department" meddling in the powers of the Congress.  Whether that was, ultimately, to the good or bad in those cases he did that,  I don't know.   But it is a good example of the quality of legal "reasoning" and its uses in the hands of those who are allowed to set the boundaries, ever changing of its authority to do what it wants to. 

Nor was the power to annul federal legislation used by the federal judiciary for many years after Marshall's death, not indeed until the troublous times that immediately preceded the Civil War.  During Marshall's chief-justiceship and under his successors, a number of state enactments were declared void because in conflict with the federal Constitution, and particularly because of attempted encroachments upon powers attributed to Congress; but the first case in which an ordinary law of Congress was declared unconstitutional was that of Dred Scott.  And the only case besides Marbury v. Madison in which any law can be said to have been declared unconstitutional before the fateful Dred Scott decision was the negligible case of Fereira v. the United States, decided but a few year earlier.  It will thus be seen that for at least half a century no attempt was made by the federal judiciary to exercise the power asserted in Marbury v. Madison.  And when it did act in this sense, it acted under extraordinary circumstances, in a attempt to solve by judicial decree an extraordinary political problem; and the attempt had extraordinary and disastrous results. 

If the consequences of the Roberts Courts' radical law-making from the bench, especially its openly partisan and, I won't mince words, anti-Constitutional consummation of the fascist, conservative Ivy League Law profs' and Federalist Fascist society unitary executive wet dream belongs on that list of extraordinary and disastrous results of Supreme Court supremacy would seem to me to be entirely likely.  If that brings about an eventual reform of the Constitution as momentous as those adopted in the wake of the Civil War,  I hope and pray that among those things adopted will be to once and for all abolish government by judiciary, and getting rid of the Marbury usurpation will only be one of the things they'll have to yank from the "justices."  

I will break up this long passage into two posts for ease of reading and commenting on it.