"I do positively deny that they have any such power . . . which no judiciary ought ever to possess"

IN HIS OBLITERATION of the arguments in favor of the Supreme Court legitimately holding the power it created for itself in the Marbury v. Madison ruling, you are reminded at every point that Louis Boudin, whatever else he was, was a very well trained 19th century attorney whose exhaustive citation of the record can get rather thick at times.  

But, then, he was refuting other such lawyers so he had to make a fuller use of the documentary evidence than they did.  In his case - it help to ignore the citations unless you need to - his brilliant and lively refutation of their citations teaches you a lot along the way.   I've read a lot of him and have looked at many, though not all, of his cited materials and have been enormously impressed with his thoroughness and honesty - as well as his exposure of the sloppiness and dishonesty of those he is refuting.   

I hope you appreciate the work it is to type all of this, especially those citations and hope you make the effort to at least read what Boudin said - the passages in bold italics.   He effectively destroyed the historical and Constitutional excuses for the Marbury power grab.  I have commented in his text mostly to call attention to his most salient points and to point out that what was already terrible in 1911 is made ever worse by the more than a century of Supreme Court legislating and annulling of thuggishness from their bench.   He starts with the first of the four refutations of Associate "justice" Lurton dealing with the pre-Constitutional record. 

I

In this inquiry we may take as a starting point the proposition, which is not disputed by Judge Lurton, that at the time of the American Revolution the power of the judiciary to annul legislation regularly enacted by the legislative-department did not exist anywhere in the civilized world.  

It did not exist in England, which we took as a model in framing our government.  Blackstone, who enjoyed in the United States great influence as a writer on all legal subjects during the years following the Revolution, in discussing the question whether "acts of parliament contrary to reason are void," said:

"If the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with autority to control it;  and the examples usually alleged in support of this sense of the rule do none of them prove that,  where the main object of a statute is unreasonable, the judges are at liberty to reject it;  for that were to set the judicial power above that of the legislature, which would be subversive of all government . . . . There is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as to leave no doubt whether it was the intent of the legislature or no . . . . So long therefore as the English constitution lasts, we may venture to affirm that the power of parliament is absolute and without control."

And Montesquieu, whose authority Judge Lurton invokes, gives no support to the judge's argument.  It is indeed one of the ironies of fate that Montesquieu should be cited as authority for the supremacy of the judiciary over the legislature, in view of that philosopher's well-known admiration for the English government system of that day, upon which he based his theory of the division of the governmental powers.  

A reading of his works will prove conclusively that nothing could have been further from his mind than the ideas imputed to him by Judge Lurton.  Judge Lurton himself quotes from Montesquieu the following passage,  which to the ordinary mind would seem to dispose of the matter very effectually:  "In republics," says the great French philosopher,"the very nature of the constitution requires the judges to follow the letter of the law;  otherwise the law might be explained to the prejudice of citizens in cases where their honor, property or life is concerned.""  But Judge Lurton, true to our judicial tradition, established in recent years, "interprets" this passage by a method that is neither plain nor simple, but which does violence to ordinary common sense;  and he certainly "explains it to the prejudice" of its author.  

Significantly enough,  Judge Lurton is not able to quote a single line from Montesquieu which would in any way countenance his fanciful interpretation. 

In his appeal to American usage Judge Lurton fares no better than his appeal to foreign authority.  He says on this point:

"From the beginning it [the power to declare legislation void for unconstitutionality] has been claimed by American Courts as a proper function of the Courts under our American constitutional system.  It is a doctrine which originated in the Courts of the States long before the adoption of the Federal Constitution.  

Professor Thayer, in his Constitutional Cases, refers to no less than five decisions by State Courts prior to the adoption of the Constitution of the United States, in which it was held that the power of State legislation was limited by constitutional restrictions,  and that it was the duty of the judicial power to declare legislation repugnant to such superior law void and unenforceable whenever necessary to determine the rights of parties in pending cases.  The earliest reported cases is that of Commonwealth v. Caton, decided by the Virginia Court of Appeals in 1782."

And then he adds, wonderingly:

"Neither that case, nor either of the decisions I refer to , are cited by Chief Justice Marshal in Marbury v. Madison,  although they afford a body of opinion of commanding influence which one cannot suppose the great Chief Justice to have been ignorant of, especially as one of them was from his own state." 

The fact that Chief Justice Marshall did not quote these cases should have warned Judge Lurton that they do not "afford a body of opinion of commanding influence."  In fact, they afford nothing of the sort.  They simply prove that, shortly before the time of the adoption of the Constitution, a few judges made isolated and timid attempts to exercise such powers.  

These attempts aroused general indignation,  and the judges were called to account for their conduct.  A brief statement of three of these cases will suffice to reproduce the historical atmosphere.  The first two cases which Judge Lurton finds in Professor Thayer's collection may be ignored, because they do not deal with legislative enactments which were in conflict with written constitutions.*   

The three cases which require notice are:  Rutgers v Waddington, (New York, 1784); Trevett v. Weeden (Rhode Island, 1786);  and Den v Singleton, also known as Bayard v. Singleton (North Carolina 1787).

Rutgers v. Waddington was decided by an inferior New York court, the mayor's court of New York City.  The law under consideration was a New York statute which was claimed to be in conflict with the law of nations and the treaty of peace with Great Britain.  The court specifically declared the power of the legislature to be supreme in all matters of legislation and not subject to any reviseory power of the court;  but it disregarded the portion of the statue which was called into question on the theory that the legislature could not have intended to violate the law of nations and bring the United States into conflict with treaty obligations. 

This decision brought forth a storm of protests.  Mass meetings were called to protest against the usurpation of power by the judiciary, and ringing resolutions denouncing it were adopted.  The New York Assembly took  a hand in the matter, and passed the following resolution:

"Resolved, that the judgment aforesaid is, in its tendency, subversive of all law and good order and leads directly to anarchy and confusion; because if a court instituted for the benefit and government of a corporation [I assume they mean New York City. AM] may take upon them to dispense with and act in direct violation of a plain and known law of the State, all other courts, either superior or inferior, may do the like; and therewith will end all our dear-bought rights and privileges, and the legislatures become useless."

The case was compromised and never went to the supreme court. 

Trevett v Weeden was the first of these cases in which it may fairly be said that a law was declared unconstitutional.   The legislature of Rhode Island tried to force a paper currency on an unwilling people.  It made the refusal to take paper money instead of specie a criminal offence and abolished trial by jury in this class of case.  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.

I will break in to note that if the law was, in fact, forced on "an unwilling People,"  just as their elected representatives put the usurping judges out of office,  The People could put the presuming legislators out of office.  But We The People cannot get rid of presuming and usurping members of the Supreme Court, turning them out of office.  And their Marbury rulings - and others - can't be overturned by the next ELECTED Congress at least not so long as the Congress and Executive are duped into accepting the Marbury power grab.   It's no wonder that such an action could arouse that kind of direct public action in the Revolutionary generation which we are duped and gulled into foregoing under the PR operation that cheats us of justice. 

This next case is especially noteworthy because one of the vocal opponents of nullification by judges, Richard D. Spraight, was one of the more active framers of the Constitution under which Marshall et al, none of them framers, claimed to have created the Marbury power.  Especially note this passage in what Spraight said, "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."

Bayrd 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. Staight, 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 of 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."  

This quote might be be the most important in this long passage to remember due to the claims of those who favor the very power for the Supreme Court that was so strongly rejected by one of the framers.  

Note that Spraight said, explicitly about the power of judges to declare laws unconstitutional, "which no judiciary ought ever to possess."  And that he became the governor of the state, so he had the support of those who voted.  I'm sure we would have disagreed about some of the most important things there are but he correctly predicted the consequences of judges and "justices" being able to overturn duly passed laws of the legislature,  "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."

That certainly describes life under the Roberts Court, especially after Trump v. USA and their coronation of the stupid mad king Donald.  

If such a provision had been slipped into the Constitution, this case being so much on his mind, he would certainly have vocally and vigorously opposed its inclusion at the Constitutional Convention.  In fact he was not the only opponent of such judicial supremacy in the Constitutional Convention and the bodies in the state that adopted the written Constitution.   The total lack of agitation around the claimed power is deafening in its absence as to the fact that that power appeared nowhere in the Constitution.  Only subsequent generations were dulled into acquiescence though the time and stealth of the Supreme Court using it for anything of importance, about fifty four years between the trivial case in which the power was invented by Marshall and its first significant and disastrous use in the Dred Scott decision was enough of a lag for it to be forgotten that it was an issue that the Revolutionary generation rallied against as much as it was never a power the "justices" got from the Constitution.  The fact that the slave-power and white supremacy, one of the greatest forces of evil in the country, was served by that first significant use of the power is certainly an issue as to why it so solidly got cemented into the way the actual government works.  

It is entirely fair of me to point out that Lurton was a Confederate who lied about his own war history, especially his time as a prisoner of war, to enhance his own career.  It is certainly a fair assumption to suspect he was such a great supporter of the Marbury power because it had been so useful to his own ideology and his own prospering.   He was hardly the only "justice" that was true of then AND IT IS CERTAINLY THE CASE WITH THE SIX REPUBLICAN-FASCISTS USING IT TO REIMPOSE APARTHEID ON THE UNITED STATES.  That history isn't dead or past.  It's absolutely topical right now and into the future. 

Such were the state "precedents," and such was the temper of the people at the time of the Philadelphia Convention met to frame the United States Constitution.  Small wonder that Chief Justice Marshall did not refer to 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.  

Marshall was quite prepared to falsify the record of his own lifetime, as I noted the historian Charles Beard documented his lying about the adoption of the Constitution as being a decisive approval by the country at large in his judicial record but when he wrote his biography of Washington he honestly said that it was adopted by the skin of its teeth.  Though he didn't note the dodgy manner in which that adoption was carried out in states such as New York and Massachusetts as well as others.  Marshall was a lawyer and lawyers are trained in the art of lying.  Any uniformly honest ones have to be among those who are outliers in that profession. 

*  Here is Boudin's footnote in which he disposes of those cases by showing they are not relevant to the claims of the Constitutionality of the Marbury power.  It's worth noting if for no other reason than to show how typically dishonest those supporting that power grab are:

1.  Paxton's case (Massachusetts Superior Court 1761), is not on point, because the writ of assistance issued to Paxton, of which the validity was questioned was not issued by the legislature of the colony but by the judges;  and its validity was questioned, not because its issue was alleged to be in conflict with any written constitution, for there was no such constitution in existence, but because its issue was alleged to be contrary to English law.  The justices were unanimously of the opinion that the writ might be granted.  Professor Thayer does not reproduce the case (which was briefly reported in Quincy, pp. 51-57);  but from the appendix to Quincy's Reports, p 520, (Cases on Constitutional Law, vol i p. 48) he reprints an abstract of the argument of counsel (Otis), to the effect that the act of Parliament under which the writ was issued was of no effect because contrary to the laws of nature."  Some English judges had expressed the same notion - that laws contrary to natural law were void - but no such doctrine was ever established in Great Britain, nor does the decisinon in Paxton's case indicate that the Massachusetts judges accepted it.

I will remind you of the citation of the fine historian Paul Finkelmann, about the shifty sometimes citation and sometimes rejection of natural law by no less than John Marshall when it suited whatever result he favored IN BINDING SUPREME COURT DECISIONS.  I'm not ideologically opposed to the notion of natural law, though I have yet to find a consistent definition of what that is, but I know when a "justice" or an ideological polemicist invokes it my bullshit sensors go off scale. 

Commonwealth v. Caton, (Virginia Court of Appeals, 1782; 4 Call, 5; Thayer, Cases, vol i p. 55) - the only case which Judge Lurton names - is not in point because the court had before it nothing resembling a legislative enactment.  What was before the court was an attempt on the part of one house of the legislature to grant to certain persons, convicted of treason, a pardon, which could be granted only by the concurrent action of the two houses.  On its face the alleged pardon was nothing but a bill which had failed to become law and no court in the world would have treated it as possessing any force.  Professor Thayer reprints the case because the judges declared obiter that they were competent to determine the validity of legislative enactments alleged to be in conflict with the constitution of the state. 

Notice that Associate "justice" Lurton cites cases in which legislative enactments were not at question, repeatedly, asserting that they prove his case in favor of judges being able to annul legislative enactments. 

I have the strongest suspicion that Lurton relied heavily on law clerks, probably products of the same elite law schools that that gang of gangster lawyers in training come from today, to come up with his citations.  The same thing that Alito certainly did in coming up with his late medieval English judges to justify state legislatures controlling Women's bodies without much bothering to check if those were valid precedents to a modern case.  If Lurton would have been as knowingly shameless in citing cases that were not on point as, apparently, Alito has been in citing judges that sentenced Women to be burned as witches, would be interesting to know. 

** I'll give you another of Boudin's substantial footnotes which shows his thoroughness in presenting evidence. 

"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 f. Walton (New Jersey Supreme Court 1780; American Historical Review, fol. i, pp. 456 st seq.), a state law making certain cases triable by a jury of six was set aside, apparently because in conflict 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.  

For the sake of making our review complete, it may be said that in a letter form 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 vii, p 507).  Of this case there is no record nor is there any there mention."