WITH THIS SECOND part of Louis Boudin's argument we come right to the heart of the matter, the absolute fact that there is no explicit or honestly claimed implicit power given to the Supreme Court to overturn duly adopted federal laws in the text of the original Constitution of the United States. As can be seen below, even a major scholar of the decisions of John Marshall, the inventor of that power, had to admit that not only was there no such power given to the court in the Constitution, its presence in the document would have astonished the large majority of those who framed the document and who ratified it in the states - the claim of its universal authority over the People of the United States almost two hundred and fifty years after its ratification. THAT IS A FACT WHICH HAS ALMOST UNIVERSALLY BEEN BURIED OR COVERED OVER OR SUPPRESSED AND I DOUBT MANY PROFESSIONAL LAWYERS OR LAW PROFESSORS WOULD DARE TO ASSERT THAT TODAY BECAUSE IT WOULD BE PROFESSIONAL SUICIDE TO DO SO.
I have said that its insertion into the real Constitution, not the document that was drafted in 1787 or ratified in the months after it was put out for consideration or even as amended in the prescribed manner, but the constitution that has real and powerful effects which is a creation of the Supreme Court, that its imposition on the United States was first by stealth, the court waiting thirty-seven years before springing it on the country in its first significant use in the Dred Scott decision. And after that in increasing use of it on behalf of slavery, white supremacy, the wealthy, employers against employees, men wishing to dominate Women, for those prejudiced against minorities and in the present centuries by Republican "justices" to first appoint a president who lost an election of their own party, to reimpose Jim Crow (now John Crow in "honor" of the author of our new apartheid, Mr. Chief "justice" John Roberts) and in other ways ensure the dominance of the minority of voters and up to and including creating a monarchy in Trump v. USA so that the worst president in our history could run a reign of crime and terror such as we have certainly not known since the era of slavery.
It is that financial, ideological and power interest that the wealthy and already powerful have in maintaining the Marbury power that leads to the case that it is illegitimate being forbidden, a taboo which, if broken by those with the ability to refuse to follow it must be suppressed.
To an extent all Constitutional lawyers and scholars, whose stock and trade is in THE LORE of the law as that has grown up, have a financial and prestige stake in maintaining the many lies you have to tell to hold it up, one of the reasons I have said that I doubt any lawyers among those in Congress or in the presidency would even consider doing that. Just as in the early years under the Constitution, when those who actually wrote and adopted it were alive to be in Congress and in the presidency was a new world, the overturning of Marbury would created a new world in the law, in government, in the culture of those institutions and would require a lot of the old junk built up in rulings and law theories be scrapped - something that science does regularly but with far more reluctance than is generally acknowledged.
I'm sure many a lawyer would hate having to do the reading AND THINKING that would come with that. Entire careers of academic scribbling would become moot.
Though I will point out that with the Rehnquist and Roberts Courts overturning vast areas and even a centuries worth if not more of that lore and habit, we are already in uncharted and far more dangerous waters than anyone would have guessed thirty years ago.
We don't have much of a choice but to go in a different direction if we are not going to lose democracy, admit that we've rejected equality and even, ironically considering the claims of the likes of "justice" Lurton, a government of laws and not of corrupt men whether in black robes or the mad and stupid king they have imposed on us.
I could say a lot more but I'll give you the next section without much breaking in.
II
Turning now from pre-convention history to the Constitutional Convention itself, and to the document which that convention framed, the candid student must admit that there is absolutely no evidence whatever of any intention on the part of that body to invest the judiciary with any sort of control over federal legislation or over state legislation in matters admittedly within the competence of the states. And even if it be assumed, as it is commonly assumed to-day, that in those matters in which state legislation was made subordinate to the federal Constitution and laws it was the judiciary, rather than any other federal governmental department, that was to act as guardian of federal power against state aggression, there is not the slightest evidence that the framers intended to confer upon the judiciary anything approaching the degree of control over state legislation which in later times and by slow expansion of "implied" authority the judges came to exercise.
There undoubtedly were some men in the Convention who favored the investing of the federal judiciary with general revisory powers over legislation; but all attempts to make the judiciary part of the legislative power of the federal government failed signally and had to be abandoned by their sponsors.
The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by obvious implication. and there is ample historical proof that — whatever the hopes of some, from the complete silence of the document, as to possible future development — the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the new Constitution.
They evidently assumed that such an extraordinary power could not be exercised unless expressly granted.
The judiciary article as finally formulated was adopted without a dissenting vote and almost without discussion. It is absurd to assume that the many avowed opponents of judicial control of legislation who sat in the Convention would have agreed to the article without a murmur had they suspected that it contained even a part of the enormous power which our judiciary now exercises. Richard Spraight for one, whose fiery denunciation of this power I have quoted above, would have made the halls in which the Convention met ring to the echo with his emphatic protest, had he suspected any such implications.
And it is equally certain that had the Convention given to the courts that power, either expressly or by necessary implication, apparent to the ordinary mind, the Constitution would have been overwhelmingly rejected by the people.
A careful examination of all the evidence on the subject now extant leads to the conclusion that the Constitution was adopted by the Philadelphia Convention, and ratified by the people of the states, without any belief, without even a suspicion on the part of the great majority of those voting for it, whether in or out of the Constitutional Convention, that it contained any such implications.
Even Hamilton, who saw more clearly than did the others the possibilities arising from the silence of the document on this vital point, probably never dreamed of any development of the judicial power as has taken place since his day. Mr. Joseph P. Cotton , Jr., puts the case rather mildly when he says, in his introductory essay to the latest edition of John Marshall's constitutional decisions, in speaking of Marbury v. Madison
"Common to this conception of the powers of our courts now is, it is hard to comprehend the amazing quality of it then. No court in England had such a power; there was no express warrant for it in the words of the Constitution; the existence of it was denied by every branch of the government and by dominant majority of the country. Moreover, no such power had been clearly anticipated by the framers of the Constitution, nor was it a necessary implication from the scheme of government that had been established."
OK, I have to break in here to point out that if there was a hidden passage in the Constitution as it would have had to be to find the Marbury power in it, then the Constitution has to be held to be a sham and a con job, something sold to the American People the way that a sleazy lawyer writes up a contract with language to confuse and dupe the signer into agreeing to things they have no idea they are agreeing to but which a sleazy judge would claim they clearly agreed to and held it to be legally binding. You can't have it both ways, either that language is neither there nor implied or the framers were con men as I would hold that the Supreme Court has been in creating such junk as the Marbury power, corporate person-hood, . . . presidential immunity and a Constitutional right for office holders to accept bribes for their acts as long as the loot is delivered after the act is taken.
I think the "amazement" in light of the clear judicial modesty (including as seen below) in the pre-Marshall judiciary as opposed to the arrogant boldness of the courts that came later is a direct product of that original judicial creation of that power for itself.
Mr. Cotton may well call the decision in Marbury v. Madison "amazing," for prior to that decision the federal judiciary itself did not claim to have obtained the powers in question by the adoption of the Constitution.
Hayburn's case, so-called gives a fair picture of the way in which the judges themselves regarded the relative positions of legislature and judiciary, under the government established by the Constitution, during the first years of its adoption.
The consideration of that case should be prefaced by the remark that, upon the adoption of the Constitution, and because the powers now under consideration were not then believed to have been granted by the Constitution, the federal judiciary was considered of little importance, and so inferior and subordinate to the legislative and executive departments that our first presidents had great difficulty in getting men of high standing to accept position on the United States Supreme Court. The judges themselves were evidently in fear of encroachments by the legislative department upon their dignity and prerogatives. That was the atmosphere in which arose the following facts, which are usually referred to as "Hayburn's case."
The first United States Congress passed an at "to provide for the settlement of the claims of widows and orphans barred by the limitations theretofore established, and to regulate the claims to invalid pensions." Under the provisions of this act the claims were to be passed upon by the federal circuit courts, whose decisions were to be subject to the consideration of the secretary of war, and, if the secretary saw fit, to suspension, and to the revision of Congress, itself.
The question of unconstitutionality, in the modern sense of the word, was not involved.
But the judges saw in this act of Congress an encroachment upon the dignity and independence of the judicial department. For this view there was good reason; for if the duties assigned to the judges were regarded as non-judicial and ministerial, it was not fit that such a burden should be imposed upon them; and if, on the other hand, these new duties were regarded as judicial, the independence of the courts was endangered by assigning to the executive and legislative departments power to revise judicial decisions.
What were the courts to do? We can readily imagine what they would do now, in any similar emergency. What they actually did then shows how far we have traveled from the points of view held by the men of Massachusetts and of Virginia and of Maryland, who formed this government of ours.
The members of the circuit court for the district of New York (Mr. Jay, chief justice of the United Sates, Mr. Cushing, associate justice of the United States Supreme Court, and Mr. Duane, district judge) stated, in writing, their objections to the law. They held that the duties which Congress had assigned to the court were "not judicial, nor directed to be performed judicially," and that the court as such could not perform them.
But, they said, "as the judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the national legislature," they would execute this act in the capacity of commissioners. And they proceeded to perform the duties imposed upon them.
The members of the circuit court for the district of Pennsylvania (Messrs. Wilson and Blair, associate justices of the United States Supreme court, and Mr. Peers, district judge) and the members of the circuit for the district of North Carolina (Mr. Iredell, associate justice of the United States Supreme Court, and Mr. Sitgreaves, district judge) declined to act; and they sent "representation" to the president, explaining their apparently insubordinate conduct.* These "representations are strange reading to the lawyers of to-day. We are used to different language from members of the "most august judicial tribunal in the world."
The matter was afterwards brought up by the attorney-general before the United States Supreme Court, on the question whether the judges had a right to decline to act. And the official report says, that, although the judges were all agreed as to the unconstitutionality of the law, "the Court observed, that they would hold the motion under advisement until the next term; but no decision was ever pronounced, as the legislature at an intermediate session, provided, in another way, for the relief of the pensioners."
No decision pronouncing an act of legislation void because repugnant to the federal constitution was rendered prior to Marbury v. Madison.
The case of Calger v. Bull decided in 1789, in which an act of the Connecticut legislature was upheld is interesting, just as Otis's argument in the Paxton case is interesting, because in delivering the opinion of the Supreme Court Mr. Justice Chase went out of his way to give his views on the abstract proposition of the right of the courts to annul legislation, irrespective of constitutional limitations, on the ground that it is "contrary to the first principles of the social compact." The case is interesting, further, because in asserting obiter the authority of the court to declare unconstitutional laws void, Mr. Justice Iredell described the authority "of a delicate and awful nature' and said that "the court will never resort to that authority but in a clear and urgent case." To the view propounded by Chief Justice Chase, Justice Iredell took exception, saying:
"If, on the other hand, the legislature of the union or the legislature of any member of the union shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is in their judgment contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed upon the subject; and all that the court could properly say in such an event would be, that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.
* I will give you the long footnote on this paragraph because it demonstrates what Boudin said and because it shows how strictly the first members of the Supreme Court and district courts, some of them framers of the Constitution, saw a far sharper line of demarcation that the later members of the Court, not framers, breached in the Marbury case.
1. The "representation" which the Pennsylvania circuit court sent t the president reads as follows:
"To you it officially belongs to 'take care of the laws of the United States be faithfully executed,' Before you, therefore, we think it is our duty to lay the sentiments, which on a late painful occasion governed us with regard to an at passed by the legislature of the union.
The people of the United States have vested in Congress all legislative powers 'granted in the constitution.' They have vested in one Supreme Court, and in such inferior courts as the Congress shall establish, 'the judicial power of the United States.' It is worthy to remark, that in Congress the whole legislative power of the Unites States is not vested. An important part of that power was exercised by the people themselves, when they 'ordained and established the Constitution.' This Constitution is 'the Supreme Law of the Land.' This supreme law 'all judicial offices of the United States are bound, by oath and affirmation, to support.'
" It is a principle important to freedom that in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle, the people of the United States, informing their Constitution, have manifested the highest regard. They have placed their judicial power, not in Congress, but in 'courts.' They have ordained that the 'Judges of those courts shall hold their offices during good behavior,' and that 'during their continuance in office, their salaries shall not be diminished."
"Congress have lately passed an act, to regulate, among other things, the claims to invalid pensions.' Upon due consideration, we have been unanimously of this opinion that, under this at, the Circuit court held for the Pennsylvania could not proceed.
"1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the Circuit court must, consequently, have proceeded without constitutional authority. 2nd, Because, if upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might under the same act, have been revised and controlled by the legislature, and by an officer of the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with the important principle that is so strictly observed by the Constitution of the United States.
"These, Sir, are the reasons for our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of Congress, or to a constitutional principle, in our judgement equally obvious, excited feelings in us, which we hope never to experience again."
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