The most formidable obstacle, however, to the success of a labor party in this country is the fact that a mere legislative success would be insufficient to carry its program into execution. As shown in my articles on the “Political Situation in the United States and the Socialist Party,” the real legislative power is vested in this country not in Congress or the State legislatures, but in the courts, principally in the Supreme Court of the United States. In consequence, a success such as was achieved by the British Labor Party, that is the placing upon the statute books those of its proposals which it wants to become law, even if achieved through some miraculous combination of circumstances by an American Labor Party, would be barren of any real results. In fact it would leave the working class just where it was when it started out to organize the labor party, for the Supreme Court would undoubtedly declare each and every important measure which the labor party would succeed in forcing upon the statute books as “unconstitutional.” Indeed, it has already declared most of them, and not only the most radical of them either, “unconstitutional” in advance.
Louis Boudin: Prospects of a Labor Party in the U.S. 1910
IT WAS HARDLY only in regard to "radical" labor law that the United States Supreme Court has nullified the most vital of of legislation, as I noted yesterday that supposed giant of the American judiciary, the author of the Marbury usurpation of the legislative power to that Court, John Marshall had no problem overturning even the Constitutionally warranted power of the Congress to ban the importation of slaves into the United States. The eminent historian and scholar of the law and American history, Paul Finkelman summed up his documentation of the practice of 'justices" in regard to their playing fast and loose with the law and the Constitution said in regard to Marshall:
On the bench Marshall always supported slavery, even when statutes and precedent were on the side of freedom. He also adjusted his jurisprudence when slavery cases were before him. For example, in embargo cases Marshall was famous for his flexible approach to admiralty, and declined to apply “technical niceties” of common law procedure to maritime cases. But in cases involving the illegal African slave trade, Marshall rigidly applied technical niceties, protecting slave traders from suffering for their illegal and immoral commerce. Similarly, Marshall used natural law arguments to defend property rights, to protect the inviolability of contracts, and to condemn bankruptcy laws. But, in The Antelope, Marshall emphatically rejected the legitimacy of using natural law to liberate Africans illegal[y] brought to the United States in violation of American law.
This jurisprudence reflected Marshall’s investment in slaves that was probably unmatched by any other member of the Supreme Court. It dovetailed with his lifetime commitment to slavery and his virulent hostility to the very presence of free blacks in the United States.
Supreme Injustice: Slavery in the Nation’s Highest Court
In the Oxford Academic abstract of the article it notes:
In Supreme Injustice, the prolific Paul Finkelman takes on the three most important Supreme Court justices of the antebellum era: John Marshall, Joseph Story, and Roger B. Taney. When questions regarding slavery came before them, all three justices “invariably voted against liberty and in favor of slavery” .
Most notable in regard to the false reputation of the Supreme Court in regard to its integrity or the soundess of its judicial proclamations, THE TOTAL ABSURDITY OF DEPENDING ON THE COURT FOR THE PROTECTION OF OUR LIVES, OUR RIGHTS AND OUR FREEDOMS, it has to be noticed that of those three Story was "officially" anti-slavery, though he certainly found nothing in the law or the document that, after Marbury, the Court usurped the defining of, the Constitution which made him a reliable defender of even Free Black People who could provide evidence that they should not be kidnapped into slavery for the profit of the criminals who did that, he was the author of the infamous Prigg decision which, if Dred Scott had not been issued, would stand as the most infamous slavery protecting ruling in Supreme Court history.
And those were the years when the Court was somewhat reluctant to press their claimed authority to outright nullify duly adopted and even long standing federal law. After Dred Scott it became routine for the Court to use that Supreme Court created power in case after case, whether it was against legally free Black People, in regard to their rights, in regard to their voting rights, in regard to them having what is, AFTER ALL THE ENTIRE REASON FOR WE THE PEOPLE TO HAVE A VOTE, IS TO BE REPRESENTED IN THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT WHICH THE ROBERTS COURT HAS ANNULLED.
They repeatedly lied about provisions in the Constitution to favor employers over those they employed, worked to death, stole from, abused and oppressed. That was the point which Boudin addressed in his open-eyed and realistic view of the futility of a "Labor Party" gaining office or even all of the elected offices of the United States because any law they passed was bound to be overturned by the Supreme Court which, as can be seen in reviewing the histories of those two eminent Chief "justices" and the associate "justice" who was reputed to be among he greatest legal scholars of his generation, they can always come up with some legal language to justify laws or, in fact, the Constitution meaning whatever they want it to mean.
The history of the United States can very accurately be read as a history of members of oppressed groups, whether minority groups, Black People and Native American People being the quintessential and eternal examples of that, or Women or, even more a majority of the population, workers, or despised groups, OR JUST MEMBERS OF THE OPPOSING PARTY TO THAT WHICH ANY GIVEN "justice" BELONGS TO, ESPECIALLY WHEN THEIR PARTY IS IN THE MAJORITY ON THE COURT, having to struggle against the Constitution and, especially that far more real and consequential "constitution" the one which is a product of Supreme Court say-so, the one which actually can do everything from deprive People of their lesser rights, to keeping them from voting, having representation in the government or, IN FACT KILLING THEM.
Abolition, Womens' Rights, other great and lesser civil rights struggles, the struggles of workers to their rights and even the right to not get killed on the job, the right to their earned wages, the rights of all of us to such things as health care, all of them struggles which cost enormous work, emotional distress, blood and lives which finally resulted in federal or state laws - and not all of those struggles succeeded - THOUGH ANY OF THEM WHICH DID HAVE BEEN SUBJECTED TO SUPREME COURT NULLIFICATION.
All of that is generally knocked back or knocked down by the Supreme Court which has been a reactionary force in favor of those who have against those who don't have. Their clients have been those generally favored by the legal profession, those with the deepest pockets or those who they are allied with. THAT HAS BEEN THE CASE OF THE SUPREME COURT IN REALITY INSTEAD OF THE NINA TOTENBERG,* TYPICAL "COURT REPORTER" STYLE OF PIOUS BULLSHIT THAT HAS BEEN FAR MORE OF A NARCOTIC THAN MARXISTS FALSELY BELIEVED RELIGION TO BE. America's "civic religion" to use a putrid phrase beloved of the corrupt associate "justice" Sandra Day O'Connor, is far stronger than the Gospel of Jesus, the Law of Moses or, certainly, any other Biblical prophesy in the oppression of Americans, the large majority of whom are included in that list above. The founders fetish, the asserted inerrancy of the framers, the asserted mystic wisdom of the Constitution and worst of all, the piety of that corrupt priesthood in black robes, the Supreme Court. They are certainly as powerful if not actually more powerful than the Assembly of Experts in Iran, they have exercised the same power to appoint a president and to crown one as a de-facto king within the past quarter of a century.
American history in regard to the struggle to establish egalitarian democracy is a struggle against the established order, the wealthy, the established power, the anti-democratic corruption baked into the Constitution in the form of the Senate and the Electoral College and the general struggle against our indigenous fascism, White Supremacy and its allied ideological schemers, but more than any of those it has been a struggle against the Marbury empowered Supreme Court.
Without annulling the Marbury power the most popularly supported law adopted by even a unanimous Congress and enthusiastically signed into law by a President with enormous approval of the Voters, even, as I pointed out was the case with the Voting Rights Act, a law passed and approved by more than one Congress and president will fall to the whim of a majority of the sitting members of the Supreme Court - and it should never be forgotten that the present court was a product of court packing by Republicans in concert with a billionaire financed court-packing campaign of decades in line with a blueprint for oligarchs and racists to dominate our county through the court drawn up more than a half a century ago by the putrid Louis Powell.
In that response to criticism by the representative of Victor Berger, which I cited the other day, Louis Boudin noted exactly that point and what it will really take in American politics AS THEY REALLY ARE INSTEAD OF IN THEORY to wrest the stolen power which enables them to thwart any progress toward egalitarian democracy.
What Mr. Ghent calls my “attack on Representative Berger,” was a criticism of Comrade [Victor] Berger for what I believe to be a serious tactical blunder, in dealing with the power of the judiciary to annul federal legislation on the alleged ground of “unconstitutionality” as if it were a power actually given to the judiciary by the Constitution, instead of treating it as sheer usurpation. I made the point that by conceding that this right was granted by the Constitution to the judiciary we have at one stroke irretrievably given up our case against the courts. Our complaint is then against the Constitution: which, in my opinion, makes a big difference from a practical point of view.
Mr. Ghent says:
“So far as the practical issue is concerned, the curtailment of the powers of the judiciary is just about as feasible as the amendment of the Constitution.”
In this he is clearly mistaken. The powers of the judiciary can be curtailed whenever a majority of the people seriously want it. Provided, of course, they know that this power is not given by the Constitution. But the Constitution cannot be amended except by the consent of three-fourths of all the States, which is a practical impossibility to obtain, has never been obtained, and never will be by ordinary peace means. But that is not all. From the point of view of agitation and propaganda there is quite a difference, and a very practical one, between an agitation against the Constitution, on the theory that the founders of this Republic and the framers of that document were either knaves or fools, and one against the present judges, or usurping a power never granted to them by the Constitution. I have no objection to knocking the Constitution. But that knocking is, from a practical point of view, on quite a different footing from an agitation against the usurpations of the judiciary. And it is because Comrade Berger’s Constitutional amendment makes the Constitution “the main point” on this question, and desires to “focus attention” upon it, instead of on the judiciary, that I criticised it.
Of course, were the power in question really given to the judiciary by the Constitution, we could not help it, we would then be compelled to fight it out on the field now chosen by Comrade Berger. But it wasn’t. Mr. Ghent says, however, that that is merely my opinion: “that the consensus of views and opinions printed about the time of the Constitutional Convention tend to support” a contrary opinion; and that it is “like the States Rights question which kept two generations of Americans in turmoil.”
Mr. Ghent is in error on some of these points at least. To begin with, it is not merely my opinion. It is the opinion of every unbiased student of the subject.
Mr. Ghent is also in error on the question of “consensus of views,” etc. I naturally cannot go here into the evidence of the subject. (I have presented some of it in The Call before). I will therefore merely re-state here my conclusions as I stated them in an article on the subject published in the current issue of the Political Science Quarterly. I there said:
“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 implication. And there is ample historical proof that — whatever the points 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 Constitution. They evidently assumed that such an extraordinary power could not be exercised unless expressly granted. 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 implication.”
It should be remember in this connection that the Quarterly is not only a magazine of high standing in the scientific world, but is extremely conservative, and would not print any attack on our judiciary from a militant Socialist, unless it could be backed up by uncontrovertible proof. This subject of the judiciary is an extremely ticklish one with the intellectuals of our ruling class. Most of our magazines therefore absolutely refuse to publish any “opinion” such as mine. They will publish anything you like, including proposed amendments, etc., but not the “opinion” that the Constitution does not give the judiciary any such power as is here discussed. And the more evidence one gives in support of such an “opinion,” the worse. And even our purely scientific publications fight shy of the subject, and when they do print such “opinions,” they will only publish them if they are so worded that absolutely nothing of any historical value can be presented against them by any reactionary. It is therefore clear that had there been any such “consensus of views” as Ghent speaks of, my “opinion” would never have found expression on the pages of the Political Science Quarterly.
That last paragraph is where I left off on Tuesday.
What was being debated then is, during the Roberts Court tyranny, as relevant to our lives and politics as it was then because all of that was papered over and suppressed. The Court keeps playing the same role of thwarting equality and, so genuine democracy, the rights of Women of Workers, of all of us to a clean environment free of the domination of robber barons and old-money oligarchs.
It's time we noted the real engine of history in the United States, the train pulled backwards by the Supreme Court and the corruptions both actually in the Constitution, those which developed, especially under Supreme Court law making and Supreme Court nullification and amending of the thing as it really is and not as the words merely printed on paper.
Of those the easiest to overturn is the Supreme Court Marbury power grab, it appears nowhere in the Constitution, it is, as it always was, an invention of members of the Court, one which has a history of them exercising powers the Constitution never gave them and which, in fact, it explicitly delegates to the Congress and, in a way that the Congress can overcome by a super-majority, the presidency.
If we don't, anyone who survives will face the same Supreme Court knocking down of reforms forever.
* And Nina Totenberg is one of the better ones.
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