There is another; and in its binding force upon the American people this other Constitution is quite as important as the written document.

IN GOING THROUGH the article Government By Judiciary by Louis Boudin,  I left off with this paragraph:

The courts occupy a position of importance in our government such as they occupy in no other government, because, instead of dealing only with the rights of one man face to face with his fellow-men, as is the case in other governments, they here pass upon the fundamental governmental rights of the people as exercised through their legislative and executive officers.

Which makes the very important point that the powers given to the Court in the Constitution was quite strong, already but the power that the Court GAVE ITSELF in the Marbury ruling and in rulings that came after that, expanded the Court's power out of any proportion to that of any other such court in any other country.  I have read many legal scholars and others who have said the same thing, that in no other country and certainly no other deputed democracy does a Supreme Court take and wield such power as the one in the United States been allowed to wield.   That power is so out of proportion that it has only been denied by one sitting President I'm aware of,  Lincoln in his conduct of the Civil War and in issuing the Emancipation Proclamation.   It is widely acknowledged that, among other wartime acts by Lincoln's government that Chief "justice" Roger Taney was planning on striking down the Emancipation Proclamation from the bench, he died before he got to hear a legal challenge to it.    

I think that's unfortunate because I have every certainty there is that if if the Court had handed down that decision, WHICH IT ALMOST CERTAINLY WOULD HAVE, Lincoln would have told the Court to go blow air as he fought the war.   Though I think such a ruling could have resulted in the traitorous states to have won the war, such is the real danger of the Supreme Court as it really is.

If you think that's overwrought,  they have gradually overturned the Voting Rights Act which is every bit as important as the Emancipation Proclamation was and Democratic Presidents and Congresses have rolled over like a whipped dog giving up as the Rehnquist Court started that overturning and the Roberts Court have given the great-great-great grandchildren of the Confederate traitors the apartheid that previous Supreme Courts and conservative administrations and congresses have acquiesced to for lifetimes of Black People in many of and often the majority of states.   

White Supremacy, America's indigenous form of fascism is as dangerous and powerful as that which went by the name in other places.  And the Supreme Court except for a decade or two, has been dominated by those who favored it.  The Roberts Court is as racist in that regard as any other, including that most depraved of those in its rotten history as Clarence Thomas.  It has surpassed the Rehnquist Court in that regard. 

The article continues:

And it is the same position that is expressed in a very forcible and striking manner in an editorial article on " The Flexibility of the Law," which appeared recently in The Outlook.   The editor of the The Outlook said:

In our judgment the real Constitution of the United States, the Constitution under which we are living, the Constitution to which the decisions of all our subordinate courts must conform, the Constitution to which all legislative acts, whether State or National, are subject, is not the written Constitution which was formed in 1787. It is that written Constitution plus the decisions of the Supreme Court of the United States interpreting and applying it, and the habit of the Nation which has grown up under it. 

The Outlook has been criticised for talking about the written Constitution as though there were any other.  There is another; and in its binding force And it is the same position that is expressed in a very forcible and striking manner in an editorial article on " The Flexibility of the Law," which appeared recently in The Outlook.  

The editor of the The Outlook said:

In our judgment the real Constitution of the United States, the Constitution under which we are living, the Constitution to which the decisions of all our subordinate courts must conform, the Constitution to which all legislative acts, whether State or National, are subject, is not the written Constitution which was formed in 1787. It is that written Constitution plus the decisions of the Supreme Court of the United States interpreting and applying it, and the habit of the Nation which has grown up under it.  The Outlook has been criticised for talking about the written Constitution as though there were any other.  There is another; and in its binding force upon the American people this other Constitution is quite as important as the written document.

The Supreme Court of the United States decided by a majority of one that an income tax was constitutional. Then one judge changed his mind and the Supreme Court decided that an income tax was unconstitutional. It is now unquestioned, or at least unquestionable, that an income tax cannot constitutionally be levied by Congress upon the people of the United States. 

What makes such a tax unconstitutional is the Supreme Court's decision interpreting the written Constitution. What made the Supreme Court's decision, interpreting the written Constitution, is the decision of the one judge who changed his mind.

But this is by no means admitted by the other side. Indeed, it is emphatically denied, at least as far as the conclusions are concerned.

I will disagree with the editor of The Outlook, the "other Constitution" the one that exists on the basis of what the Court rules IS ENTIRELY MORE IMPORTANT THAN THE WORDS ON PAPER.   The long string of rulings twisting, annulling, lying about and changing the words of the 14th Amendment, other amendments,  parts of the so-called Bill of Rights, the long list of rulings abolishing duly enacted and at times long-standing laws adopted by Congress and signed into law by Presidents, IN FACT, AS IN THE CASE OF THE VOTING RIGHTS AND CIVIL RIGHTS ACTS, RETAINED AND STRENGTHENED AS LAWS BY MORE THAN ONE CONGRESS AND PRESIDENT, and as tellingly, long retained decisions of the Supreme Court, itself,  the written word of the Constitution is whatever the current Court majority says it is,  the document, itself and even in relation to the legislative history of the adoption of it and its amendments is a dirty wash rag used to white wash the filth that the Supreme Court makes the real law of the land.  

And there is the ruling of Bush v Gore in which five Republicans on the Court handed the presidency to their preferred candidate and, worse than that,  Trump v USA in which they made Republican presidents absolute monarchs which the law would not stop,  though they seem to have a bit of buyers remorse, they have not done much of any effectiveness to roll that back SO IMPORTANT IS THEIR FASCIST IDEOLOGY OF A UNITARY EXECUTIVE TO THEM.  No doubt in their Supreme judicial arrogance, they believe they could reign in one that attacked their offices or their preferences.   And no doubt they would succeed more with the traditional kind of Democratic president than they would a modern Republican one.   Democrats should elect non-lawyers with enough audacity to not have any illusions about the law as it really is or the dangers of the Supreme Court to democracy.  And I think it will take a strong NON-LAWYER who will not appoint anyone as Attorney General and other legal offices less clear sighted in regard to legal reality than they are.  Lawyers are trained to not see and not understand and not admit how things really are.  And those are the ones who retain some scruple against lying, themselves.   Supreme Court corruption has corrupted the very culture of the law and lawyers. 

The first such act that devalued the written Constitution is almost certainly the Marbury decision which, as I noted, written by a man who was not in on the framing of the Constitution,  Marshall, nullified laws written by actual framers of the Constitution such as Marshall's predecessor as Chief Justice and, earlier, a member of Congress, Oliver Ellsworth, and numerous other framers from the Constitutional Convention who passed the Court organization act including the provision that Marbury nullified.   And the Court that gave itself that power was, in fact, criticized for it by no less than Thomas Jefferson who predicted evil such as we are living with right now would come of it. 

The example given,  the flip-flop on the constitutionality of an income tax was mild compared to the long standing laws and rulings that the Roberts Court has flipped on,  which I hope will turn into the ultimate flop as it forces reform on that corrupt court and, as important as limiting the terms and expanding the Robert's McConnell, Federalist-fascist majority on the Court into minority status will be the Congressional nullification of the Marbury power grab which appears nowhere in the Constitution.  As Jefferson said in another letter:

The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the constitution which has given that power to them more than to the executive or legislative branches. 

That was certainly the case and it is is certain that that power was a consequence of the Supreme Court creating that matter out of thin air because the Congress didn't create it and the president didn't sign any such law into existence as provided for in the Constitution.   That members of congresses, especially those trained in the lore and traditions of the law and presidents may have stupidly believed that such a power originated in the Constitution of 1787 (which would certainly seem to have been a surprise to the framers whose Congressionally passed law was overturned in Marbury) or who were gulled by lore and tradition into accepting it doesn't do a thing to make it any more a duly adopted law of the United States under the written Constitution.