TAKING UP where this left off with Nathan Clifford's warning about what the power of the Supreme Court to nullify duly enacted federal laws would lead to, "judicial despotism,"
IV concluded
As a corollary to the principle mentioned by Judge Knox that there must be some fixed rule by which the power of the courts to annul legislative action may be measured and by which the constitutionality of legislative enactments may be tested and in order to prevent our government from becoming what Mr. Justice Clifford warned us it might become — a "judicial despotism" — the courts have, until very recently, adhered to a well defined and clearly expressed rule of interpretation that every inquiry into the constitutionality of a legislative enactment must be strictly limited to the question where enacting it had the power to legislate at all in the premises. Once such power was found to exist, the manner of its exercise could not be inquired into. No law could be declared unconstitutional on the ground that it was an unwise, inexpedient or improper us of a recognize power.
The courts distinctly disclaimed any power or right to protect the people against an abuse of power by the legislature in matters on which it admittedly had power to legislate. Each legislature, accordingly, was left absolutely free to use, according to its own best judgement, those powers at least which by the court's own admission were granted or left to it by the Constitution. The power of taxation, for instance, being admittedly reposed in the legislature, no court could interfere with its exercise no matter how unwise, improvident or even dishonest its use might be deemed. The same was held true of th power delegated to Congress to regulate commerce with foreign nations. This power was held to be unlimited; it could be sued even to the extent to completely forbidding commerce as was actually done by the Embargo act.
I'm going to break in here to point something really grotesque in the above, entirely true paragraph:
The courts distinctly disclaimed any power or right to protect the people against an abuse of power by the legislature in matters on which it admittedly had power to legislate.
I'd like you to think about how that proclaimed refusal of courts to "protect the people against abuse of power by the legislature" by a branch of the government, can possibly be squared with two texts, the first is the prelude to the Constitution, itself, and the claims of what the framers were framing.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
What is "justice" if it doesn't include protection from abuse by those with power?
The other text is the introduction to the Declaration of Independence which many of those key framers of the Constitution had sworn their lives and what many of them valued above all, their fortunes and the more dubiously asserted "sacred honor," to.:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
I will note that those who favored "happiness" be replaced with the word "property" would seem to have been outvoted in the writing of that declaration.
It is bizarre in the extreme that judges and, especially, "justices" figure the welfare of We The People isn't their proper concern in office. Though, as you can see below I wouldn't trust most of the "justices" in American history to not twist that to mean the opposite, I think that any legal training which included that it was the obligation of all judges, "justices" and "officers of the court" to act in accordance with the claims of the Declaration and the Constitution might have led to lawyers not being the disreputable professional liars and self-seeking, money-grubbing scumbags that so many are and even those who listen to their better angels professionally excuse.
This rule was laid down by chief Justice Marshall, who declared that "the interest wisdom and justice of the representative body furnished the only security in a large class of cases not regulated by any constitutional provision." It has been reiterated by the Supreme Court of the United States on innumerable occasions. In the famous case of Munn v. Illinois, decided in 1876, the Supreme Court said:
"We know that this is a power which may be abused; but it is no argument against its existence. For protection against abuses by legislation the people must resort to the polls, not to the courts . . . For us the question is one of power, not expediency. . . . Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge.
This rule was absolutely necessary in order to prevent the judiciary from exercising legislative functions, thereby converting our government into a "judicial despotism.
I will mention that I'm certainly not unaware of the propensity of the Congress, especially the Senate, to be run by totally immoral and degenerate People, that's a history only somewhat less pungently foetid than that of the Court or the presidency, though, especially in the House, they do have to answer to the voters. The history of the Congress frequently demonstrates the wisdom of Jefferson's observation that the closer to having to answer in that way through elections, the less likely any individual will be to follow corruption. Though, as the present House shows, that's a check on evil that such Supreme Court authorized things such as the gerrymandering of House districts weakens disastrously.
I would question how strictly even John Marshall followed his rule or, in fact, the other "justices." As I mentioned it is the business of lawyers, and by that I do mean why they are paid, especially by those who can pay them best, to try to find ways to do what they want to do, what lawyers are paid very well to do, the better they do it for the richest among us, the more they make.
I have mentioned the "Antelope case" the one in which, even though the Congress had, AS WAS EXPLICITLY SAID IN THE CONSTITUTION THEY WERE GIVEN THE POWER TO DO, prohibit the importation of human beings as slaves into the United States and where "justice" Marshall, an enthusiastic slave holder and despiser of free Black People in the United States, found a way to let off a ship's captain who violated that explicitly Constitutional federal law. I am sure there are many other instances when "justices" and judges on lower federal and state courts have found a way to shove many a camel through a needle's eye to justify them going against that principle by merely coming up with some excuse for having done exactly what they wanted to do.
That Marshall may have had to find some other excuse to let the pirate who stole People and sold them than a direct permission doesn't matter in the slightest bit in regard to what happened to those People and any others who may have been illegally brought into the United States as a result of his ruling.
But I will continue to suspend my disbelief in the . . . well, not virtue but at least integrity of such mere mortals because I don't want to leave you with the idea that any such purported ideal situation with the Supreme Court has held even for a decade. To show that, I'll give you the beginning of the fifth part of Boudin's argument.
Before starting that, though, I'll remind you that the present Louis Boudin was talking about was the situation in 1911, I would argue things have gotten much worse since then. I doubt any Court in 1911 would do what the Rehnquist Court did in blatantly throwing a presidential election, one decided in a state run by the Republican candidates brother as governor, with such a blatantly corrupt ballot being set by a clearly corrupt Florida Secretary of State and one about which one of the "justices" Sandra Day O'Connor, having said she wanted to retire from the court, was heard to bemoan the election having been called for the Democratic candidate because she, as Nathan Clifford had, was determined to make sure her successor was named by a president of her own party. That is until she and four of her colleagues made sure that is what would happen.
Much as I detest many of the "justices" of that era, I can't believe any of them would have supported the Roberts Court in Trump v. USA in which they endorsed the idea that a president would have an immunity from the law that George III didn't enjoy in the run-up to the Revolution or even after its conclusion. Despite the reverent coverage of the Court in the media, in fiction and, most important, on movies made for theaters and TV, we are living through the most decadent and corrupt Supreme Courts in the countries history. And, as Thomas Jefferson noted in his letter to Spencer Roane which I excerpted yesterday, the one and only means in the Constitution to reign in a Supreme Court or the most corrupt and criminal president in our history, which we are also living through, the so called "impeachment power" "isn't even a scare crow" in reality.*
V
Turning now from a study of the past to a consideration of the present, we must be appalled by the enormous change which has taken place in the distribution of powers in our government, not only from the time when the men of Massachusetts, Virginia and Maryland guided by Montesquieu [see the first post in this series or read Boudine's essay from the start of it], and English precedent, first formed our government, but also from those later days when our judges, under the able leadership of John Marshall, succeeded in establishing their position as guardians of the Constitution.
Instead of "walking in the footsteps" of either the founders of our government or the earlier judicial interpreters of our Constitution, we have now abandoned all restraints upon the judicial power. We have thrown to the winds all those great limitations, embodied in principles and rules of interpretation, which the earlier judges imposed upon their own power — a power which they deemed necessary for our orderly development, but the danger of which, when not properly limited, they clearly foresaw.
One cannot read the latest decisions of our courts either state or federal, without being forced to admit that they have usurped supreme legislative power, and that we have reached the condition of "judicial despotism" which Justice Clifford feared. Benevolent that despotism may be, or otherwise: that depends on the individuals who wield that power. . . .
I wonder if Boudin may has sneered when he wrote the word "benevolent" in that last sentence because the practiced, hypocritical and formally anodyne language of judicial opinions have expressed some of the cruelest, most oppressive and even homicidal rulings the black robed, quasi priestly hacks have ever issued in the mildest and most reasonable seeming language, sometimes proclaiming the benevolence of the result. The Dred Scott decision, alone, could serve as an example of that, the "justices" in the majority presented their extension of slavery and the de-personization of Black People as the salvation of the United States.
And at this point I will note a truth that is both self-evident and never mentioned, all slavery, even the most "benevolent" requires that violence is an intrinsic part in maintaining it, and by "violence" I mean causing pain, injury, maiming, terror and murder as being an intrinsic part of it without which slavery could not be maintained for an hour. That was a truth known by every slave and every person who ever held anyone in slavery, Taney, Marshall, Madison, Jefferson, Washington, etc. You only have to read the Constitution with your eyes fixed on those things which enhanced the slave power, as Wendell Phillips did in his 1844 book analyzing the Constitution as a Pro-Slavery Compact and the use of the Constitution even after official emancipation was used to continue the slave-power to come to something like a more honest and complete understanding of why we are where we are today.
And what is said about slavery is as self-evidently true about the subjugation of Women.
I'm not a complete cynic in regard to lawyers, judges and "justices." There are those I have respect for and believe they mean the best. I think the Warren Court was in many of its reputed "landmark" decisions given as if those actually constitute a history of liberation of the oppressed sincerely hoping that those would be a benefit to humanity and life in general.** But, of course, even if they had had more foresight into the consequences of what they were producing, the "meaning," the "interpretation" of those rulings in time were as subject to Supreme Court interpretation and reading and lying about as any other laws and, as said above that depends entirely on those who are doing that. Don't get me started on the confirmation process in the Senate, that only gets us back to me ranting about that anti-democratically staffed body.
I'll say it again, lawyers, which almost every Supreme Court "justice" in its history has been, are trained in the art of finding loopholes or "interpretations" of laws and the body of laws that is the written Constitution, that allows for what they want to happen, to happen. I would say that, as Jefferson pointed out, unrestrained by having to face the voters periodically to retain their office, safe from involuntary removal because, politics being what it is, the impeachment provision of the Constitution is a pathetic myth at the highest levels of public office, the Supreme Court can be a law unto itself.
It has stupidly allowed the power to make itself one through a Constitution largely made by lawyers and the Judiciary Act which was also written by a lawyer. Though if Jefferson and his administration had taken the bother, they could have clipped the Marbury power at its bud instead of, for expediency and due to the "justices" not exercising it in a significant instead of a already moot instance while the memory of its outrageous invention was fresh, that didn't happen. As Boudin points out, its first significant use was in the "justices" in their judicial wisdom (and in the clear financial interest of a number of them) issued the Dred Scott decision which instead of uniting the country in an epoch of "domestic tranquility, that decision tore the country apart. And that was when they seem to have had some of the restraints above limiting what they do. The Roberts Court, likely the most overtly corrupt one in our history, has gone far past that.
* As I've pointed out here, the 25th Amendment stupidly gives a criminal, corrupt, insane, senile, or all of the above presidents hand chosen cabinet the power to remove them from office in case of an emergency such as the one we face right now. It has failed that test due to the simple and entirely predictable fact that THOSE ARE THE HUMAN BEINGS IN THE UNITED STATES WITH THE GREATEST STAKE IN KEEPING SUCH A DANGEROUS PRESIDENT IN OFFICE BECAUSE THEY HAVE NO GUARANTEE THAT HIS SUCCESSOR WON'T FIRE THEIR CORRUPT, CRIMINAL, INCOMPETENT ASSES AS SOON AS HE TAKES THE OATH.
The Congress has, stupidly and irresponsibly, not created the alternative to that which the Amendment provides for, as they didn't create a mechanism for keeping a president guilty of insurrection from achieving what Trump did as the Supreme Court nullified that section of the 14th Amendment to grease the skids for Trump taking power again, after he mounted an insurrection. As I say above, they can come up with all kinds of reasons to make the Constitution and the law say what they want it to say at any given time.
** Please note, perhaps above all, that those judges and "justices" who proclaimed the necessity of their being restrained in exercising the power they gave themselves to nullify laws as "unconstitutional" would seem to disclaim that that power should be exercised to prevent evil or, I would guess, promote good. Which is a bizarre claim to be made about anything presented as a virtue. I would question how many times the "justices" exercised their power in favor of those who clearly want to do evil as opposed to the times they might credibly be accused of exercising it for the benefit of the least among us, the working class, the environment. My suspicion is any accurate spreadsheet accounting for those would show a distinct imbalance in favor of whatever further enriches the rich, permits them the liberty to do what they want to when it harms those with less money, members of disfavored minority groups, Women, etc.
If you read the more recent claims of the members of the Supreme Court in that kind of light, their notions of virtue and responsibility are clearly word spinning on behalf of just those with and against those without. I think the service to those with the deepest pockets is the most pervasive and durable notion of virtue in the culture of the legal profession. These days pretty much only those who have devoted their careers to that get on the Courts, even when it's most Democratic presidents who have made those appointments.
No comments:
Post a Comment