THE SUPREME COURT'S claimed authority to overturn laws adopted by the Congress and most of all those signed by presidents is, as honest supporters of that claimed authority will admit, is to be found nowhere in the letter of the written Constitution.
Even many of those who might be considered honest, well, as honest as lawyers generally allow themselves to be, will claim that such momentous powers are to be taken as "implied" in the Constitution out of "necessity." That necessity is the hypothetical and, perhaps occasionally real situation in which proposed legislation has passed through the various legislative and executive hurdles to become duly adopted law under the strict rules of the Constitution being intolerably "uncostitutional." That, as I noted in the posts you are whining about, there is an absolutely clear and defined and inescapably noticed power of vetoing legislation in the text of the Constitution AND IT IS GIVEN TO THE EXECUTIVE, NOT THE COURT. It is a certainty that if the framers had intended or dared to include such a power for the Supreme Court it would have stated that in as clear terms.
That fact renders the claim that there is a hidden, occult, meaning of one in the brief and summary 3rd article of the Constitution which remained hidden from those framers such as Richard Spraight who had vigorously opposed such a power for the courts, the many men of influence in the various states who had, as noted in the posts you didn't care for, vigorously complained and objected in mass meetings when state courts in several of the original states and the Mayor's Court in New York City had tried to exercise such a power and many other opponnts who were those who had to vote to support the adoption of the 1787 Constitution or it would have never become THE CONSTITUTION which such legislative and executive actions may have theoretically violated, it renders the claimed reason for that power being invented ludicrous.
In short this "protection" against the legislature acting against the written Constitution is, itself, the greatest of all violations of the written Constitution.
I've found in the past twenty years of writing somewhat formally about the legal racket, the laws, the courts, the lawyers the "justices" that irony is often the predominant flavor of the often unsavory dish. The hugest irony of the Supreme Court inventing a fictitious Constitutional provision which gives courts that power is that it, itself is about as huge a volation of the written Constitution of the United States that has ever happened and which has ever endured for all but about fifteen years of the Country supposedly being governed by the written Constitution. There has never been a legislative act which I'm aware of that is as clearly a dangerous violation of the text of the written Constitution which has lasted long - and I'm not talking about those which the Supreme Court has nullified, which tend to a completely different character - which is as dangerous a violation of the written Constitution as the Marbury power grab in fact has been in the most consequential of ways.
That power has been used, as I and numerous other's have pointed out, including Abraham Lincoln, Fredrick Douglass, many of the most eminent lawyers and statesmen in the period just before, during and after the Civil War, to declare Black People non-persons and to extend slavery into the Congressionally and presidentially designated free-territories and, in fact, in every state which had abolished slavery in their lands (slave-holders could bring their slaves to free states and maintain them in slavery). The Marbury power was used to overturn Voting Rights and Civil Rights and impose America's shame of Jim Crow . . . . it has been used notoriously in so many cases in which People ended up as legally discriminated against, endangered by their conditions of employment, incarcerated in detention camps without that "due process of law" which became one of the tools of the Court exercising that power, and right on up til today when, as I pointed out, the Roberts Court is repeating the outrageous use of it to nullify the rights of Americans under the 1960s Voting Rights and Civil Rights Acts. As I noted, it was used to nullify anti-lynching laws in the very year that the Waite Court (a name that should be as infamous as Taney and Roberts) nullified the original Voting Rights and Civil Rights Acts,
The obvious question is who is to protect us from a Court that transgresses the written Constitution?
The answer that the Congress can impeach "justices" is absurd and, in this case, it would mean they would do so for them making rulings that the Congress doesn't approve of, which, in turn, would mean that the super-majority adopted for the Senate to convict would protect them from even a majority voting to remove them as it has, in fact, protected the most criminal president in our history, Trump.
As noted in the series, the farce that the impeachment power is was so obvious from the start that Jefferson mocked it as such in 1819, less than a third of a century after the adoption of the thing. It had failed to remove the grotesquely partisan "justice" Chase within that period. This short article on that on the Senate website shows why that has never happened and gives the reason that the suggestion of THAT as a means of dealing with a Supreme Court in which the majority has violated the written Constitution is an absurd dodge of the question. I'll give you the whole thing so you can't accuse me of "cherry picking."
Samuel Chase
On November 30, 1804, for the third time in its brief history, the Senate began preparations for an impeachment trial. In 1798 and 1799, the Senate had tried a senator previously expelled on grounds of treason. The Senate dismissed the case, citing lack of jurisdiction. The second impeachment trial, in 1804, removed a federal judge for reasons of drunkenness and insanity. More than the first two proceedings, however, this third trial challenged the Senate to explore the meaning of impeachable crimes.
Samuel Chase had served on the Supreme Court since 1796. A staunch Federalist with a volcanic personality, Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had "behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard." Highlighting the political nature of this case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench, thereby "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan."
On November 30, 1804, the Senate appointed a committee to "prepare and report proper rules of proceedings" for the impeachment trial. When they took up the case against the Federalist justice in January 1805, the Senate consisted of 25 Jeffersonian Republicans and nine Federalists. Chase appeared before the members on January 4, 1805, to answer the charges. He declared that he was being tried for his political convictions rather than for any real crime or misdemeanor and requested a one-month postponement to prepare a defense. The Senate agreed and the trial began in earnest on February 4.
Chase's defense team, which included several of the nation's most eminent attorneys, convinced several wavering senators that Chase's conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts. A majority voted guilty on three of the eight articles, but on each article the vote fell far short of the two-thirds required for conviction. The Senate thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. Chase resumed his duties at the bench, where he remained until his death in 1811.
Note that this official Senate article more or less brags about the Senate failing to convict in an impeachment trial, something it has never done to even the most clearly criminal presidents in our history. Trump alone would be the example of why the impeachment means of removing the most criminal of presidents, "justices," etc. is a fairy tale instead of a protection against them.
Note also, Chase's defense "that he was being tried for his political convictions rather than for any real crime or misdemeanor." First, that his political convictions had become an issue in his actions as a "justice" of the Constitution refutes the lie that the Supreme Court isn't a political entity, it has been one its entire existence, certainly since the years of the "revolution of 1800," the means by which "justices" are put on the court makes it so and to pretend otherwise is one of those lawyer-lies I'm never going to not call what they are. That it was a Court controlled by the Federalists who had been defeated by Voters, decisively, never to have elected power again, is certainly relevant to why Jefferson and his party were at odds with them. That it was an act of the first and last Federalist President, John Adams, which gave them the excuse to invent the power that made the Court supreme over the Congress and President was certainly partisan in nature. Adams attempt was to rig the Courts with his partisans, he appointed Marshall to the Supreme Court to ensure the empowerment of his party as the Voters had rejected it. That power lasted for decades after the People had rejected the Federalists.
But that's a diversion from the point. There is no correcting a Court that acts unconstitutionally by impeachment and, if that were done, it would be claimed to be an outrageous act of partisanship.
The idea that you can correct an unconstitutional Court by the extremely difficult and arduous , long and hardly likely to succeed act of Constitutional amendment is even more absurd. That was done in the wake of the Civil War in the Civil War Amendments which sought to overturn defects in the original Constitution, tiny little matters such as permitting and embedding the holding of human beings in slavery and, in fact, the first significant use of the Marbury power by the Court, the Dred Scott decision. As can be seen from the history of those entirely valid parts of the written Constitution under Supreme Court usage - as in the 1883 decision that distorted the 13th and 14th Amendment against their clear intentions to start the de jure phase of American apartheid, the Court can and will nullify or just lie about provisions of the Constitution, something it has repeatedly done. As pointed out here repeatedly, the Roberts Court has overturned far more than provisions of the Constitution in many of its rulings, none more so than Trump v. USA. It has overturned the very idea of a republican form of government in favor of planting the seeds of a fascist one. They gave Trump powers and immunities that George III didn't have.
Which adds this to the observation that the Marbury power not only does not protect us from clearly unconstitutional acts by Congress which the sitting "justices" like - I'd like a list of such laws that the Supreme Court has unwillingly overturned, I can find no such list ever being made - it is nothing like a reliable guarantee of the Court protecting citizens or residents, you know PEOPLE, from clearly illegal and unconstitutional acts by a president - at least not of those by one of the majority of the "justicies" own party. The Court failed to protect citizens from the shameful internment without trial of Americans of Japanese heritage by one of our best presidents, Franklin Roosevelt. It has failed to protect Americans from being targeted without reason by federal police in Noem v. Vazquez Perdomo, the one in which Kavanaugh, in his concurring opinion said that racial profiling was a legal reason for such targeting. And I will say targeting because of the stunning number of instances in which the police have murdered innocent People in such actions, generally with impunity during the Trump-Roberts era.
Trump v. USA is, so far, the flagship case in which the Supreme Court has done far more than just refuse to reign in a Trump acting unconstitutionally, it has given him and his goons immunity from the law in any of his "presidential" actions, making the so-called law-enforcement arm of the federal government, the so-called "Department of Justice" his mob lawyers whose actions cannot be revealed by compulsion or, I'll bet if the case comes, by Congressional mandate. I will add here that Trump, trained well by the corrupt Roy Cohn has mastered the use of the laziness and slowness and cowardice of judges and "justices" to be the most lawless president in our history. His wildly successful career in doing that is a graduate course in the folly of relying on the integrity or efficiency of the American judiciary.
Far from protecting the People from extra-constitutional actions by the Congress, the Marbury power has been wielded over and over again to remove protection from The People in the most dangerous of ways. I noted the bizarre notion that it was no business of the Court or courts to act in the interest of the welfare of People or even all of the People except if, by some chance, their decisions were in line with those. I would bet you anything that a real and honest telling of the history of the Marbury power would show that, by a clear and large majority of its decisions and, especially, in the numbers of People, citizens, residents, foreign and domestic that such "protections of the written Constitution" has harmed far more than it aided, and those that the Court and courts so aided would tend to be the rich, the powerful, the white, the male and members of the "justices" and judges, own class and party.
The ultimate protection of the People from an out of control Congress, at least in a true and egalitarian democracy, would be the vote. We could vote them out of office for those who would overturn any such laws so passed. We can't get rid of "justices" and judges like that, at least not in the federal courts and, given the results in many of the states where such "justices" and judges are elected, especially under our frequently corrupt districting and means of informing voters of the truth of the matter, that's a really mixed bag. That ours is so unreliable in that is a product of the slave-power and small-state rigging of the American system to empower a minority against the will of the majority, and that is as bad a defect in the Congressional area as the extra-constitutional Marbury power is in the judiciary.
The framers and other commentators on the forms of government were always fretting over the majority violating the "rights" of the minority. In almost every case in which one of the framers or those around the adoption of the Constitution went on about the danger of the majority in that way THEY WERE FRETTING THAT THE LARGE MAJORITY OF THOSE WITHOUT WEALTH WOULD TAX THEIR WEALTH FROM THEM, even if just a substantial portion of it. The very same framers, founders, etc. were quite content for a small minority of the affluent and powerful, the legally favored violating every one of the rights of very large groups of the underclass, slaves, Native Americans, Women, unpropertied white men (by the way, New Jersey early on allowed not only Black men with property to vote, they allowed unmarried Women of property to vote, as well, but that's another story). The Supreme Court has, with its unconstituional power, carried on in that manner right up till today. And we're expected to put up with the appalling consequences for all of us because of the hypocritical frettings of a bunch of lawyers in the 18th century because they were afraid they'd be taxed into a lower level of wealth by We the People through our elected representatives. IF FRICKIN' ONLY!
Update: Reading through this on a larger screen than I used to write it, I should have noted that one of the more obvious reasons the framers and their allies fretted and whined about the "tyranny of the majority" was that even in the 1780s, they were afraid that eventually a majority would come to regard the slavery that made so many of them rich, through enslaving People or importing and trading in slaves, as a number of the Northern framers were involved with an intolerable evil.
That is about as unworthy a concern as an excuse for hamstringing egalitarian democracy there could possibly be. One that we are not only under no moral obligation to respect but we have an absolute moral obligation to permanently remove from any constitution that rules us, whether the written one or the real one that is a product of court invention and, not infrequently, lies.
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