FOCUS ON THIS SECTION of the Hawaii Court's decision:
The Court that now defines federal due process does not honor the work of 1954. It revives the work of 1857. The work of 1896. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford, 60 U.S. 393, 405, 19 How. 393, 15 L.Ed. 691 (1857).
The "work of 1954 was Brown v Board of Education which nullified the lie of "separate but equal" and the segregation aspects of American apartheid, instituted by the Waite and Fuller Courts in the 1880s and in Plessey in the 90s (the work of 1896), The "work of 1857" was the Dred Scott decision. Exactly what I've said the Roberts Court was up to for at least the past three years.
That quote in that passage by a member in good standing of a state Supreme Court is taken directly from Taney's Dred Scott decision, a decision in which, as Justice Curtis' dissent proved beyond any doubt, Taney lied about the citizenship status of Black People at the time of the adoption at the time of the Constitution which defined those with the status of U.S. Citizenship in the states, at that time. Five of the thirteen states allowed free Black men with sufficient property to vote, it was an absolute fact that in those and other states that Black People were legally citizens of those states. Taney's claim was that based on the original intent and meaning of the US Constitution in 1787, all Black People had no rights that a white man was bound to respect and that Black People could not bring a claim to a federal court rewrote the original Constitution to suit the purposes of those who enslaved in 1857.
Taney held up the release of his decision for several weeks so he could try to wriggle out of that lie without correcting it but there is no getting out of that lie unless he and his fellow white supremacist "justices" in effect declared the provision in the constitution that defined those entitled to citizenship in the new United States, Article IV, Section 2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," null and void. Though they, of course, wouldn't call what they did in fact by the honest name for it. They never do when they do that. Liars they are before anything else.
That is something the court would increasingly do to whatever part of the Constitution didn't suit the purpose of the majority almost as soon as the Civil War amendments overturning slavery and Dred Scott were adopted as parts of the Constitution. The Roberts court is doing what Taney did, what the Waite Court did, what the Fuller Court did, what subsequent Courts did over and over again once Taney had broken the embargo on doing that in the biggest possible way. It has become routine for the Supreme Court to do that.
Jefferson predicted that would be the results of the Marbury power grab decades before it happened.
The next paragraphs in the decision are a list of such actions and the results of it
Today's hubristic originalists use the same method to control modern life. See City & Cnty. of Honolulu v. Sunoco LP, 153 Hawai'i 326, 361, 537 P.3d 1173, 1208 (2023) (Eddins, J., concurring) (“A justice's personal values and ideas about the very old days suddenly control the lives of present and future generations.”).
That sentence is taken from the concurrence in a Hawaii case that makes interesting reading, as well. It anticipates what was said in this decision.
The Court overrides what Congress passed. It overrides what the people chose. All to serve its own ends.
What this Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawai'i's Constitution takes no instruction from it.
Article I, section 5 provides versatile and sovereign protection. This court does not anchor Hawai'i's due process rights to the federal floor. Especially one that keeps sinking.
We take no guidance on the meaning of due process from a court that gutted due process protections in Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022). Zuffante called it straight. Dobbs erased a “generations-long constitutional right, stripping autonomy from half the population, and empowering states to force birth.” State v. Zuffante, 157 Hawai'i 194, 200, 576 P.3d 243, 249 (2025).
"Especially one that keeps sinking," the Roberts Court is hardly done with their destruction of equality and democracy, they're just getting started.
Impeachment won't stop them because it won't remove them from office because the Senate will never convict with a super-majority, something they know. Democrats will not have a Fettermann proof super-majority and even if they did, I'll bet some of the lawyers among them would be too cowardly to convict if it really meant doing what has never been done before.
Amending the Constitution to remove the Marbury power won't happen, it's even more unlikely than the impeachment of the most corrupt "justices" or criminal presidents in our history due to the even more rigorous hurdles it would have to get past.
Doing so by statute by revising the Court Act will depend on both a Democratic Congress and a Democratic President willing to sign it instead of veto it. And that measure doing it depends on the extremely unlikely future in which no Marbury supporting "justices" get a chance to revive the anti-constitutional power grab. A veto proof majority might happen, so that might work. It was done in 1801, which brought about the case that gave Marshall and his three colleagues who created the Marbury power their opportunity to put the Court over the Congress and presidents as they chose to exercise it, and again in the subsequent Act by which the Jeffersonian democrats overturned that Federalist Party attempt to use the Courts to extend their power which the voters had voted to end. Though, as can be seen in what I've posted since July 21, the Jeffersonians were too late. And I'd never depend on there being an anti-Marbury majority on any future Court until that rot dies out in the lore of the law. That will take generations of the Congress and presidents nullifying it.
As Louis Boudin pointed out, though, since there is absolutely nothing in the Constitution that ever gave the Court that power - and the Court, itself, violated the lame excuse for why that power must have been implied, to abolish outrageous laws adopted in violation of the written Constitution in creating that power - its definitive nullification requires only that the Congress and president say it is null and void.
Jefferson, in his condemnation of Marshall's theory that put the Court as the final and non appealable definer of the Constitution, said that the Congress was as much authorized to define the Constitution as the Court was.
My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.
Letter to Spencer Roane Sptember 1819
Which is, by the way, the most dangerous way to do it because I can guarantee you, at some point a Trump or a Bush I or a Reagan or Nixon will do it that way unless Democrats do it first and readopt the kind of clean elections laws that were passed after the Watergate crisis. I don't think there's much of a chance unless they also make it prohibitively costly for the media to lie for billionaires, millionaires, white supremacy and fascism, ignoring the Supreme Court and the ACLU as they want to give them another chance to do what they've done since the last major steps toward egalitarian democracy starting in 1964. Republican-fascism lives on lies, democracy dies by them.
Those of you too young to remember Watergate might not understand what a crisis that was for old style Republicans who believed in democracy as used to exist. I knew several Republicans, those who had been Republicans since the time of Lincoln who quit the party, at least one I remember became a rather stalwart member of the Democratic Party. And there were still some Republicans in Congress who were horrified and scandalized at the revelations of criminality and law breaking by Nixon and his campaign, horrified enough to vote for the adoption of the clean elections laws that the Court overturned in Buckley v. Valeo - which has snowballed into the ever more corrupt line of decisions coming from it in such toxic pollution as Citizens United.
I'm convinced, either Democrats do that at the earliest possible opportunity and simply declare that the Court's distortion of the Constitution in regard to duly adopted federal law is null and void or some Republican-fascist will do it and it will be, as it was after 1803, too late.
* It would be a very interesting and different history of the United States if Jefferson's "construction of the constitution" had determined things. What that would be is impossible to say, though I think it would have been a history of increasing equality and democracy without the repeated abolition of those by the U.S. Supreme Court, the real history of the country in which that progress is knocked down that way over and over again. The Jeffersonian revolution of 1800 which threw the Federalist aristocrats out of elected office was the first major instance in which such reform happened, it would not be the last, but it would be the one most resistant to the Supreme Court trying to nullify it as Jefferson said they had in the very same letter that quote is taken from. Are today's Americans too cowardly to make such an experiment even seeing what a disaster the Roberts, Rehnquist, Berger, Taft, Fuller, Waite, Taney, Marshall, courts have been for America as an egalitarian democracy have been? Have America's egalitarian democrats lost their nerve, does that play a role in why we have lost the thread of egalitarian democracy and social and economic justice?
No comments:
Post a Comment