In this realm nothing can be said to be "free from doubt"

WE ENDED YESTERDAY with the beginning of the fifth section of Louis Boudin's argument against the power that the Roberts Court has used to nullify the Voting Rights Act and other laws in favor of white supremacy, America's indigenous and always very powerful form of fascism and to empower the political power of the Roberts Majority, the Republicans.  

If you doubt its fascist nature, you certainly know nothing about how those it has targeted in the states and in the federal law.  Especially as that really is as allowed by courts instead of the bullshit that they serve up in old-line civics and history classes and in the even bigger pile of it that constitutes the large majority of that real curriculum of both for most Americans, in descending order of power, these days, online fascist polemics, old-line lies about American history and the alleged Constitutional order, Hollywood crap, movies and TV, right-wing hate talk radio, libertarian fantasy,  Broadway style shows with "music" and dancing, Aaron Sorkinesque media productions, hagiographic print media such as best seller biographies of the founders and framers, and more along that line, the easier to consume the more influential it is.  That is the brood-house where young fascists,  recently born,  take the place of the old line racists, segregationists, KKK and other violent members of groups such as MAGA and the like, and genteel members of legal societies such as staff the fascist end of the Roberts Court.  

They are aided by go-along-to-get-along lawyers, politicians, journalists and academic scribblers and babblers of all political stripe who know that their reputations for soundness and perhaps even their reputations as lawyers depend on them knowing nothing as to the true history and present usage of that power, the absolute fact admitted by even its honest supporters that it appears nowhere in the Constitution which was drafted by a body including some who were vehement enemies of the judiciary holding the power to nullify duly enacted law.  The Constitution drafted in a country which had very recently known public furores over state courts asserting such a power in New York, Rhode Island, North Carolina, etc.  

If such a power had appeared honestly and forthrightly in the Constitution its narrow ratification in the states would almost certainly never happened.  And the narrowness of that ratification and the sometimes shifty means that the federalists took to rig votes in at least several of the states is the real history of it, a history attested to by no less than John Marshall in his biography of Washington, even as he lied about it in his judicial scribbling.  But today all of that is a suppressed truth.  

The framers of the Constitution, fully knowing the objections to that power from such vocal members of the Constitutional Convention as Richard Spraight would never have dared to include it honestly and forthrightly.  

They would hardly have dared to include one stealthily and dishonestly by secretly inserting it in occult language into the document where it would certainly be discovered by the able opponents of that power who could read and understand its implied presence.  Spraight and many of the other ardent opponents of it were as able lawyers as the drafters who might have wanted it there.  Stupid they weren't, as a reading of the best of the anti-federalist papers proves. The opposite is claimed by its stupider supporters, who like Trump seem to be influential in direct proportion to their stupidity.  

And if they did secretly insert that power into the Constitution, it has no right, whatsoever,  to the claim to the original acceptance by "the people as a body" because it would have constituted a massive con-job played on them, a con of which only crooked  lawyers would claim was legitimate and those crooked lawyers who had been elevated on the basis of their past service to some establishment of power or other who had gained their seats on courts because of that (Roberts, Alito, Thomas, Kavanugh and Coney-Barrett are certainly examples of that).  The framers of the Constitution would be no better than the majority on the Roberts Court or the sleaziest members of earlier courts going back through the Taney Court which first used the power to nullify the personhood of Black People, enslaved and freeish, and to, in real effect, nullify the state laws abolishing slavery in their territory and the territories in which the Congress had forbidden its spread.  

Lin-Manwell Miranda and Aaron Sorkin might not tell you that, Ken Burns might be a bit more inclined to do that, though I doubt he could without endangering his funding or his virtual guarantee that his next project will get on PBS.  I expect many of his celebrity voice-artists would flee from such a project. 

But I just did tell you.  And, to my critics, I'm proud to do that. 

I will repeat the beginning of section five in case someone didn't read it and so the argument will be complete here:  I will try to resist breaking in though there is hardly a paragraph or sentence that I wouldn't like to do that, only reminding you that things have gotten far worse than they were when Boudin was writing this. 

V

Turning now from a study of the past to a consideration of the present [that present being c. 1911], 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 of the men of Massachusetts, Virginia, and Maryland, guided by Montesquieu 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 this despotism may be, or otherwise: that depends on the individuals who wield the power.  Its benevolence is also largely a matter of opinion, depending on a variety of consideration, some moral and some material. As is well known, it makes a difference whose ox is gored.  

But whatever difference of opinion there may be as to the spirit in which this power is exercised, it must be admitted by all candid students that the power itself spells despotism.  The essence of despotism is the right of the few to make the laws or to control their making, without being responsible to the people. 

I will break in here to again assert the relationship of the Supreme Court acceptance of partisan (and with that certainly Court accepted racial) gerrymandering as fatally weakening the power of a majority to exercise that vital control on even the legislature and expand that to include the very real deadening of it on the executive by the Constitutional atrocity, the Electoral College.  The deadening effect of the anti-democratic Senate in which a small rural minority of the population - and it's not even all of the rural majority states, it certainly doesn't include Vermont and sometimes doesn't my own state as well as a few others, on occasion, it is the most backward and white-supremacist inclined of them acting similarly to have the same anti-democratic effect on our federal government, often encouraged by the mass media freed by the court to lie with impunity.  Allowing the conservative dominatied Supreme Court to put its massive fist on the scale in favor of that is the history of why America has yet to fulfill the basic promises made in both the Declaration and the preamble to the Constitution. 

I will give that last  sentence again because it is the briefly stated danger that allowing the Court to nullify federal laws as succinctly put as possible, though I'll point out that I vehemently disagree with Louis Boudin's use of the term "the right of" because holding public office doesn't confer rights that don't belong to every single person, it creates responsibilities freely taken on.   Also note I have numbered the ways in which Boudin shows that the Courts after the Taney Court had opened the floodgate to Supreme Court legislating from the bench, all the previous claimed essential boundaries of such nullification of federal laws have been mowed down like the voting rights and civil rights acts of the 1870s and 1960s have been. 

The essence of despotism is the right of a few to make the laws or to control their making, without being responsible to the people.  This condition is admitted by many able and learned jurists.  They seldom employ the harsh term that I have borrowed from Justice Clifford;  but despotism retains its sting no matter what it is called. 

1.  The first restraint to go by the board was the principle that this power was of an "awful nature," as Justice Iredell expressed it, an extraordinary power to be used only on extraordinary occasions for extraordinary purposes.  

It has become an ordinary power, used by our courts without hesitation as one of their regular functions.  It is well within the truth to say that our federal and state courts now annul in one year more laws than they annulled during the first half of our national existence. 

The power is now used by every petty magistrate, and we are so accustomed to its every-day use that to speak of its "awful nature" seems like a bad joke.

2.  The next restraint to be thrown off was the principle that a law cannot be declared unconstitutional unless it contravenes some special provision of the Constitution applicable to the subject, expressly stated in the Constitution or contained in it "by necessary implication," an that neither the general protection accorded to life, liberty and property nor the so-called "spirit of our our institutions" gives sufficient cause for such annulment. 

Most of the important decisions declaring legislation unconstitutional are now rendered in violation of that principle.  The chief grounds for the annulment of legislation in recent years have been the modern doctrines of "due process of law" and of "liberty of contract."  

According to the earlier view, neither of these doctrines would have justified the courts in assuming the control over legislation which they now exercise. 

When the phrase "due process of law" was first used in this country, as part o the usual bill of rights in our state constitutions, from which it was subsequently taken over into our federal Constitution, this phrase had a well known and clearly defined legal meaning, which was the same as its literal meaning, namely, that of a procedure under general law, with proper trial or hearing. 

And it was in this sense that the phrase was used until comparatively recent times.  But now it has acquired an entirely different meanaing.  As it is now used by our courts when they declare legislation unconstitutional for contravening it, it means substantially the same thing that was meant by "natural justice,"  "principles of liberty and justice" and similar expressions in the earlier days of our constitutional history.  

Denial of "due process of law" is now discoverable in any law that requires or permits something to be done which the judges deem unjust or not in accord with the "free spirit of our institutions."

The doctrine of "liberty of contract," when used as a test of the constitutionality of legislation, is a still more glaring violation of the older rule. 

The federal Constitution nowhere mentions any such "liberty."  It is claimed, however, by our judges (in modern decisions, of course), that it is part of the liberty guaranteed in the phrase contained, in one form or another, in all our constitutions that "no person shall be deprived of his life, liberty or property without due process of law."  

Aside from the question of the meaning of "due process of law," which has just been considered, there is an additional difficulty with this particular "liberty," namely, that it was entirely unknown and undreamed of at the time we borrowed our "life, liberty and property"  phrases from English constitutional law. 

It is therefore evident that this particular "liberty" was not originally contained in our constitutions.  And in fact no such "liberty" was asserted until recent years.

When did this "liberty" get into the Constitution?  Evidently when we infused into the old words the new "spirit" of extreme individualism.  And now we declare legislation unconstitutional on the ground that it is repugnant to this "spirit," and we call this "walking in the footsteps" of our forefathers! 

3.  The rule that the violation of the Constitution myst be "clear palpable and free from all doubt" had to disappear with the other restraining rules when the express provisions of the Constitution were disregarded as a test of constitutionality of legislation and the vague "spirit of our institutions" was substituted therefore.  

The "spirit of the Constitution," the "spirit of our institutions" and the "principles of our government," which are now used as criteria of constitutionality, are in themselves empty phrases into which not only each generation but each individual puts a different content, according to his own philosophical, political and social principles. 

What Justice Iredell said of 'the principles of natural justice' is equally true of these newer principles:  'The ablest and purest men have differed on the subject.'  

In this realm nothing can be said to be "free from doubt."  

Uniformity of opinion, except among close political associates and kindred philosophical sprites, is here extremely unlikely  And so we have lived to see the power which was originally supposed to be used only in cases "clear, palpable, and free from all doubt," used almost regularly by divided courts, often by bare majorities.  And the uninitiated wonder: how is it that a provision, of which one judge emphatically asserts he is able to find no trace whatever in the Constitution, is asserted by another, and with equal emphasis to be clearly and plainly written therein?  

The reading of a few important recent decisions, such as Lochner v. New York,  Adair v. United States, People v. Williams and Ives v. South Buffalo Railway Company, will sufficiently illustrate the points just made.

These same cases will also show that we have very effectually disposed of the last safeguard against the establishment of a judicial veto upon any and all acts of our legislative assemblies by discarding the rule that the courts must limit their inquiry to the question of the existence of the power which the legislature has undertaken to exercise, and that where the power exists its exercise is beyond the judicial sphere of influence.  The courts now openly review the use made by the legislatur of its conceded powers, thus arrogating to themselves a distinctly legislative function. 

I will continue this next week as I have the last few sections of Boudin's examples because this post is already long.  I will remind you that if you want a preview of what I might say about it, you can read his 1911 article online or, if you can find it, his great 1931 work with the same title, Government by Judiciary.  

* Note: I am working on a post laying out the original claim of why that power was needed and giving case after case as to why, if that's the reason for it, it has not worked as it supporters claimed was necessary. The gap between the stated intentions of it and the actual use of it under judicial practice isn't a gap or even a chasm, neither of those metaphors are big enough to take in what they have swallowed in their usurpatious hypocrisy. If you want an example, look at the record of the Roberts Court since 2015.