OK, I'M GOING TO SAY IT so you'll understand it.
The ONLY honest telling of American history under the Constitution is the struggle of those left out of the Constitution to pry from an unwilling privileged few what the Declaration of Independence promised them as their God-given rights, the rights which any legitimate government delivers equally to "All Men" - that is All PEOPLE - or it is an illegitimate government legitimately overturned by The People for one which does.
I mentioned the original success in that history of struggle against the Constitutional order set up in 1787, the very partial, very incomplete "Revolution of 1800" that overthrew the original Federalist establishment which had governed the country before then. That is especially on my mind because Jefferson's letter to Spencer Roane, September 1819, in which he talks about his election as a "revolution" is also highly germaine to my series about the usurpation of the Supreme Court that sets it over the elected government. In that letter he said:
DEAR SIR,—I had read in the Enquirer, and with great approbation, the pieces signed Hampden, and have read them again with redoubled approbation, in the copies you have been so kind as to send me. I subscribe to every title of them. They contain the true principles of the revolution of 1800, for that was as real a revolution in the principles of our government as that of 1776 was in its form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people. The nation declared its will by dismissing functionaries of one principle, and electing those of another, in the two branches, executive and legislative,
But that revolution was made by white men on behalf of white men, led by slave holders, "planters," whose planting was done by Black People held in slavery. That they held a broader view of those who should vote and hold the government on behalf of the many rural farmers, what Jefferson called "yoemen" didn't do much for anyone else who had to live under the government they didn't elect but which dominated the country and made its laws.
The real revolution that Jefferson boasted about took the abolitionist struggle, the Civil War and the passage of the Civil War amendments and passage of laws such as were included among those the Supreme Court had nullified, the law protecting the rights of Black men to vote and the Civil Rights Act of 1875.
But, as I noted in quoting that passage from Simeon Baldwin's 1905 book about the judiciary, those laws and much of the changes made as a result of the slave-power losing the war, handed victory to white supremacy through Supreme Court nullification of those laws.
It took almost ninety years to win back what was previously won through the most terrible domestic war in our history and the defeat of THE LAWS that permitted slavery as exended in the Dred Scott decision where the law said it could not go. And that Civil War era progress was then nullified by the "justices" on the Court - the same Court that had declared less than a quarter of a century before those laws were overturned ruled that Black People were not citizens and could not bring a suit in a federal court, it took until the mid 1960s for a new Voting Rights and Civil Rights act to be made laws during an all too brief period when the Supreme Court was not on the side of white supremacy, a rarity in the history of the Supreme Court and as the Roberts Court has shown, not a permanent situation.
How long it will take for the next Voting Rights and Civil Rights Acts to be made law, is anyone's guess. I will note that, especially, in overturning Voting Rights, the Roberts Court hasn't just overturned the original 1960s Congress and President Johnson who pushed it through to be enacted as law, they were overturning the Congress that, by a larger, bi-partisan majority reauthorized it and the Supreme Courts that had held it to be valid and binding federal law. I will predict that when a Congress and president who hold with equal rights passes a new one, the greatest danger to it will, again, be the Supreme Court acting under the Marbury power it invented for itself.
That role of the Roberts Court played was hardly new even in 1883 when the Court nullified the first Civil Rights Act, in the same letter that Jefferson wrote bragging about the revolution brought about through his election continued, referring to the Court starting c. eight decades earlier:
Over the judiciary department, the constitution had deprived them of their control. That, therefore, has continued the reprobated system, and although new matter has been occasionally incorporated into the old, yet the leaven of the old mass seems to assimilate to itself the new, and after twenty years’ confirmation of the federal system by the voice of the nation, declared through the medium of elections, we find the judiciary on every occasion, still driving us into consolidation.
Among the reforms that Jefferson, Madison et al attempted in the "revolution of 1800 was the break up of consolidation of power to the federal government at the cost of the state governments, which is what I believe Jefferson meant by complaining about "the judiciary on every occasion, still driving us into consolidation."
He is more explicit as to the Court's role in nullifying progress towards equality (and in many other ways) in the next paragraph. (Note, I'm giving you his words verbatim but changing the format for ease of reading and emphasis.
In denying the right they usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se.
"Felo de se" means suicide. In case you think I'm guilty of jazzing up my descriptions in this matter. His entire letter is interesting as an example of the problem with the Marbury power grab (he mentions it by name*) and, in fact, with the scheme of "balanced powers" and the meaning of the Constitution as written.
For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone [the Supreme Court], the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.
For experience has already shown that the impeachment it has provided is not even a scare-crow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment.
The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.
It is certainly worth noting here that the Congress that passed those original, post-Civil War voting and civil rights acts were full of those who had fought that war instigated by those who wanted to maintain slavery against whom those who fought for the Union had that as, certainly, their strongest motivation.
And it is certainly worth completing the thought by noting the Congress that passed the 1960s Civil Rights and Voting Rights acts and the president who pushed for their passage and signed them into law, had fought WWII against the Nazis, the Italian Fascists and the Japanese Imperial regime. They were witness to the consequences of inequality in ways that the generation that followed them were not. It turns out my generation and, perhaps in ever decreasing form till now, did not have the same "spirit up" but in regard to the ideal of equality, without witness to that same consequence of its absence, felt free to "relax." Though I will note that propaganda in the form of "news" and, far more effectively, entertainment which more people consumed, had a lot to do with that relaxation into the habits of white supremacy which are never far from the surface. That it is the slave-holder Jefferson who has given me this motivation to point that out is certainly a huge irony but that doesn't make it any less valid.
Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. [though, as can be seen over and over again, when propagandized they have every inclination to ignore moral law. Look at the Old Testament for deailed examples].
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. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.
I'm not giving Jefferson's conception of the Constitution as one we should adopt going forward, or any other except to say that any one which doesn't have EQUALITY as its first principle is bound to devolve into unequally held, allowed and exercised freedom. Equality is the true bedrock of legitimate government, one in which the "just consent of the governed" is what determines the government to be and what gives its laws their real character. To say that something in the Constitution does that is absurd. Scripture talks about moral Law being written on the Peoples' hearts making written laws unnecessary. Without that, no human institution, including the U.S. Constitution is anything put a pause before it all goes to hell and there is nothing like lawyering to speed that process.
And what can be said about the constant nullification of progress towards justice for Black People and other People of Color can be said about Women, workers, about other groups who have been subject to inequality and injustice for our entire or part of our history. The Supreme Court is not a reliable champion of equal rights and are frequently the enemies of justice. They are far, far more often the implacable and domineering enemies of them.
* He gives several examples from when he was president, which are extremely interesting, here is where he mentions the Marbury power grab by the Court.
A legislature had passed the sedition law[ John Marshall was Secretary of State then]. The federal courts had subjected certain individuals to its penalties of fine and imprisonment. On coming into office, I released these individuals by the power of pardon committed to executive discretion, which could never be more properly exercised than where citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the constitution, and therefore null. In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions. They cannot issue a mandamus to the President or legislature, or to any of their officers.
Such was the mole hill on which the Supreme Court built its invention that, as Jefferson predicted, has dominated the entire history of the country, most often for privilege against justice, for privilege against equality. Now giving us a king.
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