YOU'RE RIGHT, I DON'T RECALL anyone else who has pointed out what is plainly obvious in the terms I have put it, that we aren't actually governed by the written Constitution but by whatever the sitting majority on the Supreme Court says the constitution is. It has been implied by a number of people but I think I've put it plainly.
The members of the Court have shown, over the past two-hundred twenty-three years that they are willing and ready and - with the cowardly acquiescence of presidents and congresses - able to amend the actual constitution by fiat, to give themselves powers not contained in it, to delete parts of it, to expand it in ways not written or found in the legislative record of either its writing or amending by congresses and state legislatures. And it is only when those actions have served to expand equality, economic and social justice, the fair exercise of the Vote that those actions have proven fragile and easily vulnerable to overturning by later courts. The ones upholding privilege, inequality and injustice have proven to be evergreens from the Waite Court up to the Roberts Court.
As it turns out the ideals of egalitarian democracy are thwarted by liberal democracy and the ruins of it we live in, it is not nearly as powerful as the slogans of the old and new lefts would have had it.
With that usurped power the members of the Court gave themselves both the legislative power to overturn or reject duly adopted laws and the presidential power of an absolute veto - one which, unlike the one given to the elected president who serves for no more than eight years or the members of Congress who are elected and have to face the voters in the written document - the Congress cannot overturn by a super-majority vote. And the "justices" are in no real danger of impeachment by the Congress and, especially, conviction in the Senate and they never, ever have to face the Voters. They exercise their absolute power with absolute impunity.
I would argue that they have, though somewhat more rarely, given themselves the power to make laws that were never voted on by Congress or signed by a president. Though that would take some time I will not take today.
Under the Marbury power even the near impossible resort of amending the Constitution isn't a safe guarantee against the Supreme Court's absolute powers because they have proven over and over again that if the majority does not like something in the written Constitution they will, effectively, amend it or abridge it or annul it. Again, look at what they have done with the 14th Amendment and others in order to achieve the results that the majority of generally conservative, often aristocratic members of that Court want. I could add, they are generally racist and favoring of the super-rich of the kind who they not infrequently had as patrons guiding their path up to and on to the Court. That's systematic under the Leonard Leo type operation which has staffed the current Roberts Court.
And five or six members of the currently sitting Court have no problem overturning even what dozens or scores of previous members of Supreme Courts, some of them far more eminent thinkers and scholars of the law than they are.
With the Supreme Court claiming its SOLE authority to "interpret" the Constitution of the United States, and under the history of it doing that, including its usurpation to nullify duly adopted Congressional law, we aren't governed by the Constitution printed on paper, amended several times and which rather stupidly makes amending it even under dire necessity almost impossible.
You won't hear many others admitting those obvious and terrible facts about what actually governs us now.
Though the unitary executive form of fascism which the Roberts Court has now made the law of the land - even as the actual Constitution on paper AND THE EXPRESS INTENT OF THE MAJORITY OF THOSE WHO WROTE IT WAS IN OPPOSITION TO SUCH A DESPOTIC REGIME - may come back to bite the Court as much as it has bitten all but the oligarchs whose bidding they regularly do. As I noted, the Court packing scheme and syndicate put in place to staff the current Court has produced the stupidest Court in our history. They never thought those Leonard leopards would eat their faces.
Though I doubt it will be the Republican-fascist majority in Trump v USA who have anything to worry about in that regard. They are, first and foremost, dedicated to their own self protection by serving the elites. And they're well paid for doing that.
As mentioned a number of times in this series of posts, as early as 1819 Thomas Jefferson noted that under that usurped power which had not really been exercised in any consequential way by the Court during his lifetime,
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.
Which proved to be prophetic because that is what Supreme Courts started doing in 1857 with Dred Scott and which they have increasingly done in the subsequent decades and centuries since then. Though the Court had proven it was fully capable of doing the same thing with laws earlier, again, Marshall's effective nullification of the Congresses ban on the importation of slaves - a power expressly given to them after twenty years in the original Constitution - in the Antelope case proved that the Court's power was already consequentially dangerous in the hands of the slave power and other oligarchs.
Despite what you will see when a Senator or House Member holds up their flimsy little pocket copy of it, the truth is that the written Constitution of the United States is a mythical idol, at least in terms of what can honestly be said to govern us because in the actual governance of the county it is only what the Supreme Court says it is in their own decisions and, especially as practiced in the unofficial shadow docket by the Roberts Court, WHAT LOWER, RIGHT-WING, REPUBLICAN-FASCIST DOMINATED LOWER COURTS SAY IT DOES.
Not only are we living under a "government by judiciary" with an actual constitution which is whatever the sitting court majority says it is - as that practice has increasingly been through such "shadow docket" practices of the Roberts Court, we have no actual record on which to base a real analysis of the legitimacy OR ILLEGITIMACY of what that real instead of merely paper constitution is.
A few years back I posted a video by the British commentator Phil Moore in which he said why he thought the British Constitution, which is unwritten, made up largely of court rulings, was superior to the American written Constitution. Even as late as that I had not faced the actual fact of our real constitution being made up of a similar bundle of court cases - though in our case it has been a series of malignant rulings by right-wing Supreme Courts and, from what I can see here, I'm not all that impressed that the British one gives better results. Though even today's worst judges in Britain would not be as stupid as an Alito and his colleagues in the Dobbs decision basing the government regulation of Women's bodies on rulings by late medieval judges who sentenced Women to death as witches - our current Court is one of the stupidest on record.
------------------------------
It would be entirely more sound government if the sworn allegiance of office holders, House members, senators, presidents and Supreme Court "justices" (in rising order of power) was not to the idol, the "constitution" but, rather, to the principles of equality, equal justice, democracy and majoritarian governance.
Though, as with all such oath taking, I wouldn't trust them reciting those words with their hand on a library of Bibles to actually be what governs their actions in office. If I had the time I'd count the ways in which those who took those oaths violated them unambiguously, I suspect such a study could consume a lifetime of work and not be complete.
The written Constitution is more than ever like what John Quincy Adams wrote in his diary February 19, 1845;
The Constitution is a menstruous rag, and the Union is sinking into a military monarchy to be rent asunder like the Empire of Alexander or the kingdoms of Ephraim and Judah.
Considering the framing of the Constitution was largely done under the imagination and influence of his father, John Adams, it must have been especially bitter for his son, who had been an office holder making such oaths, as president and a member of the House, to have come to that conclusion.
That was, as well, prophetic, and it took the first significant Court use of the Marbury power, the Dred Scott decision of the Taney Court, to instigate that rendering asunder of the Union. I won't to into the Court nullification of laws and amendments to try to protect what the Civil War overthrew, though that is what brought us here to our current crisis. I would not be surprised if the decision in Trump v USA had a similar effect in the fullness of time. Especially if the Roberts Courts' election rigging actions keep their party in power in the rest of the government.
NOTE: I know I use the same quotations and passages repeatedly but that's because they turned out to be so predictive of what happened and the eminence of those who said them may make them more effective than some academic scholar writing after the consequences they predicted happened. As such, their thinking is unassailable because it was confirmed in history. Jefferson, Lincoln, John Q. Adams turned out to be right when they addressed these issues, the likes of James Wilson, John Marshall, Simeon Baldwin, et al were full of shit.
No comments:
Post a Comment