What If The Court Issues Two Contradictory Rulings?

I HAD INTENDED by now to continue with my ever longer second series attacking the Marbury power that the Supreme Court inserted into what they, thereby, made the real constitution of the United States but will put most of that off till after the election.   That is if my health allows me to continue it.   

Generally, in the history of the defense of that usurpation of powers that appears in no way in the written Constitution which is made ever more moot under Supreme Court distortion begins with the framer and early Supreme Court "justice" James Wilson, noted as among the most brilliant lawyers of his generation who, however, ended up fleeing the law by riding the court circuit to avoid his creditors and debts due to his speculation in Western land, one of the several ways in which the framers and founders and early generation of American aristocrats tried to get rich and then richer. 

His excuse for asserting that there was such a power came from speculations as to what would happen if the legislature (and executive) made two laws that contradicted each other and a case came to the Court which forced the judges and "justices" to choose between them.   

Wilson somewhat dishonestly reframes largely theoretical problems.  Theoretical in that he hasn't presented any cases in which his theoretical problem by which he claims the power of the Court to reject duly enacted laws made by the American Congress and,  I will bet you such a hypothetical has never been the actual case in which the Supreme Court has exercised the power he called for and which his colleague John Marshall and THREE OTHER "justices" CREATED.  In the cases I've seen listed as having been decided under the Marbury power,  I can't think of one in which contradictory laws by the Congress was what had to be decided. 

His resort to giving the U.S. Supreme Court the power to legislate "natural" and that should be, even in Wilson's context, meant to imply law given by God through revelation, and, on top of that citing the Constitution - at that time a written document which the Court hadn't much remolded to suit itself - IN WHICH NO SUCH POWER IS AMONG THE MANY POWERS DELEGATED TO THE VARIOUS DEPARTMENTS OF THE GOVERNMENT.   And there was certainly every reason to believe if such a power were included it would have become a point against which a good many of those who were called on to ratify it would reject.   The legislature was at least partially directly elected by the popular vote, the "justices" were not and given the general experience of "justice" under the law in the absence of the ability to vote those who wielded power out of office when it came to the "justices" and judges,  a significant number of We the People would be skeptical of them wielding that power. 

As Wilson stated a principle under which Courts would have a perfectly sound means of choosing between two such laws - that the more recent one would rationally be taken to nullify an earlier one at cross purposes to it - you have to wonder at him not leaving it at that.   That would put the responsibility for making laws where the written Constitution did, with the legislature, and it would not result in a usurpation of the legislative process by the Court.   And, if as it turned out, the legislature didn't like that result, it could, ITSELF NULLIFY THE LATER LAW.    As it turns out THAT IS EXACTLY WHAT THE SUPREME COURT ITSELF HOLDS ABOUT ITS LAW MAKING FROM THE BENCH BY UNELECTED "justices" AS CAN BE SEEN IN CASES SUCH AS ROE V WADE.  

But the question that Wilson posed in the abstract about contradictory laws enacted by the Congress has, in the fullness of time, given rise to many concrete examples of the Supreme Court, sometimes by a paltry majority of a current court overturning rulings made by multiple Courts with many times more "justices" confirming the validity of those laws - and not in any way due to contradictory acts of Congress.   The Roberts Court nullification of the Voting Rights Act,  previous courts nullifying large swaths of the 14th Amendment by, in very real and consequential effect, rewriting it from the bench, not subject to presidential veto or the ability of the Congress to nullify the Court's LEGISLATIVE ACTION.    Why are those not an even greater problem for the law, the Constitution, the governance of the United States than Wilson's largely imaginary hypothetical puzzle for judges and "justices?"  

Here's a fuller version of the often quoted argument that is taken as the start of the argument in the American context.   Starting on page 769 of the Pdf.  I have made paragraph breaks where the original didn't for ease of reading. 

Suppose two such repugnant laws to be produced in the same cause, before the same court: what must it do? It must control one, or obey neither. In this last instance, the remedy would be worse than the disease: but there is not the least occasion to have recourse to this desperate remedy. The rule which we have cited from the Commentaries, shows the method that should be followed. In the case supposed, the fi st law is repealed by the second: the second, therefore, is the only existing law.

Two contradictory laws, we have seen, may flow from the same source: and we have also seen, what, in that case, is to be done. But two contradictory laws may flow likewise from different sources, one superiour to the other: what is to be done in this case ?

We are informed, in another part of the Commentaries, that, “on the two foundations of the law of nature, and the law of revelation, all human laws depend; that is to say, no human laws should be suffered to contradict these”—“that, if any human law should enjoin us to commit what is prohibited by these, we are bound to transgress that human law, or else we must off end both the natural and the divine.

What! are we bound to transgress it?—And are the courts of justice forbidden to reject it? Surely these positions are inconsistent and irreconcilable.

I have to break in here to point out that judges and "justices" constantly transgress "the law of nature" and, even more so, "the law of revelation"  American judges and "justices" are certainly constantly violating the Mosaic Law and the Commandments of the New Testament.    The line of American law dealing with slavery was certainly in complete transgression of the Law of Moses which would have freed slaves and prevented escaped ones being returned to slavery.  

And I will note that Wilson's and, far more so, Marshall's resort to solving that hypothetical problem constantly transgresses the written Constitution which contains no power for them to nullify acts of Congress.   He was a lawyer, after all, a very successful one and in general you prosper at that profession the more opportunistically you lie and trim the truth. 

If lawyers don't like that many of us notice how much their profession is based on lying, that's certainly not our fault. 

But to avoid the contradiction, shall it be said, that we are bound to suppose every thing, positively and plainly enacted by the legislature, to be, at least, not repugnant to natural or revealed law? Th s may lead us out of intricate mazes respecting the omnipotence; but, I am afraid, it will lead us into mazes equally intricate and more dangerous concerning the infallibility of parliament. This tenet in the political creed will be found as heterodox as the other.

And his answer was to transfer that "infallibility" to the unelected Supreme Court.  There is nothing more hetrodox in the current, post-Marbury American system than that very power. 

“I know of no power,” says says Sir William Blackstone, “which can control the parliament.” His meaning is obviously, that he knew no human power sufficient for this purpose. But the parliament may, unquestionably,  be controlled by natural or revealed law, proceeding from divine authority. Is not this authority superiour to any thing that can be enacted by parliament? Is not this superiour authority binding upon the courts of justice? When repugnant commands are delivered by two different authorities, one inferiour and the other superiour; which must be obeyed? When the courts of justice obey the superiour authority, it cannot be said with propriety that they control the inferiour one; they only declare, as it is their duty to declare, that this inferiour one is controlled by the other, which is superiour. They do not repeal the act of parliament: they pronounce it void, because contrary to an overruling law. From that overruling law, they receive the authority to pronounce such a sentence. In this derivative view, their sentence is of obligation paramount to the act of the inferiour legislative power.

In the United States, the legislative authority is subjected to another control, beside that arising from natural and revealed law; it is subjected to the control arising from the constitution. From the constitution, the legislative department, as well as every other part of government, derives its power: by the constitution, the legislative, as well as every other department, must be directed; of the constitution, no alteration by the legislature can be made or authorized. In our system of jurisprudence, these positions appear to be incontrovertible. The  constitution is the supreme law of the land: to that supreme law every other power must be inferiour and subordinate.

Again, there is nothing among the many delegated powers listed in the Constitution that gives the Court the power Wilson claimed for it.   Marbury was the first and most extensive power usurpation in American history and it was done entirely without any vote of the legislature, the signature of a president or the acceptance of it in a general referendum.    It is the supreme usurpation of power OVER THE CONSTITUTION, ITSELF.   And the Supreme Court has, ever since Dred Scott, altered the Constitution often by a split vote, sometimes fewer than a half dozen "justices" drastically altering the document as it really is. 

Now, let us suppose, that the legislature should pass an act, manifestly repugnant to some part of the constitution; and that the operation and validity of both should come regularly in question before a court, forming a portion of the judicial department. In that department, the “judicial power of the United States is vested” by the “people,” who “ordained and established” the constitution. The business and the design of the judicial power is, to administer justice according to the law of the land. According to two contradictory rules, justice, in the nature of things, cannot possibly be administered. One of them must, of necessity, give place to the other. Both, according to our supposition, come regularly before the court, for its decision on their operation and validity. It is the right and it is the duty of the court to decide upon them: its decision must be made, for justice must be administered according to the law of the land. When the question occurs—What is the law of the land? it must also decide this question. In what manner is this question to be decided? Th e answer seems to be a very easy one. The supreme power of the United States has given one rule: a subordinate power in the United States has given a contradictory rule: the former is the law of the land: as a necessary consequence, the latter is void, and has no operation. In this manner it is the right and it is the duty of a court of justice, under the constitution of the United States, to decide.

One of Wilson's claims, that a court can have a "right" to do something is a defect related to the refutation of artificial entities having rights that I made last week.   The grave danger of that formulation is that no holder of any office, NO NOT EVEN ONE OF THE SECULAR GODS OF THE SUPREME COURT, has any additional "right" that the commonest person living in the United States or anywhere else has.  Office holding doesn't create rights it bestows responsibilities on the person who willingly takes on that office.   To hold otherwise is the beginning of dictatorship, in the modern context, and the kind of monarch that Henry VIII was - Wilson notes his despotism elsewhere in his lectures.   Until we get rid of such notions as courts or congresses and presidents, for that matter, having more rights than anyone else, they will believe they have them and make law such as in Trump v USA that makes those the law of the land.  

If you want to give Wilson the benefit of the doubt - which I don't - he could hardly have foreseen where his proposed power of judicial "review" (it's really power of "rewrite" and legislation) would lead by 2026, in which the Roberts Court has nullifed rights upheld by many previous courts,  legalized quid-pro-quo corruption of the country and made the president an absolute monarch immune from prosecution - Wilson was certainly callow enough to imagine that the impossible to reach conviction of an impeached president would not prove to be a fairy tale.  

We don't have to depend on the thinking of James Wilson or John Marshall or Roger Taney or any previous lawyers living in other times,  we have the spectacle of just our recent history to base our judgments of the dangers of the Marbury power on and it is destroying equality, democracy and the lives of many of us.    The idiocy of a written Constitution which proves impossible to basically reform through amendment is that it forces us to NEVER LEARN FROM EVEN THE HARDEST LESSONS OF HISTORY,  even our lived experience.   But that idiocy of the real and UNwritten constitution that actually governs us, the product of Supreme Court fiat is even greater than that.