Posted Without Apology No Explanation Needed

 

A Perfect Illustration Of Faulkner's Quote Provided By The Court

WILLIAM FAULKNER FAMOUSLY wrote, "The past is never dead.  It isn't even past, " in one of his decidedly lesser works,  Requiem For A Nun.  While the novella and, later, play didn't take, the line did, certainly because it so perfectly matches human experience in life.   

As I said last week in this series going over the use by conservative to reactionary to genteel racist-fascist use of the power the Supreme Court invented for itself to nullify duly adopted laws of the U.S. Congress, the entire history of the United States under the Constitution could very accurately,  and I hold far more importantly be told in terms of the struggle against the Constitution of 1787. 

From the Jeffersonian "revolution of 1800 through the abolitionist and Women's Suffrage and workers-rights movements, other movements to demand and all too temporarily win some measure of equality - what the great Reese Waters calls "freeish" only to have the Supreme Court mow down the decades and scores of years and centuries of struggle and progress, in almost every case for exactly those whose privilege to enslave, cheat, rob and oppress was either embedded in the Constitution from the start or it was read into it by courts and at times presidents and congresses - it would be interesting to study what the "textualist-originalist-BS flinging "justices" have done when those presidential and legislative inventions favor the wealthy, white supremacist, etc. as opposed to when those oppose the interests of the elites but my time is short.

In the footnotes included in my last post in the continuing series going through Louis Boudin's 1911 analysis of the history and legal arguments against the Marbury power grab by the Supreme Court was one for the 1905 book, The American Judiciary by Simeon E. Baldwin.  In it he gives a partial list of the federal laws which up to that date had been overthrown under the Marbury power the Court gave itself.  It's a good illustration of the use to which the Court has put that power once the Taney Court burst the dam holding it back in the Dred Scott decision.  I have reproduced what he said, verbatim, though I have changed his format for ease of reading.  

 The number of statutes which have been judicially pronounced in whole or part invalid in the United States is very large. Among the Acts of Congress which have fallen in this manner and have been made the subject of elaborate opinions may be mentioned the provision in the original Judiciary Act giving the Supreme Court of the United States greater original jurisdiction than the Constitution provided (the Marbury case); 

-  the Act of 1865, excluding from practice in the United States courts attorneys who could not take the  "iron-clad oath" that they had not supported the South in the Civil War;
 

- the Legal Tender Act of 1866;
 

-the Act of 1870, to protect the colored voter;
 

- the Civil Rights Act of 1875 ;  

 

- the Trade Mark Act of 1876;
 

- and the Income Tax Act of 1894.
 

Fifteen others of less importance have fallen by the same sword. 

The Supreme Court of the United States has also set aside in the same manner, as inconsistent with the Constitution of the United States, over two hundred statutes passed by States. 

Of the twenty-one acts of Congress thus declared unconstitutional, the decisions as to all but two were rendered after 1830; of the State statutes all but twenty-six. The fourteenth amendment has added largely to the list of the latter since its adoption in 1868.  

 

Maybe you can see that even someone like Baldwin who, on balance, defends the Marbury power grab has noted the fate of probably the most important of Constitutional Amendments in the history of the country when the "interpreting" Court gets hold of them.  

Since it's a perfect illustration of the implications of Faulkner's quote in regard to how the Supreme Court has been the reliable nullification of hard fought for progress towards equality - including in the Civil War and the great and extremely long post-bellum civil rights struggle -  I will present an official view of one of those cases,  the Civil Rights Act of 1875

 Here, from the US Senate website, until the Republican-fascists - never to be confused with the Radical Republicans of Charles Sumner's generation - take it down for, you know "DEI."  

Civil Rights Act of 1875

Radical Republican senator Charles Sumner of Massachusetts introduced the Civil Rights Act in 1870 as an amendment to a general amnesty bill for former Confederates. The bill guaranteed all citizens, regardless of color, access to accommodations, theatres, public schools, churches, and cemeteries. The bill further forbid the barring of any person from jury service on account of race, and provided that all lawsuits brought under the new law would be tried in federal, not state, courts.

Sumner predicted that the Civil Rights Act would be the greatest achievement of Reconstruction. “Very few measures of equal importance have ever been presented,” he proclaimed. Unfortunately, Sumner did not live to see the fate of his bill. He died of a heart attack in 1874—just 63 years old. “Don’t let the bill fail,” the dying Sumner pleaded to Frederick Douglass and others at his bedside. “You must take care of [my] civil rights bill.”

In the months following Sumner’s death, Congress debated the bill. As another Republican senator from Massachusetts, George Boutwell, explained, the Reconstruction amendments (Thirteenth, Fourteenth, and Fifteenth amendments to the Constitution) “did limit the power of the States; they did extend the power of the General Government,” but lawmakers in Washington failed to agree on how far the power of the federal government should be extended. After long and at times heated discussions on the Senate floor, the bill’s supporters agreed to drop one of the more contentious components of the bill, which would prohibit segregation in public schools. Another contentious debate in the Senate centered on the question of whether or not Congress had the constitutional right to define the composition of juries selected for state courts.

The Senate brought the bill to the floor for a vote in late February 1875. Perhaps as a last gesture of respect for the departed Charles Sumner, for whom securing civil rights had been a lifelong pursuit, the Senate passed the bill with a vote of 38 to 26 on February 27, 1875. The bill became law on March 1, 1875. The new law required: “That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” The second section provided that any person denied access to these facilities on account of race would be entitled to monetary restitution under a federal court of law.

The Supreme Court declared the law unconstitutional in 1883. In a consolidated case, known as the Civil Rights Cases, the court found that the Fourteenth Amendment to the Constitution granted Congress the right to regulate the behavior of states, not individuals. The decision foreshadowed the 1896 Plessy v. Ferguson decision in which the Court found that separate but equal facilities for blacks and whites were constitutional.

Not only has the Roberts Court replicated what the Court did in the infamous Plessey case, it is replicating what an even earlier court did to enforce American apartheid, which existed well before South Africa's infamous system gave it that name.   The Roberts Court has gone far past those 19th century Courts, however, in so many other areas.  They're overturning everything they can in an obvious attempt to destroy equality, democracy and, as I pointed out, even a republican form of government, in as baldly partisan a manner as could possibly be undertaken by a corrupt Congress or President.  In fact, they have done exactly what the most corrupt President and Congress in our history have asked it to do, especially in the Trump v. USA case in which they agreed with the outrageous claims of John Sauer which the lower court deliniated in the most revealing way possible.  They are no more a guarantee against the kind of tyranny that the Marbury power was allegedly invented to prevent, THEY ARE DOING EXACTLY WHAT THAT POWER WAS ALLEGEDLY THERE TO STOP WHEN IT WAS IMAGINED THE CONGRESS MIGHT DO IT.