Thom Hartmann: Democratic Underground Readers are Wrong on SCOTUS

[thomhartmann]

45. You're suggesting only 9 wise men can "save women"

which I'd challenge - and so would Jefferson.

Roe v. Wade was arguably a good decision, just like Brown v. Board, but it came 13 years after the FDA legalized birth control pills, and if SCOTUS hadn't done it, Congress would have within a few years. The times were changing. This is just one example of SCOTUS being a few years ahead of the representatives of "we the people."

It wasn't SCOTUS that ended segregation - that started a century earlier, reached climax in the 1950s - Eisenhower integrated the military, remember - it was already underway - and hit its peak in the 60s when the First Branch, the legislature, passed civil rights laws.

The idea that we need 9 unelected "wise people" to save us from ourselves is the same logic that sustained kings and queens in Europe for millenia. And it's - IMHO - wrong.

Keep in mind, our deference to these guys also brought us Dred Scott, which led to the bloodiest war (per capita) in American history - the Civil War. And in Brown, they were simply reversing *their own* decision in 1898 in Plessy v Ferguson. SCOTUS brought us nearly a century of legal segregation. SCOTUS - from Dartmouth to Santa Clara County to Buckley to First Nat'l Bank to Citizens United - *created out of whole cloth* the doctrines of "corporate personhood" and "money is not property, it's speech" - both of which have been expressly rejected - repeatedly - by both Congress and over a dozen presidents.

As Jefferson said, about the 1803 Marbury v Madison case in which Chief Justice John Marshall (Jefferson's 2nd cousin and sworn political enemy, which is why John Adams appointed him CJ on his way out of office, as a final FU to Jefferson) took onto the court a power not given them in the Constitution:

I wrote this in "Unequal Protection" by way of background for my thinking: (http://truth-out.org/index.php?option=com_k2&view=item&id=735:unequal-protection-the-early-role-of-corporations-in-america)

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But the states, as Charles and Mary Beard write in The Rise of American Civilization, “had to reckon with the Federalist interpretation of the Constitution by John Marshall, who, as Chief Justice of the Supreme Court of the United States from 1801 to 1835, never failed to exalt the [pro-business] doctrines of Hamilton above the claims of the states.”19

Marshall, appointed to the Court by Federalist John Adams (who had appointed—for life—only Federalists to all federal judgeships), was what would today be called a judicial activist. As the Beards wrote, “By historic irony, he [Marshall] administered the oath of office to his bitterest enemy, Thomas Jefferson; and for a quarter of a century after the author of the Decla- ration of Independence retired to private life, the stern Chief Justice continued to announce old Federalist rulings from the Supreme Bench.”

In 1803, during the second year of Jefferson’s presidency, Marshall took on a power for himself and future Supreme Courts that made President Jefferson apoplectic. In the Marbury v. Madison case, as the Beards relate it,
Marshall had been in his high post only two years when he laid down for the first time in the name of the entire Court the doctrine that the judges have the power to declare an act of Congress null and void when in their opinion it violates the Constitution. This power was not expressly conferred on the Court [by the Constitution]. Though many able men had held that the judicial branch of the government enjoyed it, the principle was not positively established until 1803 [by Marshall’s ruling in this case]...
Jefferson, shocked, bluntly expressed his concern to his old friend Judge Spencer Roane, the son-in-law of Patrick Henry and a justice of the Virginia Supreme Court:

If this opinion be sound,” Jefferson wrote, “then indeed is our Constitution a complete felo de se [legally, a suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, 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...."

Jefferson continued in full fury,

"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. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. 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....

"A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [an error or blunder], at least in a republican government."20

In his decision putting the Supreme Court above the elected officials (the legislature and the president), Marshall was echoing Hamilton’s Federalist mistrust of any form of government constrained solely by those elected by the people. Kings had faced challenges, the Federalists argued, and fought back because as kings they could force decisions without having to wait for a consensus by the people. This powerful federal judiciary, only partially answerable to the people, the Federalists believed, was essential to the survival of the nation.

Madison, an ally of Jefferson, in the Federalist Papers (No. 39) wrote: “It is ESSENTIAL [capitals Madison’s] to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.”22

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Finally, I rest my case with SCOTUS's Bush v. Gore, in which the 9 kings and queens - er, SCOTUS - ruled (read it!) that George W. Bush would be "irrevocably harmed" if the recount of the vote in Florida that had been ordered by the FL Supreme Court was allowed to continue.

SCOTUS should be the third among equals, not the lord over the other two branches of government. And, as Article 3, Section 2 says, shall operate "under such Regulations as the Congress shall make."

And "We the People" - by voting in or out our elected representatives based on their voting records - should be (absent SCOTUS's Citizens United) the first AND final arbiters of constitutional law - and first and final protectors of the rights of all minorities...

Thom