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America's Supremes: Court Over Constitution

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America's Supremes: Court Over Constitution
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On October 13, 1932, in laying the Supreme Court Building's cornerstone, Chief Justice Charles Evans Hughes said: "The Republic endures and this is the symbol of its faith." The words "Equal Justice Under Law" adorn its west facade. Facing east is the motto "Justice, the Guardian of Liberty." Since the Court's 1789 establishment, these words belie its decisions, arguments, and "supreme" allegiance to power, not "We the people."

Since its founding, privilege always counted most in America. The prevailing fiction then and now is that constitutional checks and balances restrain government, the founders having created an egalitarian country free from wealth and poverty extremes common most elsewhere.

Like today, wealthy 18th century colonialists had vastly disproportional land holdings; controlled banking, commerce and industry; assured its own ran the government and courts; and the supreme law of the land, then and now, deters no president, sitting government, or Supreme Court from doing what they wish.

From inception, America was always ruled by men, not laws, who lie, connive, misinterpret and pretty much do what they want for their own self-interest and powerful constituents. In 1787, "the people" who mattered most were elitists. The American revolution substituted new management for old. Everything changed but stayed the same under a system establishing:

  • the illusion of democracy; today the best one money can buy; even "better" now with unfettered corporate spending and two-thirds of federal judges from or affiliated with the extremist Federalist Society (FS); it advocates rolling back civil liberties; ending New Deal social policies; opposing reproductive choice, government regulations, labor rights and environmental protections; and subverting justice in defense of privilege; current SCOTUS members from or affiliated with FS include Chief Justice John Roberts, Samuel Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas;
  • a powerful chief executive at the top; a virtual dictator in times of war;
  • a bicameral Congress with a single senatorial member able to thwart the will of the majority;
  • a committee system run by power brokers;
  • one vulnerable to lobbyist interests;
  • staggered elections to assure continuity;
  • a one-party state with two wings, vulnerable to corruption; and
  • a separate judiciary with power to overrule Congress and the Executive, and at times does.

The Constitution's "We the People" opening words are meaningless window dressing. So is Article I, Section 8 stating:

"The Congress shall have power to....provide for (the) general welfare of the United States" - the so-called welfare clause applicable also to the Executive and High Court.

The record shows otherwise - decades of permanent wars, repressive laws, rampant crime, unsafe streets, injustice, political corruption, dishonest police, racketeering labor officials, corporate fraud, raging unaddressed social problems, rare efforts to change things, and since the 1970s, virtually none.

The notion of "government of the people, by the people and for the people" is bogus on its face. People don't govern directly or through representatives. They are governed by the rich and well-born, movers and shakers, wheeler dealers, power brokers, a Wall Street crowd looking after themselves at the expense of most others. It's how America always worked, including the High Court, established under the Constitution's Article III stating:

"The judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

Congress is explicitly empowered to regulate the Court, but, in fact, the Court often controls Congress, freely using what's called "judicial review," even though it's unmentioned in the Constitution and the founders didn't authorize it.

The concept derives from Article VI, Section 2 saying the Constitution, laws, and treaties are the "supreme Law of the Land" and judges are bound by them. Also from Article III, Section 1 saying judicial power applies to all cases, implying judicial review is allowed. Under this interpretation, appointed judges literally have power to annul acts of Congress and presidential decisions - though nothing in the Constitution explicitly allows this.

The famous 1803 Marbury v. Madison decision was defining. As articulated by Chief Justice John Marshall, it established the principle of judicial supremacy, meaning the Court is the final arbiter of what is or is not the law. He set a precedent by voiding an act of Congress and the President, and put a brake on congressional and presidential powers - except that Executives are only constrained to the degree they wish, able to take full advantage of Article II, Section 1 stating:

"The executive power shall be vested in a President of the United States of America," and Article II, Section 3 stating:

"The President shall take care that the laws be faithfully executed," omitting that they lawlessly make them through Executive Orders, Presidential Directives, and other means, including George Bush claiming "Unitary Executive" powers, what Chalmers Johnson called a "ball-faced assertion of presidential supremacy dressed up in legal mumbo jumbo."

However, no constitutional wording explicitly permits this. Yet Congress and the High Court rarely override the Executive, so effectively he's empowered with vast, frightening authority, including as commander-in-chief of the military, an autonomous capacity in peace but dictatorial during war.

With some ingenuity, Executives have sovereign power. Congress is mostly a paper tiger, and the High Court usually upholds presidential authority. But if it wishes, it can make laws it wants by judicial rulings.

Notable Court Decisions

  • in Fletcher v. Peck (1810), the law of property rights was stabilized, especially contracts for the purchase of land; it was one of the first times the Court ruled a state law unconstititional;
  • in Dartmouth College v. Woodward (1819), the Court held that private corporate charters were contracts, and as such, were protected by the Constitution's Article I, Section 10 Contract Clause including among other provisions that:

"No State shall (make any) Law impairing the Obligation of Contracts...;"

  • in McCulloch v. Maryland (1819), the Court ruled that a state can't tax a bank branch established by an act of Congress;
  • in Gibbons v. Ogden (1824), the Court upheld the supremacy of the United States over the individual states in the regulation of intestate commerce;
  • in Dred Scott v. Sandford (1857), the Court ruled that black slaves and their descendants had no constitutional protections; could never become US citizens; that Congress had no power to prohibit slavery in federal territories; slaves couldn't sue for redress and their freedom; and as chattel property, they couldn't be taken from owners without due process;

The decision was never overruled, but in the 1873 Slaughter-House Cases, the Court held that the 14th Amendment annulled part of it by making all native born Americans citizens by birth.

  • in Plessy v. Ferguson (1896), the Court affirmed segregation in public places;
  • in Santa Clara County v. Southern Pacific Railroad (1886), the Court granted corporations personhood under the 14th Amendment with all accruing rights and privileges but none of the obligations;

The case and Court ruling involved a simple land dispute, unrelated to corporate personhood. After the decision, the Court reporter, JC Bancroft Davis, wrote it in his "headnotes." The Court allowed it to give corporations the same rights as people, but their limited liability absolved them of the obligations, empowering them to become the dominant institution of our times, able to control Congress, the Executive, and win numerous other favorable Court decisions.

Of all High Court rulings, this was the most far-reaching and harmful. It gave corporations unchecked powers, let them grow to oligarchic size, operate outside the law, and subvert the general welfare.

  • in Lochner v. New York (1905), the Court held that a "liberty of contract" was implicit in the 14th Amendment's due process clause, rejecting a New York law limiting the number of hours a baker could work for reasons of health; calling it "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract," it was one of the Court's most controversial decisions during the Lochner era from 1897 - 1937, when numerous laws regulating working conditions were invalidated in favor of property rights;
  • in Korematsu v. United States (1944), the Court ruled Franklin Roosevelt's Executive Order (EO) 9066 constitutional, ordering the internment of Japanese Americans during WW II; Korematsu challenged his conviction for violating the EO; in 1984, the US District Court for the Northern District of California ruled in his favor, Judge Marilyn Patel stating:

"there is substantial support in the record that the government deliberately omitted relevant information (including military justification) in provided misleading information in papers before the court" that was critical to the Supreme Court's decision.



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