Grand Larceny: An Unexpurgated History of the Supreme Court
D. J. Connolly
But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
George Washington; Farewell Address
Once upon a time, a young lady named Betsy Ross graduated from college with a degree in architecture. She worked for several years in the profession, made good money, and lived in a very nice apartment overlooking a scenic river. But then a neighboring city decided to build a sanitary sewer plant a quarter-mile upstream. On days when the wind was right the smell was unbearable.
Betsy still had eight months left on her lease. But she resolved she would leave after that. She would get her own house at least two miles upwind of the river. Since graduation, she had lived well within her means; so her savings were more than adequate for a down payment.
Betsy soon decided that she didn't want just any house; she wanted one she had designed herself. She worked on the plans for over a month, found a nice lot in the nearby foothills, and bought it. That consumed most of her savings; so she took her plans and financial records to a bank and lined up financing. She had many contacts in the construction business and, of course, she had her professional skills. So she was well qualified to act as her own general contractor. That saved her a bundle. The house was ready for her to move in about three weeks before her lease was to expire.
After moving in she invited her parents over to see it, as well as several other family members, friends, and professional colleagues. All agreed that it was a splendid house. She had incorporated the most modern European and American ideas in house design as well as several exquisite architectural touches from ancient cultures. The praise of her professional colleagues was especially sweet.
A week or two later, she read in the local newspaper that a rash of burglaries had occurred in the community. So she decided to get herself a watchdog. She wanted one big enough to deter the burglars; but she didn't want a mature dog that somebody else had already ruined. So she searched around and found a two-week old Rottweiler pup that was offered up for "adoption" by a local kennel club. At two weeks, he wasn't any bigger than the average house cat. But the folks at the kennel club assured her he would grow quickly, and would probably approach a hundred and fifty pounds. Betsy named him Supremo; and when she got him home she felt a lot more secure.
Supremo promptly did his business on Betsy's living room carpet. She gave him a whack with a newspaper and patiently explained that this was not the role she intended him to play. It happened again the next day and again the day after that. Betsy didn't want to get carried away with punishment because that might damage Supremo's self-esteem. If he was going to be taken seriously as a watchdog she had to keep his sense of independence intact. So, each time he soiled the carpet, she wagged her finger at him, said "bad boy," sternly explained that this would just not do, then gave him a big hug.
During the next few months Supremo grew rapidly. He also continued to do his business on Betsy's living room carpet. He even branched out to the dining room, the kitchen, and the bedrooms. The piles of doggy dirt got bigger and bigger and cleaning them up became very tiresome. Occasionally she repeated to Supremo her admonition about his proper role. But, as time went on, those occasions became less and less frequent. Eventually she came to accept that doing his business inside her house was part of Supremo's role. She resigned herself to shampooing the carpets every week. And she always kept several open containers of perfumed air freshener around the place.
About two centuries back, our forefathers wrote a Constitution for a wonderful new country in the wilderness. They established a Congress to exercise "all legislitive powers," a President to exercise "executive power," and courts to decide "cases and controversies" in accordance with the Constitution and the laws. They hoped we would hire people who were honest, trustworthy, and free from bias to work in the courts. But they hoped in vain.
Since the earliest days of the Republic, our judicial employees have been trashing our Constitution. They conducted a partisan Reign of Terror almost before the ink was dry on the Bill of Rights. A few years later they knowingly abetted the biggest real estate swindle in American history. Their brazen frauds helped cause the Civil War and the Great Depression.
For almost a century the Supreme Court was among America's most stalwart defenders of slavery, racial segregation, and Ku Klux Klan lynchings. Then it turned around and destroyed our urban public schools in the name of racial equality. In the name of the Bill of Rights it caused a great and lasting crime wave and declared unconstitutional the religious, moral, , and patriotic values of those who gave us the Bill of Rights.
Notwithstanding such "abuses and usurpations," we’ve never taken effective action to chastise this rogue institution or any of its members. And we can’t ameliorate the problem with carpet shampoo and air freshener.
ALL LEGISLATIVE POWERS
Charles Evans Hughes, a former chief justice, once said, “We live under a Constitution, but the Constitution is what the judges say it is.” Since “the judges” routinely invent fraudulent new constitutional matter, we do not “live under a Constitution” at all. We live under “the judges.” The book Grand Larceny: An Unexpurgated History of the Supreme Court reviews our judiciary’s record without rose colored glasses. It’s not a pretty story. The record is littered with Supreme Court actions that any well-informed bricklayer, teacher, police officer, doctor, bartender, or engineer would recognize as fraudulent. Many of those actions also produced catastrophic results.
The arrangement described by Justice Hughes is not constitutionally ordained. It's merely an institutional practice that grew out of two centuries of unpunished usurpation. Our founders designed a government with three independent branches, each with a limited role to play. And they expected all three branches to defend the Constitution. The role of the judicial branch was limited to deciding "cases and controversies" in accordance with a written Constitution and laws made by "We the People" or our elected representatives. Our judicial employees were emphatically denied "legislative Powers." They now exercise unaccountable and practically veto-proof "legislative Powers" anyway. Various articles on this web site trace the slow, sneaky development of that coup.
Alexander Hamilton, in Federalist Number 78, promised that the new Constitution he was trying to persuade the people of New York to approve had effective limits on judicial power.
“The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.”
Hamilton went on to assure his fellow citizens in Federalist Number 81 that they could rely on Congress to punish "judiciary encroachments on the legislative authority" by impeachment and removal of the encroaching judges.
“There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted (sic) with (the power of impeachment and removal), while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”
Our founders depended on the integrity of future judges to restrain them from transgressing their constitutional limits. They depended on the courage and integrity of future presidents to refuse support to fraudulent Supreme Court rulings. And they depended on the courage and integrity of future congressmen to impeach and remove renegade judges regardless of the partisan issues involved.
Our founders were a bit too optimistic on all three counts. Fraudulent Supreme Court rulings usually have a fair amount of political support, especially among various elites. So a movement with sufficient strength to nullify or punish them has rarely emerged.
The Court is constantly bombarded with requests to fabricate new law based on speculative, even preposterous, constitutional interpretations. Often a majority is willing to go along. The justices may or may not share a partisan bias in favor of the goals of whatever special interest group presented the request. But they usually do share a bias in favor of enlarging judicial power, a goal they pursue by inventing endless novel, and often conflicting, "constitutional" mandates. Their inventions become precedents for future cases in the Supreme Court and all lower courts. So they’re tantamount to constitutional amendments with no input from us or our elected representatives.
Their inventions also cause “legislative Powers” to migrate from Congress and state legislatures to the federal courts; that’s the whole point of the game. Somebody needs to resolve the contradictions the bogus new mandates create; somebody needs to establish priorities, to make public policy. Our founders intended that Congress, within its proper sphere, and state legislatures outside that sphere, make public policy; that’s what they meant by “All legislative Powers herein granted shall be vested in a Congress of the United States.”
Our judicial employees have long defied that mandate. Nobody is in a position to keep them honest; so they usurp new “legislative Powers” at will. Unelected judges with lifetime appointments contrive to enact our most important laws, making a mockery of our constitutional guarantee of a "Republican Form of Government." After two centuries of this mockery we now live under a bogus, judge-made Constitution; the real one is treated as nothing more than a symbol.
Academics, journalists, and lawyers defend the mockery, partly because they fear the consequences of loss of public trust in the Court, and partly because they like government by unelected judges. They explain to "We the People" that we have a "living Constitution" which "evolves" to incorporate Supreme Court policy innovations. And they tell each other that Supreme Court innovations produce better public policy than the efforts of elected politicians who can't afford to get too far out in front of the ignorant multitudes.
Grand Larceny examines both claims, and concludes that they're both false. Our Constitution clearly states that it can be amended only by the process described in its Article V. And the historical record shows that judicial usurpation of legislative powers has led to far worse results than Congress could have managed on its own.
The historical record, unfortunately, is still not complete. After a two-century-long “train of abuses and usurpations,” our judicial branch of government no longer has any meaningful limits to its power. There’s no telling how it might use that power during your lifetime. That depends solely on the whims and biases of whatever lawyer-politicians manage to pander their way onto our higher courts.
email the author