Links for Friday, June 28
Links for Friday, June 28
The Court has been wrongly empowered since 1803, and other tall tales
Here we look at the Court (you know the one) in a way that few people consider. Plus news on government’s other wrong power, strip-mining America, messing with firewalls, and more. Also music, of course.
Links
• SCOTUS Was NEVER Meant to Be Kings & Queens (Thom Hartmann)
It’s not hard to find lots of railing against the Roberts Supreme Court these days, and deservedly so. As Hartmann asserts at the link, “This lawlessness has gone way too far: the Senate needs to intervene and reassert its authority over the Supreme Court. And they need to do it now”.
But you won’t find many histories that describe the intended relationship of the Court with the other two branches better than this one:
How did the Court get so much power that they can overrule both Congress and the President, ignore efforts to hold them accountable when they are nakedly corrupt, and overturn laws like our bribery statutes? Who put them in charge of America?
The simple answer, as I lay out in detail in The Hidden History of the Supreme Court and the Betrayal of America, is that they gave that power to themselves.
Not only is such power for the Court not found anywhere in the Constitution, but Article III, Section 2 explicitly puts the Supreme Court under the thumb of Congress, not the other way around[.]
The original sin was an 1803 court case called Marbury vs. Madison, or simply Marbury. I won’t detail it here; you can read some of that story at the Hartmann link. Marbury was the case that invented “judicial review” — added it to the Constitution by force of will. Note, in Hartmann’s piece, that John Marshall hated Jefferson. Is that why we’re where we are? One man’s animus?
What I want to say here, though, goes far beyond what the outraged currently offer. I want to say that Marbury was wrongly decided and should be ignored.
In the past, Hartmann has argued this point as well, and may still be onboard. In 2021 he wrote:
Court-stripping when it came to constitutionality was how this country operated for its first 70 years, including when all the men who wrote the Constitution were alive and in government.
The Supreme Court only ruled twice between the 1789 signing of the Constitution and the 1860s on a constitutional issue, and in each case both Congress and the president at the time ignored the ruling.
Court-stripping, narrowly, is a legislative technique by which Congress, in the text of a law, writes that the Court shall have no jurisdiction over it. But broadly, court-stripping means “ignoring the Court” — as Jackson did in 1832 and Lincoln did following the 1856 Dred Scott decision.
I’ll return to this subject at some point. Imagine a country without Marbury. I often have.
File under “The real Originalists designed a Court without power.”
• U.S. Gov Finally Admits to Spying on Domestic Protests (Ken Klippenstein)
The FBI, Department of Homeland Security, and the National Counterterrorism Center are all surveilling and reporting on domestic protests, specifically the student demonstrations about the Israel-Hamas war and abortion-related protests at the Supreme Court, a top intelligence official admitted this week in testimony before Congress.
… The FBI and NCTC have also taken it upon themselves to more closely scrutinize domestic protests in other areas, all on the pretext that they are looking for foreign influence.
Homeland Security’s intelligence agency has on multiple occasions tasked their intelligence collectors with gathering information on various protests, Ken Wainstein, the Department's Under Secretary for Intelligence and Analysis said in testimony before a House Homeland Security Subcommittee on Tuesday. Wainstein claimed that foreign governments (and other actors) were actively exploiting American protests to sow discord in the U.S. His remarks have not been previously reported.
Not much to add. Maybe the coup’s already here, and CNN missed it.
File under “What other coup?”