With local, state and federal courts now in the national spotlight, people rnay find it helpful to know that judges (mostly appointed, not elected) have been making law for generations and generations.

But judicial supremacy did not come from God or Mother Nature - consider that the Articles of Confederation had no provision for a Supreme Court. And when debate broke out over the replacement constitution drafted in Philadelphia, the idea of judicial supremacy provoked intense opposition.

Robert Yates of New York noted, "The opinions of the supreme court, whatever they may be, will have the force of law; because there is not power provided in the constitution, that can correct their errors, or controul their adjudications."2 John De Witt of Massachusetts observed: "There are no well-defined limits of the Judiciary Powers, they seem to be left as a boundless ocean..."3

The US and state supreme courts were created by men of property to protect themselves from democracy. And so today when judges confirm laws that establish special privilege; nullify laws that challenge special privilege; and amend state and federal constitutions to deny people's fundamental rights, they are doing what the antidemocratic Federalist Founders intended.

From thousands of rulings, here are a few samples of judges validating laws, nullifying laws, and amending constitutions.

US Supreme Court

• Santa Clara County v Southern Pacific Railroad Corp., 1886: decreed without hearing argument or offering an explanation that a corporation is a person for the purposes of the Fourteenth Amendment.

 

• Chicago, Milwaukee & St. Paul Railway Co., v Minnesota, 1890: voided a Minnesota law enabling state elected officials to set railroad rates, declaring that all rates decided by elected officials are subject to judicial authority.

 

• In Re Debs, 1895: uphold judge-made labor injunctions banning strikers from picketing, holding meetings, conferring with union officers, publishing articles or in any way seeking public support. It also sent Debs and three other leaders of the National Railway Union to jail for violating such an injunction.

 

• Pollock v Farmers Loan and Trust Co., 1895: nullified Congress' income tax law of 1894, which had imposed a 2% tax on incomes over $4,000.

 

• Charles Smith v Mississippi, 1896: affirmed the authority of lower courts to exclude African Americans from juries.

 

• Schenck v US, 1918: sent Schenck to jail because, in the words of Justice Holmes rewriting the First Amendment, "When a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional rights."

 

• Lochner v NY, 1905: nullified a New York law setting 10 hours as maximum labor per day for bakers.

 

• Virginia Board of Pharmacy v Va Citizens' Consumer Council Inc., 1976: protected corporate commercial speech under the First Amendment.

 

• First National Bank of Boston v. Bellotti, 1976: nullified a Massachusetts law banning corporate spending in referenda and initiatives which corporations had an interest.

 

• NJ v City of Philadelphia, 1976: nullified a New Jersey law banning toxic wastes from other states.

Federal judges in general:

• Gasaway v. Borderland Coal Corporation, 1921: upheld a lower court injunction against the United Mine Workers in West Virginia forbidding union speeches, union publishing, appeals to unemployed men to join the union, the use of union funds for unionizing non-union mines.

 

• United States v Anthony, 1873: US Circuit Court found that the Fifth Amendment did not allow women the right to vote. It directed a jury to find Susan B. Anthony guilty of illegal voting.

State supreme courts

• Pierce v Stablemen's Union, 1909: the California Supreme Court affirmed a court injunction against strikers picketing peacefully.

 

• Commonwealth v Perry, 1891: the Massachusetts Supreme Court nullified state law prohibiting an employer from fining an employee or withholding wages.

 

• Frorer v People, 1892: the Illinois Supreme Court nullified a state law prohibiting corporations from paying wages in goods or merchandise instead of money.

Neither Gore nor Bush talked about reversing this sad history of judicial usurpation. So while we may not know the winner of the presidential election, we can harbor no doubts about the loser: democracy. *

You can read all about this judicial usurpation. Here are some resources: Lawless Judges, by Louis P. Goldberg and Eleanore Levenson, NY: The Rand School Press, 1935; The Supreme Court and the National Will, by Dean Alfange, Garden City: Doubleday, Doran & Co., 1937; Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1985, by Arnold Paul, Gloucester: Peter Smith, 1976; Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court, by Benjamin Twiss, Princeton: 1942.

[1] Co-director, Program on Corporations,
Law and Democracy (POCLAD), P.O. Box 246, South Yarmouth MA 02664-0246.
Phone (508) 398-1145; Fax: 508.398.1146; E-mail: people@poclad.org.

[2] Cecelia M. Kenyon, editor, The Anti-federalists, Indianapolis.
Bobbs-Merrill Company, Inc., 1996, page 335

[3] Ibid, pp. 104-5