“The 15% Solution,” Serialization, 6th Installment: Chapter Five 2003: Anderson v. Board of Education

by Jonathan Westminster, Ph.D. aka Steven Jonas, MD, MPH
Featured Writer
Dandelion Salad
crossposted on Buzzflash,com
July 1, 2010

This is the sixth installment of a project that is likely to extend over a two-year-period from January, 2010.  It is the serialization of a book entitled The 15% Solution: A Political History of American Fascism, 2001-2022.  Under the pseudonym Jonathan Westminster, it is purportedly published in the year 2048 on the 25th Anniversary of the Restoration of Constitutional Democracy in the Re-United States. It was actually published in 1996 by the Thomas Jefferson Press, located in Port Jefferson, NY. The copyright is held by the Press.  Herein you will find Chapter 5.

Note that in it, a firmly right-wing court decides that the Executive and Legislative branches, with their control firmly in the hands of the successor to the old Republican Party with no indication that that state of affairs will ever change, decides to remove themselves from any review of the actions of the other two branches.

We now face a right-wing Court, in which the next Justice, Elena Kagan, will likely be the next Whizzer White, giving the Right a 6-3 majority, is also firmly saying to the present Right, “oh you can do just about anything you want to, and we will do whatever we can to cement your power indefinitely.”  The Scalia Court (and it is the Scalia Court, whoever the Chief Justice is) is just like the “Steps” Court in the book.

Chapter Five

2003: Anderson v. Board of Education

Summary of the Decision (Supreme Court Bulletin)

“Supreme Court Has No Constitutional Review Authority”

Anderson v. Board of Education, Certiorari to United States Court of Appeals for the Third Circuit.
No. 101-11.  Argued October 31, 2002—Decided May 13, 2003.

Petitioner, a parent acting on behalf of her minor child, brought a civil action against the Board of Education of the state of New Jersey seeking to pre-vent it from enforcing a law passed dur-ing the 2001 ses-sion of the State Legislature mandating voluntary prayer in the public schools of that state.  Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Supreme Court.  Without arguing the merits, respondent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, generally known as the “Helms Amendment,” the U.S. Supreme Court did not have jurisdiction in this case.

Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes.  Further, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its “constitutionality.”

(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: “The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states.”

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Author’s Note: The “Helms Amendment,” offered in Congress a number of times from the early 1980s onwards by Senator Jesse Helms (R-NC) (Cox) and his ideological successors, was finally passed by the 107th Congress in 2001.  The language was unchanged from that version offered by Senator Helms in 1991 as S. 77: “Sec.   . (a) This section may be cited as the ‘Voluntary School Prayer Act’. (b) (1) Chapter 81 of title 28, United States Code, is amended by adding at the end thereof the following new section: #1260. Appellate jurisdiction: limitations ‘(a) Notwithstanding the provisions of sections 1253, 1254, and 1257 of this chapter and in accordance with section 2 of Article III of the Constitution, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, practice, or any part thereof, or arising out of any act interpreting, applying, enforcing, or effecting any State statute (and etc.) which relates to voluntary prayer, Bible reading, or religious meetings in public schools or public buildings . . .'”

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(b) It is clear that the plain language of this article supports the holding of the Court.  Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Constitution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say.  It thus becomes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court “judicial review” for “constitutionality” were based on faulty legal reasoning.

(c) In the first of these cases, Marbury v. Madison, the Court invalidated an “Act of Congress giving the Court jurisdiction to hear original applications for writs of mandamus, because in such cases the Constitution limits the Supreme Court to appellate jurisdiction” (Cox).  While that opinion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law.  Rather, as in Great Britain, the legislative branch, through the will of the majority, is the only appropriate judge of the “constitutionality” of its own acts.  In his written opinion, the Chief Justice stated that if “the courts lacked the power to give sting to constitutional safeguards . . . , the Legislative and Executive Branches might too often override the Constitution” (Cox). That may well be true.  But if the Founding Fathers had wanted to give the Federal judiciary that “protective” function, they would have clearly written it into the Constitution.  Chief Justice Marshall was reading into the Constitution words that he wanted to see — but were not there.

(d) In Martin v. Hunter’s Lessee, Justice Joseph Story expanded the Supreme Court’s review powers to include decisions made by the State courts (Cox).  Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there.  In Cohens v. Virginia Chief Justice Marshall affirmed Justice Story’s conclusion in Martin, using the same faulty reasoning. (Cox)

(e) Finally, in McCulloch v. Maryland, Chief Justice Marshall not only reaffirmed the Court’s review authority, unstated in the Constitution, but found in it other “implied powers,” giving the Congress authority to undertake actions not otherwise specified by the Constitution (in this case renewing the charter of the United States Bank which it had originally established in 1791). (Cox).

(f) After extensive review of the opinions and reasoning in the decisions made in the aforementioned cases, careful review of the language of the Constitution itself, and a consideration of the available evidence on Original Intent, the Court was able to find no basis for the conclusions on “implied powers” Chief Justice Marshall and his colleagues drew in those decisions referable to the authority of either the Supreme Court or the Congress.  Thus, the Court held, the precedents established by those cases and all their successors down through the years were based on faulty reasoning and a reading of the Constitution not in accord with the Doctrine of Original Intent.  Thus those faulty precedents must be abandoned. Since the specifics of Marbury, Martin, Cohens, and McCulloch had long since become moot, the Court chose not to reverse those decisions.  However, it did reverse the holdings made in those cases that the Supreme Court had any power to review the actions of the Federal Executive and Legislative branches or any State courts for their “constitutionality.”

11 F. 11th 111, Affirmed.  Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting.

Author’s Commentary

Anderson v. United States was the most significant decision handed down by the Supreme Court in the old United States since Marbury v. Madison referred to in the decision summary reproduced above.  In that case, Chief Justice John Marshall had established the power of the Supreme Court to review actions of the two other branches of the Federal government.  As correctly noted by Chief Justice Steps that power is nowhere clearly granted to it by the Constitution itself.  Nevertheless, Marshall said, if the Supreme Court found such actions to be unconstitutional, they were null and void.  His reasoning went as follows (Cox):

“The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.  If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

Marshall, of course, held that the “former alternative” was true, its truth found in the fact of the Constitution itself.  He then drew the defensible conclusion that the body given the power to adjudicate disputes arising under the Constitution, and Article 3 Section 2 surely did that, indeed had the power to review the actions of the other two governmental branches for their constitutionality.  That authority was extended to the appellate review of state court decisions having constitutional implications under the defensible conclusion that by ratifying the Constitution in the first place, the states had ceded to the United States that appellate jurisdiction, which is clearly contained in Article 3 Section 2 (see the decision in Cohens).

Once the Court under Marshall’s leadership had made those judgments, the full American power structure quickly came to agree with him.  The Jeffersonians did make several modest attempts to undermine the independence and authority of the Supreme Court, but failed and ultimately gave up.  From that time onwards, American jurisprudence came to be firmly established in the legal structure that Chief Justice Marshall had constructed on the Constitution’s base, as he interpreted it.

One very important principle set forth by Marshall, and subsequently accepted by all parties to American government down to the Transition Era, was that the Constitution was a document that meant more than it explicitly said, that was open to interpretation, and held within itself “implications.”  And by implication that meant the Constitution was a document that could grow and change with changing times and circumstances, that it was indeed designed to grow and change with changing times and circumstances.

During the Transition Era there came to be propounded what the Supreme Court Bulletin’s summary of Anderson refers to as the “Doctrine of Original Intent.”  One of its early protagonists was one Edwin Meese, the most prominent of President Ronald Reagan’s several Attorneys General, later President of Right-Wing Reaction’s Transition Era coordinating body, the highly secretive Council for National Policy.  A former local prosecutor with no background in Constitutional law, a lawyer who once was supposed to have said that if the police arrested someone that was evidence enough he or she was guilty, Meese held that if it wasn’t in the Constitution, in clear language, it didn’t exist.  (Meese later became the head of the National Council on Policy, the highly secretive coordinating body for a wide range of Reactionary Republican and Christian Rightist organizations during the run-up to fascism.)

A more cerebral proponent of the Doctrine was one Robert Bork. He had two principal claims to fame.  One was that as the third-ranking Justice Department official in 1973, on the orders of President Richard M. Nixon he fired a supposedly independent prosecutor during the scandal that eventually came to be known by the name “Watergate” and that eventually led to Nixon’s resignation as President.  (Bork’s two superiors at the time both resigned rather than carry out an order which indeed was later found to be unlawful.)

The other was that he was the most celebrated failed Supreme Court nominee in the history of the old U.S.  And his nomination failed precisely because he held to Constitutional theories that were completely at odds with those held by almost everyone else at the time considered to be an authority on the matter.  But his time eventually came.  The Court did adopt the theory he espoused so eloquently in so many legal papers and articles.

Summarizing the theory, Bork held that (1993):

“. . . principles not originally understood to be in the Constitution [have no constitutional validity].  Where the Constitution is silent, [a Supreme Court] Justice has no [legislative review] authority.  To act against legislation without authority is to engage in civil disobedience from the bench and to perpetrate limited coups d’etat that overthrow the American form of government.”

By implication, of course, Bork was attacking Marshall, because what he found in the Constitution was certainly not originally understood to be there (assuming that “originally” in this context means “when the Constitution was written”).  And by so doing, Bork was in the front of a movement to deny 200 years of American jurisprudence.  His, in essence, was the thinking behind Anderson.

It is interesting that Bork’s theory of Original Intent would appear to have much in common with the theory of “Biblical Innerantism” that was all the rage among the Religious Right during the Transition Era and provided a major piece of the foundation of the thinking that lead to American Fascism.  But that’s another story, one we will get to later.

A spirited attack on the theory of Original Intent had been offered a few years before Bork wrote the article cited above by Judge Irving R. Kaufman, a Federal Circuit Court of Appeals judge (1987):

“I regard reliance on original intent to be a largely specious mode of interpretation.  I often find it instructive to consult the Framers when I am called upon to interpret the Constitution, but it is the beginning of my inquiry, not the end.  For not only is the quest for ‘intent’ fraught with obstacles of a practical nature—notably that the Framers plainly never foresaw most of the problems that bedevil the courts today–it may also be more undemocratic than competing methods of construing the Constitution.

“If the search for ‘intent’ sums up the constitutional enterprise, then current generations are bound not merely by general language but by specific conceptions frozen in time by men long dead. . . .

“The open-textured nature of most of the vital clauses of the Constitution signifies that the drafters expected future generations to adapt the language to modern circumstances, not conduct judicial autopsies into the minds of the Framers.  When the Founding Fathers talked about due process, equal protection and freedom of speech and religion, they were embracing general principles, not specific solutions [emphasis added].”

Kaufman here is of course defending the expansive approach to Constitutional interpretation that led to the broadening of protections for individual rights that so enraged Right-Wing Reactionaries in the latter half of the 20th century and lead eventually to Anderson.

It is ironic that in his younger days Kaufman was the judge who presided over the trial of Ethel and Julius Rosenberg, accused of being atomic weapons spies, convicted, and eventually executed.  Many people around the world thought the trial and the subsequent failed appeals process were possibly rigged and certainly major miscarriages of justice.  Both Ethel and Julius were political progressives and he was an active member of the Communist Party.  Ethel was almost certainly not a spy, and if Julius was, he was apparently engaged only in stealing industrial, not atomic weapons, secrets.

The trial and execution of the Rosenbergs, it was revealed later, featured unprecedented collusion between the Federal Bureau of Investigation, the Federal Department of Justice, and the Courts, including both Judge Kaufman and the Supreme Court (Meeropol; Schneir and Schneir; Wexley).  But it was a major feature of the so-called “McCarthy Period” (1945-60).  During that time of so-called “anti-Communist hysteria,” individual rights for many left-wing Americans were harshly suppressed.  Punishment, most often in the form of political and judicial harassment and loss of employment, not imprisonment or death, was meted out simply for having, holding to, and expressing unpopular ideas, not for engaging in any even faintly illegal activity.

As an echo in a way of McCarthyism, in Anderson a group of Right-Wing Reactionary justices overturned the whole U.S. legal tradition from the time of the founding and organization of the Republic because they didn’t like the outcomes that tradition had produced.  With the Court out of the way, by its own hand no less, Right-Wing Reaction had succeeded in emasculating the powers of one of the three protectors of American constitutional democracy, the Courts, the media, and the Congress, on which it had set its sights during the Transition Era (see Appendix III).  Thus Anderson significantly accelerated the development of fascism in the old U.S.  But who ever said that the Court was not always truly a political institution (Rodell)?

A Parthenon Pomeroy Diary Entry, May 15, 2003

We did it, we did it.  We’ve finally got the Supreme Court out of our hair.  And those old fogeys handled the comb themselves.  The people are going to rule now.  Wow!  15 years of hard work to change that damned Court.  We’re going to save our country, our freedom, our American way of life.  I can’t believe it.  But I’d better believe it.  I do believe it.  This is going to fix things up all right.  Jobs for everyone.  Cut taxes to the bone.  And we can get the coons out of the schools, get sex out of the schools, get those faggots out of the schools, get prayer back in, where it belongs.  Yowy kazowy.  This is what we need to get America back to where it ought to be, to what it can be, to what it always was and always will be.  Thanks, God, and thanks Pat, too.

References:

Bork, R., “The Senate’s Power Grab,” New York Times, June 23, 1993.

Cox, A., The Court and the Constitution, Boston, MA: Houghton Mifflin, 1987, pp. 58, 59, 63, 66, 75, 342, 360.

Kaufman, I.R., “No Way to Interpret the Constitution,” New York Times, Jan. 2, 1987.

Meeropol, R., “Critique with Mort Mecloskey,” WUSB-FM, 90.1, Stony Brook, NY, October 30, 1995.

Rodell, F., Nine Men: A Political History of the Supreme Court from 1790 to 1955, New York: Random House, 1955.

Schneir, W. and Schneir, M., Invitation to an Inquest, New York: Dou-bleday, 1965.

Supreme Court Bulletin (Windham, NH), “Supreme Court Has No Consti-tutional Review Authority,” Vol. 24, No. 8, June 2003, p. 3.

Wexley, J., The Judgement of Ethel and Julius Rosenberg, New York: Cameron and Kahn, 1955.

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The original edition of “The 15% Solution” is available on Amazon.com and on BarnesandNoble.com. The 2004 print-on-demand re-issue from Xlibris is also available on Amazon.com and on BarnesandNoble.com.  You will find a “Sub-Home Page” for the serialization at the lower right-hand corner of the Home Page for www.TPJmagazine.us.  It contains such items as the Disclaimer, cast of characters, author’s bio., cover copy, and several (favorable) reviews, and will have a full archive of all the chapters as they are published over time.  The serialization is also appearing on www.BuzzFlash.com, Dandelion Salad; The Greanville POST; and TheHarderStuff newsletter.

Jonathan Westminster and biography are based on a pseudonym.

Steven Jonas, MD, MPH is a Professor of Preventive Medicine at Stony Brook University (NY) and author/co-author/editor of 30 books. In addition to being a Columnist for BuzzFlash, Dr. Jonas is also a Contributing Author for TPJmagazine; a Featured Writer for Dandelion Salad; a Senior Columnist for The Greanville POST; a Contributor to TheHarderStuff newsletter; a Contributor to The Planetary Movement; and a Contributing Columnist for the Project for the Old American Century, POAC.

see

The 15% Solution: A Political History of American Fascism, 2001-2022

“The 15% Solution,” Serialization, 2nd Installment: Chapter One

“The 15% Solution,” Serialization, 3rd Installment: Chapter Two

“The 15% Solution,” Serialization, 4th Installment: Chapter Three: 2001: The Real Drug War

“The 15% Solution,” Serialization, 5th Installment: Chapter Four 2002: The Preserve America Amend­ment (30th)

The 15% Solution