Future U.S. Supreme Court justice Hugo Black joined the Robert E. Lee KKK Klavern No. 1 at dusk on September 11, 1923. There were 1,750 initiates and 25,000 spectators that night. But this was a time when all white protestant males were joining the Klan. Black went on to support some of the most effective Civil Rights legislation of the 1950s in “Brown v Board of Education”
Joel Osteen, Rick Warren and Tony Robbins speak to over 100,000 people a month eleven months a year but their combined cultural heft is miniscule compared to that of a few paragraphs of text written by a dissenting U.S. Supreme Court judge. This judge can easily effect the lives of every citizen in the country for two hundred years.
If wives get one half of their husband’s net worth in big divorces even though they were not working in the executive office at GM or GE because they are on the home front enabling the success of their mate via their management of the domestic scene, perhaps they should also share the ignominy and prison time for minding the home front when hubby is robbing millions from his clients.
The U.S. Supreme Court opens the door to consolidation and growth of the federal government serving a useful function for a young republic but for the past fifty years our gargantuan government has relinquished its power to globally controlled financial institutions that have gutted the American middle class. The logic, traced back to McCulloch v Maryland has resulted in the shift of industry to Asia and with the shift, our national solvency. Between the Dartmouth College case and McCulloch v Maryland Marshall planted the seeds for the undermining of a mature nation which, in 2010 lies in doldrums, eviscerated, with its industry and its dollars gone to China and its middle class gone to hell. So those Republican alarmists Jefferson, Roane and the legislature of Virginia are proven prescient.
John Marshall was always sensitive to the hardship of individuals who could not afford to seek redress from distant courts. With this in mind he often settled cases within their own jurisdictions that might have been candidates for an appeal to a higher but distant court. Marshall’s sensitivity to logistical and financial challenges of individuals seeking justice is belied by his creation of a powerful and impregnable (by states) federal government. In 2010, as has been the case, for two hundred years, the individual has no local recourse via a state legislature or state court to the mandates of the federal government. This is not democracy. The federal government has made itself a remote and unfathomable hog, impenetrable even by a new president who makes a commitment to two hundred twenty million people for change. Our only pipeline to John Marshall’s now colossal and omnipotent federal government is our vote for president and his immediate and continuing emasculation is proof that democracy in the United States is dead. Stick a fork in it - it’s over. American citizens have become a viral colony that is harvested by corporate and financial entities from birth to death - revolt now!
All growing things have different needs at different ages. Newborn mammals need milk. Later in life milk can become toxic if ingested at all. When concrete is fresh it needs moisture for thirty days to cure properly after that moisture is unnecessary. A tree needs new branches and leaves then after eighty years any further weight causes the tree to tip over in a strong wind. During the generation following the Revolutionary War the United States needed the jurisprudence of the Marshall Supreme Court in order to grow effectively, in order for commerce to thrive. Decisions that may have served a great purpose for one hundred fifty years may begin to have an opposite effect thereafter. How much of our foundational legal precedent is now doing more harm than good?
Dissention during Marshall’s tenure as chief justice of the U.S. Supreme Court (1801-1835) was resolved at the dinner table with copious amounts of wine supplied by the hogshead from Marshall who purchased it in one hundred gallon lots from Europe in order to sauce his brethren, to synchronize their minds on the weighty matters before the court. The justices all shared living quarters in a rooming house in Washington D.C. while court was in session. As young women living together will experience the synchronization of their menstrual cycles, I wonder if the men of Marshall’s court underwent an additional synchronization of testosterone due to their propinquity? Dissention on the court was not as acceptable during the Marshall era as it was later when dissentions of Brandeis, Black and many others became the law of the land in due time.
Since when is a college a corporation? This was U.S. Supreme Court justice John Marshall’s assertion. A college is a single entity in a fixed location with a mission to educate youth not to make a profit. To make such an assertion about the “individual” nature of a corporation in the guise of a small, remote school and then to use this bold and specious proposition to create legal immunity for all corporations allowing two hundred years of exploitation and abuse that resulted in the wholesale evacuation of American industry to Asia is a colossal mis-reading of the Constitution and a long-running miscarriage of justice. It is time to re-visit the Dartmouth College Case and in so doing to re-define the corporation in terms by which they can both be held accountable and by which they can thrive on our shores.
The great divide between Jeffersonian republicans and Federalists regarding states rights is manifest in this legislation. Federalist theory asserts that the U.S. Constitution reflects the will of the people not the states. The Republican “Compact” theory asserts that the national government is a compact between the states. How can one separate the states from “The People” they are the same carbon units. If one acknowledges the right of states to exist then one must see that they are also “The People“. The same people represented by the federal government. If Jefferson is right - that the Constitution implies a compact, then one would send STATE representatives to Congress and all federal law would be generated by state legislators in their Federal role just as Supreme Court justices had state circuit court duty in addition to Federal responsibility. It was clear once the Constitution was adopted that the people of each state elected congressmen and senators to participate in national government directly. The armature for the compact theory was gone. That armature would have been that state representatives had a dual role - state as well as federal. If state and federal lawmakers were the same elected officials then the officials from South Carolina could have proposed a national law that disallowed blacks from embarking at ports and the Supreme Court would have struck it down as unconstitutional. South Carolina loses either in Federalist or strict Republican terms.
Johnson v McIntosh (Cherokee Indians in Georgia who occupied land that became subject to a major gold rush were taken from them and distributed to adjacent counties.Fifteen years ago I invented a quasi-mystical fortune-telling procedure called Mohare’ (Missouri -MO Hand-HA Reading-RE) As I tell it, a band of eastern European gypsies migrated to the Ozarks in 1842 and brought with them a timeless system for analyzing the capacity for an individual to harness universal energy. It proceeds from the profile of a person’s left hand drawn on a paper tablecloth with their index finger pointing to magnetic north. From the outline, I proceed to draw the centerlines of each finger, tangent lines to each interstice between fingers and various radiating -generating lines as if I were analyzing the floor plan of a work of architecture. Colored pens are optional but very effective. Once the lines are drawn, I begin to see features: “Ah! A Johnson’s Junction - this fortells a deep capacity for sympathy with your fellow man” Oh look! Connie‘s Confluence! - You possess a remarkable intuition regarding things artistic. Holy Kee-rist - I’m seeing a Filbert’s Funicular - I’ve read about these for many years, they are famous in the literature (what fucking literature) but only two have ever been manifest in a hundred years and you have one! My point - A person can assert ANYTHING and if it is delivered with enthusiasm and conviction it can be maintained for at least the tail end of a candlelight dinner. This, according to Aaron Burr, is the nature of the law. Knowing this, perhaps it is time to examine our assertions. Mohare’ can be elaborated into a system with ten thousand measurements of the hand and ten million interpretations and as long as people buy into the system it has heft, it has meaning. My god - I have an Arc of Ambrose! It says here in the Mohare’ Bible (1,500 pages of diagrams and definitions) that I can sense infinite passion in others during the full moon. Why not? If my imaginary system allows real people to feel positive energy for even a moment then it is a real thing - it has temporal heft - it has changed one person’s outlook, made them happier even if only for a minute.
In Johnson v McIntosh (1823) the U.S. Supreme court asserted that native Americans had no right to convey property. The land they were occupying was up for grabs by the state of Georgia when it became valuable enough to steal. A very bald and bold assertion that was backed up with regal and colonial precedent. Wow! Look at these two lines crossing in the middle of your palm, Inga’s Intersection, this indicates that you will soon possess a great cosmic energy resulting in spiritual bounty and financial prosperity. If you say so. If you just say it isn’t so, the whole system evaporates. Our legal statutes have as much fundamental cosmic veracity as Missouri Hand Reading. It is time to re-define the meaning of many lines and arcs.
- It was depressing to listen to Sonia Sotomayor’s Senate confirmation hearings. She went to great lengths to convince her interrogators that she would do nothing creative while on the Supreme Court. That she would adhere strictly to the body of precedent of American law. Everyone knows that a Supreme Court decision creates the reality of a law as much as an act of congress yet she had to deny that she would ever think that she was doing anything other than carrying out the spirit of the laws passed by her esteemed inquisitors. Is the law immune and isolated from creativity at its highest levels? Our legal system is crying for substantive new ideas. Sadly, a supreme court judge, the most powerful player in our legal system, is like a musician in a symphony orchestra. They read the notes and play the tune. They are valued for their subtle, knowing interpretation of music created by others. The musician doesn’t compose the notes - the judges claim that they are not making the law. Musical composition is risky and messy and full of passion, instinct, ambiguity, uncertainty as is law-making. Aaron Burr once said: “The law is anything that is forcefully asserted and reasonably maintained.” Supreme Court justice Sotomayor claimed over and over again during her confirmation hearings that she does not make the law - she doth protest too much.
1. Held women in inordinately high esteem that devolved into a patronizing attitude considering women untouchable from their pedestal.2. He suffered from PTSD from Revolutionary War battle experience and turned to alcohol to calm the psychic effects. How did this drinking (every night for thirty years!) effect his judicial decisions that are now the foundations of our way of life? 3. In marrying his wife Polly when she was only thirteen years old he prevented her from experiencing her adolescence. She went from childhood directly to motherhood causing her a lifetime of mental disorders. 4. His sons failed to thrive intellectually or economically, perhaps due to emotional damage caused by: a. a remote, neurotic mother b. absent, patronizing, alcoholic father.
This is altogether too mean! John Marshall was a humble, self-effacing man, a great thinker and an all-around very nice, very hardworking person, loved and respected by all who knew him. He was a high-functioning drunk with charisma. He was an American patriot, a founding father for God’s sake! He was just another privileged, ultra-ambitious mid-level Virginia aristocrat - an entitled white guy with a silver tongue, a lust for property and street cred as a battle-hardened veteran. It is unfair to judge a man from a place so far removed from his milieu. Perhaps, but this man’s decisions negatively effect every person on Earth now. Thanks to John Marshall, corporations are not accountable for their negative effects on a particular community - they have constitutional immunity due to Marshall’s interpretation of the contracts clause in the U.S. Constitution. If it is unfair to judge a man in retrospect then it is unfair for his decisions to control so many important aspects of our lives today - fair play. Judgment works both ways. If I can’t judge him then he can’t judge me. Let’s re-examine both ends of the matter.
We now hold our laws,sacrosanct as they dominate / stifle our culture, from yesterday’s precedent to the bedrock decisions and Constitution itself. There must be a procedure initiated to review all juridical precedent at all levels. Every other walk of life has submitted to the re-vitalizing scarification of its conceptual landscape during the twentieth century. The law shall not escape. The time has come to empower a legal Picasso or Einstein thus launching an army of legal sleuths, theorists, students, and practitioners to bring the law into the twenty-first century. As it is currently practiced, the law, through our state and federal legislatures and current proceedings is like growing more and more branches and leaves on an old oak tree. This object has reached its capacity and will soon topple. All things on earth: bricks, mortar, trees and storms have a life cycle. If the dawdling turtle of our cultural menagerie, architecture, can swallow the pill of Postmodernism then so can the law.
- During the twentieth century the following realms of human endeavor have come to grips with the epochal paradigm shift of 1912 (locus 1895-1920): Physics, painting, music, dance, psychology, mathematics, astronomy, literature and architecture. They have all experienced major revolutions incorporating the un-pinned station point that released ambiguity, uncertainty, intuition, the primitive and all manner of non-linear, contra-logical thinking that signaled the loss of primacy of The Enlightenment Project. A project characterized by Newtonian physics, tonal music, rational logic, deductive reasoning and hierarchical notions of organizing thought and measuring the world. We are now standing impatiently as the globe over-populates and over-heats and economies crumble in archaic eighteenth century manifestations, waiting for our legal system to respond to our global emergency. The U.S. Constitution and the grand wormy juridical edifice it created must get with the twenty- first century program. Our legal system has not changed in principal since its formulation in 1789. Many features have their roots in the medieval. The U.S. legal system stands wobbling, exhausted and incapable of responding to our current needs. It is now time to re-think the U.S. Constitution and the entire body of Constitutional law, philosophy and legal precedent using quantum logic - the logic of Einstein and Picasso, Schoenberg, Freud and Wright. It is time to blow the soot and cobwebs out of every corner of our laws from edifice to foundation down to the compacted cultural backfill on which the block stands. We have banks of supercomputers waiting to be re-assigned from predicting weather patterns to re-thinking our laws. We can begin by separating the corporation from its rights as an individual. The Dartmouth v Woodward decision of 1819 was dead on arrival and is due for re-consideration. It is time to re-define the corporation as an entity that must account for its total social / carbon footprint. To serve is to rule!
While shedding no tears for big, bad American corporations but how was (then U.S. Senator future U.S. Supreme Court justice) Hugo Black allowed in 1938 to pursue his inquisitions given corporate immunity enabled by Dartmouth v Woodward (1819 - Marshall Court) not to mention the Fifth (self incrimination) and Fourteenth Amendment (due process) protections. Senator Black ran these inquiries like Stalin’s show trials happening concurrently (great minds think alike). Senator Black treated his victims as though they had no constitutional rights whatsoever: freedom from search and seizure, right to a fair trial. In these inquisitions Hugo Black violated the “most important right of all” - Louis D. Brandeis - the right to be left alone.
The U.S. Supreme Court is like a super-saturated chemical solution - drop in some additional substance - a case - and a crystal of multi-faceted opinion coalesces. Federal jurisprudence is like a pot of fondue cheese heated up and ready to congeal around the crouton of a legal issue.