Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of JohnMore ↓Less ↑
Japanese American Internment Center
In the 16th and 17th centuries, Lutherans spoke of a mysterious “black pope” or “shadow pope” who they believed was the real power inside the Vatican, the actual voice when the pope speaks ex cathedra (from Peter’s throne).
I am not a conspiracist; however, during my 25 years of studying the Constitution, I’ve often wondered if there is an unseen hand, a shadow justice that controls how all justices on the Supreme Court reach their legal conclusions. Does an invisible justice exist that is neither appointed by the president nor approved by the Senate who dictates how they write their judicial decrees?
As part of my ongoing series of columns on justices of the U.S. Supreme Court, here I will chronicle how an obscure little footnote authored by an inconspicuous law clerk became the foundation of a radical, new judicial review during the midst of Franklin Delano Roosevelt’s second term that tragically cemented a results-oriented liberalism while signaling the death of the rule of law and natural law jurisprudence, which is the original intent of the constitutional framers.
In other words, FDR’s hand-picked chief justice, Harlan F. Stone, in a seemingly innocuous obiter dictum, was in actuality launching a long-planned frontal assault against natural law and the neo-natural law revolution named after the case Lochner v. New York (1905), the famous case of conservative jurisprudence that launched the 40-year period of American jurisprudence known as the Lochner Era (1905-35). The Lochner era ushered in a series of cases by which a conservative Supreme Court majority consistently overturned cases like minimum-wage laws, child labor safety laws and rights to organize, deeming those laws as violating the constitutional right to private property. For 30 years, Lochner stood for the foundational natural law principle that Congress can’t easily regulate the free market because such regulation constrains people’s use of their private property, which conservative jurists understood as sacrosanct.
In contrast, this famous “Footnote Four” integrated a Darwinian evolutionary jurisprudence, an intransigent atheism, a fascist political progressivism, a militant Marxist socialism and an anti-natural law method of judicial review with inoffensive terminology (e.g., rational basis, intermediate scrutiny, strict scrutiny).
What is the origin of this ubiquitous Footnote Four?
The case in question is Carolene Products v. U.S. (1938), thought to be “the most famous footnote in constitutional law.” The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but also proposed new levels of judicial review for certain other types of cases, none of which have any basis in the history of legitimate American jurisprudence (e.g., stare decisis).
Here is Justice Stone’s famous Footnote Four, writing in orbiter dicta:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. …
Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. [emphasis mine]
Obiter dicta (or dictum) are comments or observations made by a judge that, although integrated in the body of the court’s opinion, do not form an essential part of the court’s decision.
FDR’s New Deal programs (1933-45) were an essential part on an overarching and existential progressive revolution purposely designed to affected and deconstruct all three branches of constitutional government – Legislative, Executive, Judiciary. Having achieved his first goal, flipping Justice Owen Stone to vote his New Deal policies constitutional, FDR, in a brilliantly Machiavellian move, quickly consolidated his extra-constitutional powers by using his highly placed “shadow justice” to introduce the idea of levels of judicial scrutiny. This way every present and future Supreme Court justice (irrespective of their ideology or philosophy) would unwittingly be forced to pay obeisance to FDR’s new progressive paradigm of judicial review, thus making his original intent to “pack the court” a fait accompli.
Footnote Four of Carolene Products would push FDR’s Progressive revolution beyond his initial results-oriented liberalism to an end-justifies-the-means political hegemony. Therefore, Footnote Four recognized this rational basis test for economic legislation, a very low standard of judicial review. The “rational basis test” mandates that legislation enacted by Congress or state legislatures that deals with economic regulation must be rationally related to a legitimate state interest. Note that under this new FDR-created judicial review, the goal is not fidelity to constitutional principle or, as in Lochner, et al., protection of property rights, but the wielding of unshackled progressive power, control and the obliteration of individual liberty and the Separation of Powers doctrine the framers held sacred.
A higher level of scrutiny, which became known as “strict scrutiny,” was first applied in Justice Black’s opinion in Korematsu v. U.S. (1944) – FDR’s infamous Executive Order 9066, which ordered Japanese Americans into internment camps during World War II.
In the history of the Supreme Court, it is often later discovered that the justice in question didn’t actually write the opinion but merely “signed off” on it. Such is the case here in that for decades legal scholars have theorized that this “most famous footnote” was not actually written by Chief Justice Stone, but by his law clerk, Louis Lusky. Despite the fact that in his collected papers Chief Justice Stone did not claim that the law clerk was the author implied, nor via letters between himself and his colleagues on the bench, nevertheless, Lusky, in his 1993 book, “Our Nine Tribunes: The Supreme Court in Modern America,” includes facsimiles of the original drafts, including the first draft of the footnote, which is in his own hand.
Ergo the lowly, unknown law clerk, Louis Lusky, put on his shadow mantle of the U.S. Supreme Court – a man who in secret exercises tyrannical powers by his creation of the controlling mechanism of modern judicial review … even from the grave. For nearly 75 years, every Supreme Court justice (liberal, progressive, moderate, or conservative) have faithfully followed Shadow “Justice” Lusky’s commandments to the deconstruction of the U.S. Constitution.
Next week we will explore the pseudo-constitutional origins of the Obamacare mandate tax.