The US Supreme Court: Our Surrogate King for 223 Years

Richard W. Behan

June 1, 2026

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Photo by Tim Mossholder

A king is a study in absolutes. His word is final, the law of the land, and he is accountable to no one, possibly excepting God.

Isn’t that a credible description of our Supreme Court? Its word is final, the law of the land, and its justices serve for life, unaccountable even to the presidents who appoint them.

Limitless in power, totally isolated, the Court can inflict great harm to the nation. It has for example eviscerated the Voting Rights Act of 1965 in two subsequent decisions, Shelby County v. Holder in 2013 and Louisiana v. Callais just this year. And now the former Confederate states are Jim-Crowing their black citizens all over again, kneecapping the impact of their votes. Discriminating against black voters in the South is once again, incontestably, the law of the land.

The Supreme Court can do such things by declaring laws or parts of laws to be unconstitutional and therefore invalid. The Court can do this because today it holds a power known as judicial review. It can tell the makers of laws—an elected Congress and an elected President—“You were wrong and we are right in saying so.”  How absolute is that?  Supreme Court justices were never elected, but they nullify laws emplaced by people who were. How anti-democratic is that?

This is not remotely what the Framers of the Constitution intended.

Article III Section 2 specifies what the Supreme Court can do. It functions all but exclusively with appellate jurisdiction. In street language that means the Court can do either of two things: it can uphold a lower court decision, or overturn it.  Nothing else. That’s it. The Court is empowered to sit in judgment of law cases. Nowhere is it empowered or even obliquely allowed to sit in judgment of the laws. The Constitution simply does not grant the Supreme Court the power of judicial review.

The Framers meant the Court to be subordinate.  In Federalist 78 Alexander Hamilton said this:

“The Judiciary is beyond comparison the weakest of the three departments of powers…it can never attack with success either of the other two [branches]…”

And in Federalist 81 he was explicit:

“…there is not a syllable in the plan under consideration [i.e. the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution…”

 Today’s Supreme Court invalidates laws without a speck of Constitutional authority, and it has done so for 223 years.

That takes us back to 1803 and the infamous Supreme Court case of Marbury v. Madison.

Federalist President John Adams in the last days of his term appointed 16 new lower court judges—all of Federalist persuasion. Among them was one William Marbury. Their commissions were to be delivered by the Secretary of State, as specified in the Judiciary Act of 1789, but in the scurry of a departing Administration they were not. In March Democratic-Republican Thomas Jefferson was sworn in as President. Intending to appoint judges of his own party instead Jefferson ordered his Secretary of State James Madison not to deliver the commissions.  Marbury sued for his, citing the 1789 law. John Marshall’s Supreme Court found Madison guilty but—wait for it—also saw the Judiciary Act as slightly askew of the Constitution. It was the skinniest technicality, but on that basis the Court dismissed the case.

Chief Justice Marshall said in the Court’s written decision, “It is emphatically the duty of the Judicial Department to say what the law is…a law repugnant to the Constitution is void.” So said John Marshall, but nobody else, certainly not the writers of the Constitution.

Marshall’s Supreme Court claimed judicial review simply by fiat and vaulted from the weakest branch of federal governance eventually to kinglike supremecy.

Note where our Supreme Court is today: by neutering the Voting Rights Act (and, incidentally, encouraging gerrymandering) it is up to its enrobed necks in rigging the upcoming elections, the mid-terms and the general election in 2028.

Judicial review was initially benign. It wasn’t invoked again for 57 years, and might have remained tolerable had not the Court paired it with another irresponsible decision.

In the 1886 case of Santa Clara County v. Southern Pacific Railroad the Supreme Court set a precedent with devastating consequences. It simply declared chartered corporations are persons as defined in the 14^th Amendment, with rights guaranteed by the Constitution: free speech, equal protection under the law, and others. By a technical error of the Court the precedent is legally flawed, but later Courts cited it anyway. And  now corporate personhood, prima facie preposterous, is the law of the land.

Think about corporate personhood for a moment. If corporations have Constitutional rights and if they can prove in court those rights are violated by a law, they can sue to have the law overturned. They can use judicial review as a weapon.

And after Santa Clara County they did.

The 14^th Amendment was meant to grant citizenship to black Americans, freed from enslavement by the Emancipation Proclamation, and to guarantee their equal treatment under the law. But now, after Santa Clara County, corporations became citizens, too.

377 cases based on the 14th Amendment were heard by the Supreme Court over the 27 years following Santa Clara County.  19 of them dealt with black Americans seeking equal protection. 288 were initiated by corporations claiming Constitutional rights—primarily to invalidate irksome laws.

As the centuries turned corporations succeeded in overturning minimum wage laws, child labor laws, laws limiting the workday, workmen’s compensation statutes, laws limiting corporate lobbying, and laws regulating utility companies. They sued for and won additional Constitutional rights, those granted by the 4th, and 5th Amendments—rights of privacy and the freedom from unreasonable search and seizure. Between 1905 and the mid-1930’s the Supreme Court found some 200 laws and regulations to be unconstitutional.

As the 20^th century progressed the toxicity grew. The caustic combination of judicial review and corporate personhood would prove in time to be fatal to democracy.       In a 1976 case, Buckley v. Valeo, the Supreme Court found unconstitutional the 1910 Corrupt Practices Act. It placed parsimonious limits on how much political candidates could spend on their campaigns. No, the Court said, spending money is a form of free speech, and the Congress cannot “abridge” that right. Dollars are words? Isn’t that also prima facie preposterous? Two years later in First National Bank of Boston v. Bellotti the Court overturned the 1907 Tilman Act, prohibiting corporations from spending money on political campaigns—because corporations have free speech rights, too. In seeming contradiction a law limiting how much corporations could spend remained in place. (The law was FECA, the Federal Election Campaign Act of 1972.)

In 2010 Citizens United v. FEC removed the contradiction. If corporations could not be restrained at all from spending for political purposes, then how much they spent was immaterial. Section 441b of FECA was unconstitutional. Out with it. Corporations can spend as much as they please.

But not to worry, Justice Anthony Kennedy wrote for the majority:

“…independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption…..The appearance of influence or access will not cause the electorate to lose faith in democracy.”   

Prima facie preposterous?

A tsunami of corporate money flooded expeditiously into the political campaigns of both parties (protected by the right of free speech) and lobbying activities as well (protected by the right of petition).

Corporations today outspend citizen interest groups in lobbying Congress and executive agencies by a factor of 86:1. In the 2024 election cycle corporations contributed 71% of the total of campaign donations, about $10.65 billion. Closely allied billionaires contributed another $2.85 billion, 19% of the total. Small individual donations came to $1.5 billion, about 10%.

By any measure, corporate citizens are the dominant influencers of federal governance today. Their financing of political campaigns renders elected officials into indentured servitude, amiably open to corporate requests. Then corporate lobbyists specify the details.

Public policy today routinely favors not the public interest, but the preferences of corporate America.

Oligarchs are commonly thought to be men and women of immense wealth with close ties to governments. We have those: Elon Musk gave $250 million to the Trump campaign in 2024. But the oligarchs dominating us today are corporate. It is not inaccurate to say our democracy was displaced by corporate oligarchy—after judicial review, after Santa Clara County, after Buckley, after Bellotti,after Citizens United. All thanks to a Supreme Court emulating royalty.

And then Donald Trump showed up, and overrode corporate oligarchy: Trump made himself a king.

The Supreme Court, the stand-in, stepped up to help. First the Court empowered Trump to ignore the rule of law: in Trump v. United States presidents became immune from prosecution for breaking laws while in office, if they do so in “official” actions. Then the Court fell into lockstep with the Republican Party, to tilt the elections of 2026 and 2028 to favor Donald Trump.

If Trump wins a third term, we will still have a king.

If he doesn’t, we’ll still have the stand-in.

This article is drawn from  a book the author is completing, The Triumph of Corporate Oligarchy: How It Defeated Democracy, Normalized Fraudulent Warfare, Devastated a Thriving Nation, and Brought Forth Donald Trump.

Richard W. Behan lives in Corvallis, Oregon. He can be reached at: richard.behan@icloud.com

LYSANDER SPOONER WOULD AGREE

LIBERTARIAN REVISIONIST HISTORY

Rothbard And The American Revolution – OpEd

Murray Rothbard in the mid-1950s. Photo Credit: The Ludwig von Mises Institute

March 6, 2026
By Joseph Solis-Mullen

Americans are taught that the Constitution completed the Revolution. The Articles of Confederation were weak, disorder reigned, Shays’s Rebellion terrified the countryside, and sober statesmen in Philadelphia heroically designed a “more perfect Union,” as the story goes. The Constitution thus appears as the Revolution’s crowning achievement.

But, as Rothbard showed, the Constitution was not the fulfillment of 1776, but rather its undoing.

After all, had the American states not just fought a war to reject centralized control by Parliament in London? Why, scarcely four years after Yorktown, were many of the same revolutionary leaders advocating a new consolidated national authority—one equipped with taxing power, a standing army, supremacy over state laws, and an independent judiciary insulated from direct democratic control?

Indeed, Murray Rothbard’s fifth volume of Conceived in Liberty invites us to reconsider the founding moment not as triumph, but as counter-revolution. And modern revisionist scholarship—from Charles Beard to Michael Klarman—suggests that this interpretation deserves more attention than it typically receives.

The Articles: Chaos or Liberty?

The conventional narrative insists that the Articles of Confederation were a failure. Congress could not tax. It could not regulate commerce effectively. It struggled to service war debts. Shays’s Rebellion seemed to expose fatal weakness, et cetera.

But weakness to whom?

Under the Articles, political authority was radically decentralized. Congress lacked independent revenue and depended upon the states. There was no executive, no national judiciary, no standing army in peacetime. Western territories were promised eventual self-government. From the standpoint of the revolutionary suspicion of centralized power, this arrangement was not an embarrassment—it was the logical extension of 1776.

The Revolution had been fought, after all, against a distant legislature claiming plenary authority over colonial affairs. Parliament taxed without representation. It imposed navigation laws and commercial restrictions. It stationed troops in peacetime. The colonists’ grievance was not merely taxation but consolidation—power drawn away from local institutions into an unaccountable center.

The Articles embodied the opposite principle: sovereignty lodged in the states, with Congress acting as their agent. Yet, by the mid-1780s, a coalition of nationalists argued that this decentralization had gone too far.

Shays’ Rebellion and Elite Fear

Much of the urgency for constitutional reform stemmed from Shays’s Rebellion in Massachusetts (1786–87). The textbook version describes desperate debtor-farmers rebelling against lawful authority. But as Leonard Richards demonstrated in Shays’s Rebellion: The American Revolution’s Final Battle, the uprising was less a revolt of insolvent peasants than a tax revolt against aggressive debt enforcement and heavy state taxation designed to service war bonds.

Those bonds had often been purchased at steep discounts by speculators—many of them eastern merchants and financiers—who now demanded repayment at face value. The tax burden fell disproportionately on western farmers. When courts began seizing property for unpaid taxes, rebels closed them.

To nationalists, this was not populist protest but democratic excess. For men like George Washington and James Madison, Shays’s Rebellion confirmed their fear that local majorities could threaten property rights and creditor interests.

Here Rothbard’s interpretation converges with Charles Beard’s earlier thesis in An Economic Interpretation of the Constitution of the United States. Beard argued that the Constitution reflected the interests of bondholders, commercial elites, and national creditors who desired a stronger central government to secure public debts and stabilize commerce. Though Beard’s determinism has been criticized, few deny that financial concerns loomed large in Philadelphia.

Michael Klarman’s The Framers’ Coup reinforces this picture. Klarman demonstrates that the Constitution was not the inevitable outcome of national consensus but the product of strategic maneuvering by political elites who capitalized on economic anxiety and fear of disorder. The Philadelphia Convention exceeded its mandate to amend the Articles and instead drafted an entirely new frame of government. Ratification rules were altered to bypass recalcitrant state legislatures in favor of specially-elected conventions.


If the Revolution was a popular uprising against consolidated imperial authority, the Constitution was most definitely an engineered response to popular unrest at home.

From Confederation to Consolidation

The shift was profound. Under the Constitution, Congress received independent taxing power. Federal law became “supreme.” A national judiciary could invalidate state legislation. The executive branch gained energy and permanence. Standing armies were constitutionally permissible. Interstate commerce fell under federal authority.

The logic of 1776 had been inverted. No longer was power presumed to rest with local institutions unless explicitly delegated; instead, the new government possessed enumerated powers whose interpretation would inevitably expand. The Supremacy Clause and the Necessary and Proper Clause quickly became such instruments of consolidation.

Nationalists defended these changes as essential to protect liberty. But liberty for whom?

For public creditors and commercial interests, national consolidation promised stability, uniformity, and reliable debt servicing. For slaveholding states, the Constitution protected the institution through clauses safeguarding the slave trade (for twenty years), fugitive slaves, and the three-fifths compromise. Sectional and economic interests aligned behind centralization.

The Constitution did not merely strengthen the union; it fundamentally altered the balance of sovereignty.

Betrayal or Transformation?

To call the Constitution a “betrayal” may sound excessive. After all, the Bill of Rights soon followed, and many Antifederalists ultimately acquiesced. But consider the revolutionary premise: that distant centralized power is dangerous; that standing armies threaten liberty; that taxation requires strict consent; that local self-government is the bulwark of freedom. These were not peripheral complaints, they were the Revolution.

Yet, within a decade of independence, leading revolutionaries endorsed a consolidated national government capable of exercising precisely those powers previously denounced in Parliament. The target had changed; the structure increasingly resembled what had been rejected.

The irony is striking. The same generation that resisted London’s claim of supremacy over colonial legislatures created a federal government with supremacy over the states.
The Counter-Revolution Thesis

None of this requires romanticizing the Articles or denying their weaknesses. Nor does it entail rejecting the Constitution outright. But it does require abandoning the myth of inevitability and the assumption that 1787 simply perfected 1776.

The American Revolution contained competing impulses: radical decentralization and elite consolidation. In Philadelphia, the latter prevailed.

If the Revolution was, in part, a revolt against centralized imperial power, then the Constitution represented not its fulfillment but its redirection. The question that remains is not whether the Constitution established some order (it did); the question is whether, in doing so, it compromised the very anti-centralist principles that animated the break with Britain.

For those willing to revisit the founding without piety, the answer may be uncomfortable.

But history rarely flatters the victors of counter-revolutions.

This article was also published at the Mises Institute

Joseph Solis-Mullen

A graduate of Spring Arbor University and the University of Illinois, Joseph Solis-Mullen is a political scientist and graduate student in the economics department at the University of Missouri. A writer and blogger, his work can be found at the Ludwig Von Mises Institute, Eurasia Review, Libertarian Institute, and Sage Advance. You can contact him through his website http://www.jsmwritings.com or find him on Twitter.


SEE 

Lysander Spooner - Wikipedia

Archive.orgia802800.us.archive.org/4/items/NoTreasonNo.ViTheConstitutionOfNoAuthority/NoTreasonNo.ViByLysanderSpooner.pdf

The Constitution of No Authority.

Lysander Spooner at Boston in 1870 and 1882, respectively. They were ... of the United States," or any one of them, voluntarily supports the. Constitution.

oll.libertyfund.org/titles/spooner-no-treason-no-i-1867

No Treason. No. I (1867) - Online Library of Liberty

... the American constitution because it justified slavery and otherwise violated individual rights ... I (1867). Lysander Spooner (author). Although this is numbered ...

Nyu.eduwww.law.nyu.edu/sites/default/files/ECM_PRO_065905.pdf

UNCONSTITUTIONALITY OF SLAVERY - NYU Law

† This article has been transcribed from Lysander Spooner's handwritten version, on file with the American Antiquarian Society in Worcester, Massachusetts.

Cooperative-individualism.orgcooperative-individualism.org/alexander-a-john_the-ideas-of-lysander-spooner-1950-jun.pdf

The Ideas of Lysander Spooner Author(s): A. John Alexander Source

... Spooner and the American Letter Mail Co. ... of an innocent one,"27 Spooner had no difficulty in proving that slavery was not mentioned in the Constitution.

Pitzer.edudwardmac.pitzer.edu/ANARCHIST_archives/bright/Spooner/Spooner_1539.02_Bk.pdf

the collected works of lysander spooner (1834-1886), in 5 vols. vol ...

This facsimile PDF is published by Liberty Fund, Inc., a non-profit educational foundation established to encourage study of the ideal of a society of free and ...

FOR A SIMILAR ARGUMENT ABOUT THE CANADIAN CONSTITUTION SEE

LA REVUE GAUCHE - Left Comment: 1867 Speech of Louis-Joseph Papineau at the Institut canadien

LA REVUE GAUCHE - Left Comment: I Am Canadien