Publius-Huldah's Blog

Understanding the Constitution

What are the Enumerated Powers of the Federal Courts?

The Judicial Power of the Federal Courts.

By Publius Huldah.

1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III §2, U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:

a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States [1] [“federal question” jurisdiction];

b) Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party [“status of the parties” jurisdiction];

c) Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States;[2] or between a State (or Citizens thereof) & foreign States, Citizens or Subjects[3] [“diversity” jurisdiction].

These are the ONLY cases which federal courts have constitutional authority to hear! Alexander Hamilton wrote in Federalist No. 83, 8th para:

…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added]

In Federalist No. 80, Hamilton commented on each of these itemized “proper objects” of judicial authority. But here, we will consider only cases “arising under the Constitution”, which concern “the execution of the provisions expressly contained in the articles of Union” (2nd para). [4]

2. Consider State laws criminalizing abortion or homosexual conduct.  Are these “proper objects” of the judicial power of the federal courts?  Do these laws fit within any of the categories of cases which federal courts are authorized to hear?  No, they don’t! Nothing in the Constitution forbids States from criminalizing abortion or homosexual conduct!  The federal courts have no “federal question jurisdiction”, no jurisdiction based on status of the parties, and no “diversity jurisdiction” to hear such cases!

But the federal courts have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” so that they can then pretend that the cases “arise under the Constitution”!

Thus, in Roe v. Wade (1973) http://supreme.justia.com/us/410/113/case.html seven judges on the U.S. Supreme Court said a

right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153)

makes unconstitutional State laws making abortion a criminal offense! These seven judges just made up a “constitutional privacy right” which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003) http://supreme.justia.com/us/539/558/case.html six judges on the U.S. Supreme Court said a Texas Law criminalizing homosexual conduct was unconstitutional because it violated practitioners’

…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).

But nothing in our Constitution prohibits the States from making laws declaring abortion or homosexual conduct to be crimes!  Nothing in our Constitution grants “rights” to individuals to engage in these practices!

3. But federal judges used the 14th Amendment as a blank check to prevent the States from outlawing conduct which the federal judges want to legalize.  They simply make up a “constitutional right” to do those things.  Under their view, there is no limit to their powers! States criminalize child rape, but 5 judges on the Supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty & privacy right” in the 14th Amendment to have sex with children!  If these “liberty & privacy rights” mean that women can abort babies & homosexual conduct is fine; why can’t they also mean that adults can have sex with children?  Why can’t they mean that people have “liberty & privacy rights” to use crack cocaine & heroin?  What’s the limit?  There IS no limit! Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas,  said:

…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)

Kennedy just tossed Art. III §2 out the door!  He and his ideological allies recognize no limits on their power!  Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”!  And a State law prohibiting that act bites the dust.  And since federal judges also claim the right to “set policy” for all of these United States, and we have let them do it, State laws throughout the land prohibiting that act bite the dust.  And that is how we got a handful of un-elected judges setting “policy” for everyone in the country.

4. Abortion, homosexual conduct, prostitution, child sex, drugs, etc. are issues for The People of the several States to decide (subject to any restrictions imposed by their respective State Constitutions).  Congress is not authorized to make laws on these subjects, and these are not listed as “rights” in the U.S. Constitution.

5. What does the due process clause of the 14th Amendment really mean?  Professor Raoul Berger’s meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment [5] proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship.  In Ch. 11[6], Berger discussed the meaning of the “due process” clause of the 14th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law…

The clause, “due process of law” is a term of art with a well-known & narrow meaning [7] going back to the Magna Charta!  It means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! “Life” meant “life” as opposed to being lynched; “liberty” meant being out of prison instead of in prison; and “property” meant the person’s possessions.

6. So! We see that the federal judges have redefined “Liberty”. To them, “liberty” is freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government. They have no problem with making us objects to be plundered & controlled by the federal government!  They have no problem with suppressing our religion & silencing our speech.  They have no problem with imposing their values & radical conception of “liberty” on us.

But Professor Berger proves that the framers of the 14th Amendment did not understand “Liberty” as freedom from moral restraints.  The purpose of the due process clause of the 14th Amendment was to protect freed slaves from being put to death, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial!

7. When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V.  Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”.

8. Are there remedies for this judicial lawlessness?  YES! Congress should use its Impeachment Power to remove the usurping judges.  How many times have you heard they have “lifetime appointments”?  They don’t!  The only reason it ends up that way is because our representatives in Congress are ignorant & lack the Will to do the right thing.  Alexander Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force” in The Federalist No. 81, 9th para:

the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department.  This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehension on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [some had said impeachments should be tried in the supreme court]. [italics added]

Folks, ignorance & misinformation will do us in if we don’t learn the Truth pretty soon. “Everybody” says judges have “lifetime appointments”, & we believe it.  Well, now YOU know that federal judges can be impeached, convicted & kicked off the bench for usurping power!  We hear that “The Rule of Law” requires us to go along with all court decisions.  That is a Lie!  If the decision is based on an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

9. Finally, a word about our Rights:  The Constitution is about the Powers which We the People delegated to the 3 Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government!  Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define OUR Rights?

Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary & dangerous because they contain exceptions to powers which are not granted.  Thus, they afford a pretext to regulate those Rights (The Federalist No. 84, 10th Para).  Hamilton was a prophet as well as a genius in political philosophy.

Today, we have been conditioned to believe that the source of our “Rights” is the Constitution, as defined & “discovered”, from time to time, by unelected federal judges.  But D.C. v. Heller (2008) http://supreme.justia.com/us/554/07-290/ which upheld private ownership of guns, was a 5 to 4 decision!  One vote switched to the other side, and the Supreme Court will rule that we have no right to bear arms.

THIS is what happens when we substitute the Constitution for God as the Source of our Rights.  You must always insist that your Rights to Bear Arms – to defend yourself – are unalienable and come from God, not the Second Amendment!  Don’t forget that We had that Right before the Constitution was ratified.  The same principle applies to all of our Rights.  If, like the Declaration of Independence, we insist that they come from God and are unalienable, no human court or legislative body can take them away from us.

Publius/Huldah (June 22, 2009; revised July 16, 2010)


[1] Since ours is a Constitution of delegated & enumerated Powers, the U.S. must be authorized by the Constitution to act on a subject before any Treaty on that subject qualifies as part of the “supreme Law of the Land” (Art. VI, cl.2).

[2] Hamilton said this is the only instance in which the Constitution contemplates the federal courts hearing cases between citizens of the same State. The Federalist No. 80 (3rd Para from end).

[3] The 11th Amendment (ratified 1795) withdrew from the federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.

[4] Hamilton gave examples: If a State violates the constitutional provisions which prohibit States from imposing duties on imported articles, or from issuing paper money [Art. I, §10], the federal courts are in the best position to overrule infractions which are “in manifest contravention of the articles of Union. [i.e., Constitution]” (3rd Para).

[5] Prof. Berger retired in 1976 as Senior Fellow in American Legal History, Harvard University. His book is at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=28 It is fascinating!

[6] Here is the link to Ch. 11.  Read it!  You will then know more about “due process” than most federal judges! http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

[7] http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106887&layout=html&Itemid=27

June 22, 2009
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June 22, 2009 - Posted by | 14th Amendment, Article III Courts, Article III, Sec. 2, Enumerated Powers of Federal Courts

35 Comments »

  1. […] The federal court’s enumerated powers […]

    Pingback by The Balance of Powers Act - People Are Destroyed For Lack Of Knowledge - Sons of Liberty Media | August 30, 2014 | Reply

  2. […] 2 See:  Congress’ Enumerated Powers, the President’s Enumerated Powers, & the Enumerated Powers of the Federal Courts. […]

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  3. […] 2. See: Congress’ Enumerated Powers, the President’s Enumerated Powers, & the Enumerated Powers of the Federal Courts. […]

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  4. […] 2 See: Congress’ Enumerated Powers, the President’s Enumerated Powers, & the Enumerated Powers of the Federal Courts. […]

    Pingback by Parental Rights Amendment: Congressmen Are Selling You and Your Kids Out to Big Government | Give Me Liberty | July 12, 2013 | Reply

  5. […] 2 See:  Congress’ Enumerated Powers, the President’s Enumerated Powers, & the Enumerated Powers of the Federal Courts. […]

    Pingback by Parental Rights Amendment: Selling You and Your Kids Out to Big Government « Publius-Huldah's Blog | July 11, 2013 | Reply

  6. Wow, this is a terrible source of misinformation and obfuscation. I hope anyone reading this will actually look into source documents and not fall into the trap of allowing the few people (here) to “define” and “prove” the interpretations of constitutional law to their own uninformed satisfaction.

    Comment by Ken | May 5, 2013 | Reply

    • OK, Kenneth – you the poster child for Ignorant Conceit:

      YOU go thru the original source documents – The Federalist Papers – and show me my mistakes. I dare you!

      I expect you don’t know the difference between Statements of Fact and conclusions – but your post is nothing more that conclusions unsupported by any Facts or citations to original source documents.

      Comment by Publius Huldah | May 5, 2013 | Reply

    • You hoped I would look “into the source documents” and I did.

      What is stated here is not uninformed satisfaction. It is based
      on reading, re-reading and understanding all of our founding documents.
      Many others, that have actually exerted themselves and done
      the real work of reading and understanding these
      documents (if you think you
      can do that over the weekend or in a month, you are naive), understand
      what is stated here as the best of all possible interpretations of
      the meaning of the words written.

      If you want to discuss your views, just say so. The folks on this
      list are polite, have an enormous amount of patience and are never condescending with honest people. Should you elect that path, you won’t be disappointed.

      Comment by egbegb | May 7, 2013 | Reply

      • Oh, egbegb!

        Ken, I think, is a law student. He thinks he knows it all! After all, his law professors are telling him that The Constitution means whatever the supreme Court says it means; and that the supreme Court is the sole & exclusive judge of the powers delegated to it and to the other two branches of the federal government.

        And Ken doesn’t understand why his belief is poison.

        But let us see if Ken elects the path of Truth & Wisdom.

        Comment by Publius Huldah | May 7, 2013 | Reply

  7. […] ♣The federal court’s enumerated powers […]

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  8. […] ♣The federal court’s enumerated powers […]

    Pingback by The Balance of Powers Act – How People Are Destroyed For Lack of knowledge « Publius-Huldah's Blog | March 25, 2013 | Reply

  9. […] 4 For a discussion of Congress’ Enumerated Powers, go here.  For the enumerated powers of the President, go here.  For the enumerated powers of the federal Courts, go here. […]

    Pingback by God-given Rights, Man-made Anti-rights, and why “Safety Nets” are Immoral « Publius-Huldah's Blog | August 29, 2012 | Reply

  10. […] 4 For a discussion of Congress’ Enumerated Powers, go here.  For the enumerated powers of the President, go here.  For the enumerated powers of the federal Courts, go here. […]

    Pingback by God-given Rights, Man-made Anti-rights, and why “Safety Nets” are Immoral | American Conservative News Politics & Opinion - The Land of the Free | August 29, 2012 | Reply

  11. […] 4 For a discussion of Congress’ Enumerated Powers, go here. For the enumerated powers of the President, go here. For the enumerated powers of the federal Courts, go here. […]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral « Veteran Patriot | August 28, 2012 | Reply

  12. […] 4 For a discussion of Congress’ Enumerated Powers, go here. For the enumerated powers of the President, go here. For the enumerated powers of the federal Courts, go here. […]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral | The Constitution Sentinel | August 27, 2012 | Reply

  13. […] 4 For a discussion of Congress’ Enumerated Powers, go here. For the enumerated powers of the President, go here. For the enumerated powers of the federal Courts, go here. […]

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  14. […] 4 For a discussion of Congress’ Enumerated Powers, go here. For the enumerated powers of the President, go here. For the enumerated powers of the federal Courts, go here. […]

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  15. […] 4 For a discussion of Congress’ Enumerated Powers, go here.  For the enumerated powers of the President, go here.  For the enumerated powers of the federal Courts, go here. […]

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  16. […] 4 For a discussion of Congress’ Enumerated Powers, go here.  For the enumerated powers of the President, go here.  For the enumerated powers of the federal Courts, go here. […]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why 'Safety Nets' are Immoral | August 27, 2012 | Reply

  17. […] enumerated powers, the President’s enumerated powers, and the Judicial Branch’s enumerated powers.  Our Constitution does not delegate general legislative powers over the Country at large to […]

    Pingback by A Progressive Perverts the Commerce Clause, but O’Reilly Gets it Right! « A Nation Beguiled | April 18, 2012 | Reply

  18. […] does grant to the three branches of the federal government – legislative, executive, and judicial – are strictly limited and […]

    Pingback by Why Republican Politicians Sell Us Out. | American Conservative News Politics & Opinion - The Land of the Free | February 2, 2012 | Reply

  19. […] does grant to the three branches of the federal government – legislative, executive, and judicial – are strictly limited and […]

    Pingback by Why Republican Politicians Sell Us Out – American Clarion | January 30, 2012 | Reply

  20. […] does grant to the three branches of the federal government – legislative, executive, andjudicial – are strictly limited and […]

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  21. […] show you how they did it: The original intent of the 14th Amendment (one of the “civil war” amendments) was to protect freed slaves from southern Black […]

    Pingback by PJTN » Do Our Rights Come from God, the Constitution, the Supreme Court, or Congress? | January 12, 2012 | Reply

  22. […] But not so long ago, a handful of supreme court judges looked at the word, “liberty” in that clause, and claimed to have “discovered” underneath that word,  a “constitutional right” to kill unborn babies ;  and another “constitutional right” to engage in homosexual contact. […]

    Pingback by What is the source of your rights? « 3rd Circle | January 14, 2011 | Reply

  23. […] But not so long ago, a handful of supreme court judges looked at the word, “liberty” in that clause, and claimed to have “discovered” underneath that word,  a “constitutional right” to kill unborn babies ;  and another “constitutional right” to engage in homosexual contact. […]

    Pingback by Do Our Rights Come from God, the Constitution, the Supreme Court, or Congress? | Conservative Caller | December 18, 2010 | Reply

  24. […] show you how they did it:  The original intent of the 14th Amendment (one of the “civil war” amendments) was to protect freed slaves from southern Black […]

    Pingback by Do Our Rights Come from God, the Constitution, the Supreme Court, or Congress? | November 5, 2010 | Reply

  25. […] But not so long ago, a handful of supreme court judges looked at the word, “liberty” in that clause, and claimed to have “discovered” underneath that word,  a “constitutional right” to kill unborn babies ;  and another “constitutional right” to engage in homosexual con…. […]

    Pingback by Do Our Rights Come from God, the Constitution, the Supreme Court, or Congress? « Publius-Huldah's Blog | October 31, 2010 | Reply

  26. The unfortunate thing that is going on is that the morality of our government has become secular — that is to say non-existent. If the law is in place but the executive refuses to enforce it, government fails — it is a form of anarchy. Andrew Jackson did that and now three consecutive presidents have done it.

    I support what AZ is doing, recommend it to other border states but am perplexed (other than the ballot box) as to how to cause the federal executive to actually enforce the law. Illegal immigration is the source of many ills, not the least of which are low wages (10,000,000 man labor pool of minimum wage labor keeps wages low for all citizens), very much higher taxes (health care, zero or negative federal income taxes, and a high prison populations) and kidnappings in Phoenix.

    Finally about amnesty, if anyone thinks that it is OK to let someone wait in line for 5 years and ignore them while granting illegals citizenship, they are obviously looking for something other than justice [vote maybe?]

    Ed

    Comment by egbegb | May 8, 2010 | Reply

    • We’ll never get the current occupant of the white house to obey the law. BUT, we can impeach & remove him, or we can defeat him in the next election and replace him with someone who will obey the Law. In the meantime, if we take over just one branch of Congress (!), we could defund obama’s unconstitutional programs.

      Comment by Publius/Huldah | May 11, 2010 | Reply

  27. Whar worries me, horrifies me in fact, is the disconnect in most people between learned information and received information. Most people in the West seem hell-bent, literally, on autistically obeying public media pronouncements, devoid of facts, rather than using even the slightest brain power… Horrifying. And dangerous.

    Comment by Jonathan Nolan | April 10, 2010 | Reply

    • I know, Jonathan. People says things all the time which are not true; yet others hear it, believe it, & repeat it. They don’t think about it. I hear misinformation every day on FOX News. E.g., EVERYBODY says federal judges have “lifetime appointments”. People hear it, believe it, repeat it, and so mislead others.

      BUT ITS NOT TRUE! Federal judges hold office only during “good Behaviour” (Art. III, Sec. 1) & they can be impeached & removed for usurpations of power (Federalist No. 81, 9th para). If we could take over both houses of Congress, we could remove every bad federal judge in the country. Yet this is not considered b/c everyone believes the lie that they have “lifetime appointments”.

      I don’t know what to do about the giant misinformation dissemination network, i.e., The People!

      Comment by Publius/Huldah | April 10, 2010 | Reply

  28. I have a friend saying the 14th now includes the 10th because of the courts ruling incorporating the Bill of Rights to the states and will keep the states from exercising their 10th amendment right and nullifying Obamacare if it is passed into law. I don’t see how the 14th can void the 10th and nullification. What is your opinion and thoughts on this Ms.PH.

    Comment by Mike | January 13, 2010 | Reply

    • Your friend is dangerously wrong. Re-read this paper on the enumerated powers of the federal courts. (1)Remember that the federal courts have no authority to hear any case other than those enumerated at Art. III, Sec. 2 (2) Note the original purpose of Sec. 1 of the 14th Amendment! It was to permit Congress to pass laws to protect freed slaves who were being denied basic rights of citizenship! To the strict constructionist, that is all that Sec. 1 of the 14th Amendment can ever mean. To the statist, it means whatever they need it to mean in order to accomplish their nefarious purposes. (3) Read Federalist No. 78 (especially para 7): The court’s sole power is to try and decide the particular case before them (assuming they have constitutional authority to hear it)!

      One of the problems with our people of today is that they hear things on TV or where ever, uncritically and unthinkingly accept them on blind faith, and then, taking great pride in their own knowingness, repeat them to others. This is the great disinformation dissemination network which is causing us terrible harm. The brutal Truth is this: The only way to learn The Constitution is this: Take the trouble to sit down with the Constitution, The Federalist Papers, and an old American Dictionary and WORK. My purpose is to guide people in this. But because our situation today is so dangerous, and the threat of a totalitarian fascist dictatorship is so great, I’m spelling it out for them.

      See what you can do to straighten out your friend. If that doesn’t work, send him here. And join the Constitution Study Group at Tea Party Nation. You and your friend!

      Comment by Publius/Huldah | January 13, 2010 | Reply

      • Thank you Ms. PH. I agree with you. I am linking to your site here often,even from You Tube at times with my videos.

        I have also been watching Judge Andrew Napolitano’s series this week on The Constitution and Freedom. It’s a 5 part series of around 6 minutes each, but is good basics for most people that don’t know anything.Then as you said the rest is research yourself. I’ll check out the Constitution Study Group, thank you.

        I will read Federalist paper #78. I haven’t read it, thank you for your great work and research.

        Comment by Mike | January 14, 2010 | Reply


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