How States can Man-up and Stop Abortion

By Publius Huldah

If the American People [and American lawyers] had been properly educated, they would know that our federal Constitution created a federal government of enumerated powers only; and that most of the powers delegated to Congress over the Country at Large are listed at Art. I, §8, clauses 1-16, US Constitution.

“Abortion” is not listed among the enumerated powers. Therefore, Congress has no power to make any laws about abortion for the Country at Large.¹ And since “abortion” isn’t “expressly contained” in the Constitution, it doesn’t “arise under” the Constitution; and since state laws restricting abortion don’t fit within any of the other categories of cases the federal courts are authorized by Art. III, §2, cl. 1 to hear, the federal courts also have no power over this issue.

So from the beginning of our Constitutional Republic until 1973, everyone understood that abortion is a State matter. Accordingly, many State Legislatures enacted statutes restricting abortion within their borders.

But in 1973, the US Supreme Court issued its opinion in Roe v. Wade and made the absurd claim that Section 1 of the 14^th Amendment contains a “right” to abortion. In Why Supreme Court opinions are not the ‘Law of the Land,’ and how to put federal judges in their place, I showed why the Supreme Court’s opinion in Roe is unconstitutional.

But Americans have long been conditioned to believe that the Constitution means whatever the Supreme Court says it means.² Accordingly, for close to 50 years, American lawyers and federal judges have mindlessly chanted the absurd refrain that “Roe v. Wade is the Law of the Land”; State governments slavishly submitted; and 60 million babies died.

So who has the lawful authority to stop abortion?

1. Congress has constitutional authority to ban abortion in federal enclaves and military hospitals

Over the federal enclaves, Congress has constitutional authority to ban abortion: Pursuant to Article I, §8, next to last clause, Congress is granted “exclusive Legislation” over the District of Columbia, military bases, dock-Yards, and other places purchased with the consent of the State Legislatures (to carry out the enumerated powers).³ Article I, §8, cl.14 grants to Congress the power to make Rules for the government and regulation of the Military Forces. Accordingly, for the specific geographical areas described at Article I, §8, next to last clause, and in US military hospitals everywhere, Congress has the power to make laws banning abortion.

2. But federal courts have no constitutional authority over abortion

Article III, §2, cl. 1 lists the ten categories of cases federal courts have authority to hear. They may hear only cases:

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

♦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];

♦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; and between a State (or Citizens thereof) & foreign States, Citizens or Subjects [“diversity” jurisdiction].⁴

These are the only cases federal courts have authority to hear. Alexander Hamilton wrote in Federalist No. 83 (8^th 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.” [boldface added]

Obviously, State laws restricting abortion don’t fall within “status of the parties” or “diversity” jurisdiction; and federal courts haven’t claimed jurisdiction on those grounds. Instead, they have asserted that abortion cases “arise under” the US Constitution!

But in Federalist No. 80 (2^nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” ⁵ [boldface added]

Obviously, “abortion” is not “expressly contained” in the Constitution. So it doesn’t “arise under” the Constitution. In Roe v. Wade, the Supreme Court had to redefine the word, “liberty”, which appears in §1 of the 14^th Amendment, in order to claim that “abortion” “arises under” the Constitution.

Section 1 of the 14^th Amendment says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [boldface added] ⁶

Do you see where it says that pregnant women have the “right” to abortion? It isn’t there! So this is what the Supreme Court did in Roe v. Wade to legalize killing babies: They said “liberty” means “privacy” and “privacy” means state laws banning abortion are unconstitutional. And American lawyers and judges have slavishly gone along with this evil absurdity ever since!

3. States must reclaim their traditionally recognized reserved power to restrict abortion!

Since “abortion” is a power reserved by the States or the People, State Legislatures should reenact State Statutes restricting abortion.

When a lawsuit is filed in Federal District Court alleging that the State Statute violates the US Constitution, the State Attorney General should file a motion in the Court to dismiss for lack of subject matter jurisdiction. He should point out that the Court has no constitutional authority to hear the case; that Roe v. Wade is void for lack of subject matter jurisdiction; that “abortion” is one of the many powers reserved by the States; and that the State Legislature properly exercised its retained sovereign power when it re-enacted the Statue restricting abortion.

The State Attorney General should also advise the Court that if the Court denies the Motion to Dismiss, the State will not participate in the litigation and will not submit to any pretended Orders or Judgments issued by the Court.

Now! Here is an interesting fact which everyone would already know if they had had a proper education in civics: Federal courts have no power to enforce their own Judgments and Orders. They must depend on the Executive Branch of the federal government to enforce their Judgments and Orders.⁷

Since President Trump has proclaimed his opposition to abortion, who believes that he would send in the National Guard to force the State to allow physicians to kill more babies within the State? Please understand: An opinion or ruling from a federal court means nothing unless the Executive Branch chooses to enforce it.⁸ THIS IS THE EXECUTIVE BRANCH’S “CHECK” ON THE JUDICIAL BRANCH! If the President, in the exercise of his independent judgment, thinks that an Order or Judgment of a federal court is unconstitutional, it is his duty imposed by his Oath of Office ⁹ to refuse to enforce it.

4. The modern day approach to dealing with absurd Supreme Court Opinions

But most pro-life lawyers will tell you we should proceed as follows: That we need to get a number of States to pass “heartbeat laws”. Pro-abortion forces will then file lawsuits in federal district courts alleging that the heartbeat laws violate Roe v. Wade and are “unconstitutional”. Most States will lose in the federal district courts. But they can appeal to one of the 13 US Circuit Courts of Appeal. Most of the States will also lose in the Circuit Court. But if just one Circuit Court rules in favor of the heartbeat law, then there will be “conflict” among the Circuits and the US Supreme Court is likely to hear the issue. This will give the US Supreme Court the opportunity [years from now] to revisit Roe v. Wade, and they might overrule it!

But I suggest, dear Reader, that we must purge our thinking of the assumption that we can’t have a moral and constitutional government unless Five Judges on the Supreme Court say we can have it. Since it is clear that federal courts have no constitutional authority over abortion, why do we go along with the pretense that they do? Why not just man-up and tell them, “You have no jurisdiction over this issue”?

Our Framers would be proud of you.

Endnotes:

¹ Accordingly, the federal Heartbeat Bill and the Pain-Capable Unborn Child Protection Act, to the extent they purport to apply outside federal enclaves and military hospitals, are unconstitutional as outside the scope of powers delegated to Congress over the Country at Large.

² The Supreme Court was created by Art. III, §1, US Constitution, and is completely subject to its terms. As a mere “creature”, it may not re-write the document under which it holds its existence.

³ In Federalist No. 43 at 2., James Madison explains why Congress must have complete lawmaking authority over the District of Columbia and the federal enclaves.

⁴ The 11^th Amendment reduced the jurisdiction of federal courts by taking from them the power to hear cases filed by a Citizen of one State against another State.

⁵ Federalist No. 80 (3^rd & 13^th paras) illustrates what “arising under the Constitution” means: Hamilton points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

⁶ “Privileges and immunities” and “due process” are ancient Principles of English Jurisprudence well-known to earlier generations of American lawyers. “Equal protection” within §1 of the 14^th Amd’t means that with respect to the rights recognized by these ancient Principles, States were now required to treat black people the same as white people. See Raoul Berger, Government by Judiciary The Transformation of the Fourteenth Amendment.

⁷ In Federalist No. 78 (6^th para), Hamilton shows why federal courts have no power to enforce their orders and judgments – they must rely on the Executive Branch to enforce them:

“… the judiciary… will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [caps are Hamilton’s; boldface added]

⁸ During the Eisenhower administration, a federal court ordered the State of Arkansas to desegregate their public schools. But the Governor of Arkansas refused to comply with the federal court orders. So President Eisenhower sent in the National Guard to force Arkansas to admit black students to a public school. See this archived article from the New York Times.

Here, Eisenhower chose to enforce the Court’s Order. But if he had decided that he would NOT enforce it, the schools would have remained segregated. Federal courts are dependent on the Executive Branch of the fed. gov’t to enforce their Orders! This is what Hamilton is talking about in Federalist No. 78.

⁹ The President’s Oath is to “…preserve, protect and defend the Constitution of the United States” (Art. II, §1, last clause). It is not to obey the Judicial Branch of the fed. gov’t.

Jefferson’s letter of September 28, 1820 to William Charles Jarvis may be read HERE at page 161.  The Works of Thomas Jefferson, ed. Paul Leicester Ford, Vol. XII.

Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place.

By Publius Huldah

Central to the silly arguments made by the “Convention of States Project” (COSP) is their claim that 200 years of Supreme Court opinions have increased the powers of the federal government (as well as legalized practices such as abortion); that all these opinions are “the Law of the Land”; and we need an Article V convention so we can get amendments to the Constitution which take away all these powers the Supreme Court gave the federal government.

But the text of Article V contradicts COSP’s claim. Article V shows that our Constitution can be amended only when three fourths of the States ratify proposed amendments. The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.

1. First Principles

Let’s analyze COSP’s silly argument. We begin by looking at First Principles:

♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. ¹

♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.²

Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; ³ and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! ⁴

 

2. Supreme Court Opinions are not “the Law of the Land”

Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!

Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.

So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.

 

3. Organic & statutory law and the totally different “common law” precedent followed in courts

Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation.

Organic Law

Black’s Law Dictionary defines “organic law” as

“The fundamental law, or constitution, of a state or nation, written or unwritten; ⁵ that law or system of laws or principles which defines and establishes the organization of its government.”

The organic laws of the United States are

• The Declaration of Independence – 1776
• Articles of Confederation – 1777
• Ordinance of 1787: The Northwest Territorial Government
• Constitution of the United States – 1787

The Articles of Confederation was our first Constitution. It was replaced by our Constitution of 1787 when it was ratified June 21, 1788. The Northwest Ordinance was superseded by the transformation of the area covered by the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].

Do you see how absurd is the claim that the Supreme Court, a mere “creature” of the Constitution of 1787, has the power to change the Organic Law of the United States?

Statute Law

Black’s Law Dictionary defines “statute law” as the

“Body of written laws that have been adopted by the legislative body.”

As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. I, §1). Acts of Congress qualify as part of the “supreme Law of the Land” only when they are made pursuant to Authority granted to Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress are not authorized by the Constitution, they are mere usurpations and must be treated as such.⁶

Common Law

The “common law” applied in courts in the English-speaking countries came from the Bible.⁷ The Bible has much to say about our relations with each other: don’t murder people, don’t maim them, don’t steal, don’t bear false witness, don’t tell lies about people, don’t be negligent, don’t cheat or defraud people, and such. The Bible provides for Judges to decide disputes between people and empowers Judges to require the person who has violated these precepts to pay restitution to the person whom he harmed. So, e.g., the Biblical prohibitions against bearing false witness and slandering people became our modern day concepts of slander, libel, and defamation. These principles were applied in the English courts from time immemorial, and are applied in American Courts. Modern day American attorneys litigate these common law concepts all the time. So if I am representing a client in an action for say, fraud, I look at the previous court opinions in the jurisdiction on fraud, and see how the courts in that jurisdiction have defined fraud – i.e., I look for “precedents” – the courts’ previous opinions on the subject – and I expect the Judge on my case to obey that precedent. ⁸

THIS is the “common law”. It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts. ⁹ As precedent for judges to follow, it is never “the law of the land”!

So, keep these three categories – organic, statutory, and common law – separate, and do not confuse court precedent with the “Law of the Land”. The latter is restricted to the Organic Law, and statutes and treaties authorized by the Organic Law.

Now let’s look at the constitutional jurisdiction of the federal courts.

 

4. What kinds of cases do federal courts have constitutional authority to hear?

The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. ¹⁰

The first category is cases “arising under this Constitution”. In Federalist No. 80 (2^nd para), Hamilton shows these cases concern “provisions expressly contained” in the Constitution. He then points to the restrictions on the authority of the State Legislatures [listed at Art. I, §10], and shows that if a State exercises any of those prohibited powers, and the federal government sues the State, the federal courts would have authority to hear the case (3^rd & 13^th paras).

So if a State enters into a Treaty, or grants Letters of Marque & Reprisal, or issues paper money, or does any of the other things prohibited by Art. I, §10, the controversy would “arise under the Constitution” and the federal courts have constitutional authority to hear the case.

Likewise, if a State passed a law which violated the Constitution – say one requiring candidates in their State for US Senate to be 40 years of age – instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts have constitutional authority to hear the case.

So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it!! ¹¹

Now let’s look at one way the Supreme Court butchered our Constitution in order to strike down State Laws they didn’t like.

 

5. How the Supreme Court violated the “arising under” clause to hear cases they have no constitutional authority to hear

Let’s use “abortion” to illustrate the usurpation. Obviously, “abortion” is not “expressly contained” in the Constitution. So abortion doesn’t “arise under” the Constitution; and the constitutionality of State Statutes prohibiting abortion doesn’t fit into any of the other nine categories of cases federal courts have authority to hear. Accordingly, federal courts have no judicial power over it. The Supreme Court had to butcher words in our Constitution in order to usurp power to legalize abortion. This is what they did:

The original intent of §1 of the 14^th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866. That Act protected freed slaves from Southern Black Codes which denied them God-given rights. ¹²

Now look at §1 where it says, “nor shall any state deprive any person of life, liberty, or property, without due process of law;”

That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes 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.

But this is how the Supreme Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at the word, “liberty” in the due process clause and said, “liberty” means “privacy”, and “privacy” means “a woman can kill her unborn baby”. ¹³

And they claimed they had jurisdiction to overturn State Laws criminalizing abortion because the issue arises under the Constitution at §1 of the 14^th Amendment! [ibid.]

The Supreme Court redefined words in Our Constitution to justify the result they wanted in the case before them.

The Supreme Court didn’t “enforce” the Constitution – they butchered it to fabricate a “constitutional right” to kill unborn babies.

And the lawyers said, “It’s the Law of the Land”; the People yawned; and the clergy said, “the Bible says we have to obey civil government – besides, we don’t want to lose our 501 (c) (3) tax exemption!”

 

6. What are the remedies when the Supreme Court violates the Constitution?

The opinions of which the convention lobby complains constitute violations of our Constitution. ¹⁴ The three remedies our Framers provided or advised for judicial violations of our Constitution are:

1. In Federalist No. 81 (8^th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution! Impeachment is their “check” on the Judicial Branch.

2. In Federalist No. 78 (6^th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution”, determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch.

3. On the Right & Duty of the States – who created the federal government when they ratified the Constitution – to smack down their “creature” when their “creature” violates the Constitutional Compact the States made with each other, see Nullification: The Original Right of Self-Defense.

Endnotes:

¹ “Creature” is the word our Founders used – e.g., Federalist No. 33 (5^th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8^th Resolution).

²Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.

³ Madison’s Virginia Report of 1799-1800 (pp 190-196).

⁴ Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. Col. Mason said it is “the basis of free Government” that only the people are competent to ratify the new Constitution, and

“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”

Madison agreed that State Legislatures were incompetent to ratify the proposed Constitution – it would make essential inroads on the existing State Constitutions, and

“…it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence….”

It’s equally novel & dangerous to say that the Supreme Court may change the Constitution under which it holds its existence.

⁵ It is said England doesn’t have a written constitution.

⁶ Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:

“…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [capitals are Hamilton’s]

See also Federalist No. 33 (last 2 paras) and Federalist No. 78 (10^th para).

⁷ John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.

⁸ Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. Instead, they involve the range of issues people fight about in State Courts: personal injury, breach of contract, business disputes, fighting over property, slander & libel, etc. In deciding these cases, federal judges are expected to follow the “common law” precedents.

⁹ In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them.

¹⁰ In Federalist No. 83 (8^th para), Hamilton says:

“…the…authority of the federal …[courts]…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…”

¹¹ James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. As to “cases arising under this Constitution”, he said:

“…That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies…”

¹² This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment.

¹³ In Roe v. Wade (1973), the Supreme Court said under Part VIII of their opinion:

“…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…”

¹⁴ Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious. But we elect to Congress people who don’t know our Constitution or The Federalist Papers; and they are unaware of their Duty – imposed by their Oath of office – to function as a “check” on the Judicial Branch by impeaching federal judges who violate our Constitution.

How SCOTUS perverted the “equal protection” clause of Sec. 1 of the Fourteenth Amendment.

By Publius Huldah

1. Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves by means of  thousands of quotes from the Congressional Debates, that the purpose of Sec. 1 of  the 14^th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the Civil Rights Act of 1866 which protected the freed slaves from  southern Black Codes which denied them their God given Rights.

2. The “equal protection” clause within Sec. 1 of the 14th Amendment says:

No State shall “…deny to any person within its jurisdiction the equal protection of the laws.”

In Ch.10 of his book, [go to page 222 of this pdf ed],  Prof. Berger shows the true meaning of the “equal protection” clause:  The “equal protection” was limited to the rights enumerated in The Civil Rights Act of 1866.  Section 1 of the Civil Rights Act of 1866 says:

“Be it enacted by the Senate and House of Representatives of the United States of America …
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

This 1866 Act thus secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property.  “Political rights” were excluded [Remember, the 14th Amendment did not give freed slaves the right to vote]. But respecting the rights listed in the Act, States were now required to treat blacks the same as whites. THAT is what the “equal protection” clause in the 14th Amendment means.

3.  So, the “equal protection” clause is not a carte blanche invitation for federal judges to thereafter prohibit States from making any “distinctions” or “classifications” on any subject whatsoever in any of their State Laws or State Constitutions which five (5) judges on the US Supreme Court don’t agree with!

But that is what federal judges have been doing.  And they have decided that, respecting marriage, “classifications” and “distinctions” based on male and female genders are unconstitutional as in violation of the equal protection clause.

What unadulterated RUBBISH emanates from the fetid recesses of the minds of the federal judges in this Country.

Will these judges next say that State Statutes which prohibit close relatives from marrying make “distinctions” and “classifications” which violate the equal protection clause?

4. To my fellow Citizens, I say: For Heaven’s Sake, People! Use your heads! God gave you a brain – use it!

5. To my fellow lawyers, I say: Watch The Matrix, Part I. Pay close attention to the passage where Morpheus is offering the blue pill and the red pill to Neo. Morpheus later says, “I am trying to free your mind, but I can only show you the door. You are the one who has to walk through.” Note the descriptions of the Matrix thereafter and of the people who are still plugged in. What you have been told, beginning with your first year in law school, is a lie.  Lawyers who accept the lies are plugged in to the Matrix. The red pill signifies opening your eyes.  I offer you the red pill.  Open your eyes.

Sept. 12, 2015; revised Oct 30, 2018

 

Babies Don’t Provide Anchors!

By Publius Huldah

Section 1 of the 14th Amendment says, in part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…”

One of the purposes of Section 1 was to extend citizenship to freed slaves.

This Section does not provide that illegals who invade our Country and drop a baby here are automatically the parents of a US citizen.

The key is “subject to the jurisdiction thereof”: Consider the French ambassador and his lovely young wife stationed in Washington, DC. She gives birth to a child here. Her child was born here. But is her child “subject to the jurisdiction” of the United States? No! The child is subject to the same jurisdiction as his parents: France.

Consider the American Indians: Sec.1 of the 14th Amendment did NOT confer citizenship on American Indians. They were not “subject to the jurisdiction of the United States” – they were subject to the jurisdiction of their tribes.

An illegal alien who invades our Country is in the same status as the French Ambassador’s wife. The baby she drops here is “subject to the jurisdiction” of the Country she left.

So the 14th Amendment does NOT confer citizenship on babies of illegals born here – just as it does not confer citizenship on the babies of foreign diplomats stationed here.

Pursuant to Art. I, Sec. 8, clause 4, US Constitution, Congress may make laws deciding how people become naturalized citizens.

But Sec. 1 of the 14th Amendment does not confer citizenship status on babies born here of illegal aliens.

This is important.

For a deeper understanding of this important issue, see Professor Edward Erler’s brilliant essay,  Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny

 

To see the debates (on the language I quoted at the top) in the US Senate on May 30, 1866, go HERE  

and start reading in the center column, under the subheading, RECONSTRUCTION.   Fascinating.

revised Nov. 1, 2018

Searching for “Marriage” in the Fourteenth Amendment

By Publius Huldah.

During April 2015, the US Supreme Court heard oral arguments in Obergefell v Hodges and consolidated cases. The questions presented for the Court to decide are: ¹

1. Does the Fourteenth Amendment require a State to license a marriage of two people of the same sex?

2. Does the Fourteenth Amendment require a state to recognize a marriage of two people of the same sex when their marriage was lawfully licensed and performed out of state? ²

Section 1 of the 14^th Amendment says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” [emphasis mine] ³

Obviously, §1 says nothing about “marriage” or “homosexuality”. So how can it be said to authorize the supreme Court to FORCE States to accept same sex marriage?

Simple! All they have to do is redefine “liberty” in §1 to get it to mean whatever they need it to mean in order to get the result they want in the cases before them.

And that is precisely what the supreme Court has been doing. In Roe v. Wade (1973), they looked at the word, “liberty”, in §1 and said it means “privacy”, and “privacy” means you can kill your baby. The Court said under Part VIII of their Opinion:

“…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…”

In Lawrence v. Texas (2003), they looked at the word, “liberty”, in §1 and said it means “consulting adults have the right to engage in private acts of homosexual sodomy”:

“We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment…” (1^st para under II)

“…The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct …” (3^rd para up from end) [emphasis mine]

Do you see? The supreme Court uses the word, “liberty”, in §1 of the 14^th Amendment to justify practices they approve of and want to force everybody else to accept. ⁴

And by claiming that these practices constitute “liberty rights” which arise under §1 of the 14^th Amendment, they evade the constitutional limits on their judicial power.

I’ll show you.

The Judicial Power of the Federal Courts is Strictly Limited by The Constitution!

 The Constitution does not permit federal courts to hear any case the Judges want to hear. Instead, a case must fall within one of a few categories before federal courts have jurisdiction to hear it.

Article III, §2, clause 1, lists the cases federal courts have the delegated authority to hear. They may hear only cases:

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

2. 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]; and

3. Cases between two or more States; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and certain cases between a State and Citizens of another State or Citizens or Subjects of a foreign State [“diversity” jurisdiction].

Alexander Hamilton writes in Federalist No. 83 (8^th 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…” [emphasis mine]

If a case does not fit within one of these categories, federal courts may not lawfully hear it.

In Federalist No. 80, Hamilton explains the categories of cases over which federal Courts have jurisdiction.

Since the “right” to same sex marriage is claimed to arise under §1 of the 14^th Amendment, we will focus on Hamilton’s discussion of cases “arising under this Constitution”; or, as Hamilton puts it, cases:

“…which concern the execution of the provisions expressly contained in the articles of Union…” (2^nd para) [emphasis mine]

“Expressly contained”. Hamilton then gives examples of such cases: 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]”

Do you see?

So! Where are provisions addressing marriage and homosexuality “expressly contained” in our Constitution?

The answer any competent 8^th grader should be able to give is, “Nowhere!”

Fabrication of “constitutional rights” in order to Usurp Judicial Power.

So now you see how Justices on the supreme Court evaded the constitutional limits on their judicial Power: They fabricated individual “constitutional rights” which they claimed were to be found in §1 of the 14^th Amendment so that they could then pretend that the cases “arise under the Constitution”!

But power over abortion, homosexuality, and marriage is nowhere in our Constitution delegated to the national government over the Country at Large. ⁵

The supreme Court has usurped power over these objects. Their opinions are void for lack of jurisdiction and are proper objects of nullification. ⁶

It is time for The People and The States to man-up and smack down the supreme Court. Scrape the Court’s barnacles off Our Constitution! State Legislatures must make laws directing all State and local governments and Citizens to ignore such usurpatious opinions of the supreme Court.

Endnotes:

¹ The briefs of the parties are HERE. The Questions Presented are set forth on pages 2 & 3.

² If a same-sex marriage is contracted in one State pursuant to the laws of that State, are other States obligated, under the “full faith and credit clause”, to acknowledge the marriage as valid? Article IV, §1 states:

“Full Faith and Credit shall be given in each State to the public Acts, records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” [boldface mine]

At the time of our Framing, “marriage” does not appear to have been encompassed within “public Act or record”. In Federalist No. 42 (next to last para), Madison comments on the clause in connection with criminal and civil justice. An Act of the First Congress (May 26, 1790) prescribed the mode in which the public Acts, Records, and judicial proceedings in each State, shall be authenticated so as to take effect in every other state.  An amendment to the 1790 Act (March 27, 1804), addresses “records” which may be kept in any public office of the State. But this cannot have included marriage records because a number of the original 13 States recognized common law marriage. And even for States which required formalities (e.g., Virginia), marriages could be accomplished by publication of banns and subsequent recordation in church and parish records – which were not “public records”. Marriage licenses issued by the States were a later development. The meaning of the clause which prevailed when the Constitution was drafted and ratified remains until changed by formal Amendment to the Constitution. So the full faith and credit clause does NOT require States to recognize marriages contracted under the laws of other States.

³ Professor Raoul Berger shows in Government by Judiciary: The Transformation of the Fourteenth Amendment, that the purpose of §1 of the 14^th Amendment was to extend citizenship to freed slaves, and provide constitutional authority for the federal Civil Rights Act of 1966 which protected freed slaves from southern Black Codes which denied them basic rights.

Professor Berger shows in Chapter 11 (page 222 of his book) that “due process” is a term with a “precise technical import” 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! Berger stresses that “due process of law” refers only to trials – to judicial proceedings in courts of justice.  It does not involve judicial power to override State Laws!

In short, the due process clause of the 14^th Amendment was to protect freed slaves from being lynched, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial! It had nothing to do with “liberating” the American People from moral laws established thousands of years ago and codified into their own State Codes.

Section 1 of the 14^th Amendment is badly written, uses vague terminology, and violates the “expressly contained” rule. One has to read, as Professor Berger did, the discussions in Congress and the text of the Civil Rights Act of 1866 to know what § 1 is about. But our moral and spiritual decline began in the early 1800s; from there, intellectual collapse quickly follows.

⁴ They even claim the right to keep on redefining “liberty” to include additional practices they might in the future want to force everyone to accept. They said in Lawrence v. Texas:

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (majority opinion, next to last para) [emphasis mine].

⁵ Because Congress has “exclusive Legislation in all Cases whatsoever” over the federal enclaves described at Art. I, §8, next to last clause; Congress may make laws addressing these objects for those limited geographical areas. See also Art. IV, §3, cl 2. And pursuant to Art. I, §8, cl. 14, Congress may make laws addressing these objects for active duty military personnel.

⁶ The short and clear paper HERE proves that nullification of unconstitutional acts of the national government is the remedy advised by our Framers. One cannot honestly dispute this. PH

May 11, 2015

Parental Rights: God-given and Unalienable? Or Government-granted and Revocable?

By Publius Huldah

Our Declaration of Independence says:

   “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.– That to secure these rights, governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”  (2^nd para) [emphasis mine]

So!  Rights come from God; they are unalienable; the purpose of government is to secure the rights God gave us; and when government takes away our God given rights, it’s time to “throw off such Government”.  

That is our Founding Principle.

Let us now compare our Founding Principle with the U.N.’s Universal Declaration of Human Rights.  It enumerates 30 some “rights”, among which are:

“Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 21 … 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections …

Article 29 … 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.” [all boldface mine]

So! Rights are enumerated; they come from man [constitutions or laws]; governments may do whatever a majority of people want them to do [instead of securing rights God gave us]; and rights may be limited by law & are subject to the will of the United Nations [not God].

Now, let’s look at the Parental Rights Amendment (PRA) from the website of parentalrights.org  and compare it with the U.N.’s Universal Declaration of Human Rights:  ¹

“SECTION 1

The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.

SECTION 2

The parental right to direct education includes the right to choose public, private, religious, or home schools, and the right to make reasonable choices within public schools for one’s child.

SECTION 3

Neither the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.

SECTION 4

This article shall not be construed to apply to a parental action or decision that would end life.  [all boldface mine]

SECTION 5
No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.”

So!  Under the PRA, parental rights come from the Constitution – not God.  They are only “fundamental” rights, not unalienable rights.  They are enumerated rights, the extent of which will be decided by federal judges. ² And these “fundamental” rights may be infringed by law when the federal or State governments have a good reason for infringing them.

And even though parental rights.org uses the U.N. Declaration on the Rights of the Child to terrorize parents into supporting the PRA; ³ the PRA itself  is the repudiation of our Founding Principles that Rights come from God and are unalienable, and that the sole purpose of civil government is to secure the rights GOD gave us; and adoption of the U.N. theory that rights come from the State, will be determined by the State, and are revocable at the will of the State.

Let’s turn to Michael Farris’ paper posted July 9, 2013 in Freedom Outpost.  His paper followed my initial paper where I addressed, Section by Section, the PRA of which Farris is principal author.  He is also Executive Director of parental rights.org

1. Mr. Farris’ rationale for the PRA: Scalia’s Dissent in Troxel v. Granville (2000)

Farris cites Scalia’s dissent to support his own perverse theory that unless a right is enumerated in the federal Constitution, judges can’t enforce it, and the right can’t be protected.

But Farris ignores the majority’s holding in Troxel, and misstates the gist of Scalia’s dissent.  I’ll show you.

This case originated in the State of Washington, and involved a State Statute (§26.10.160(3)) addressing visitation rights by persons who were not parents.  Two grandparents filed an action under this State Statute wanting increased visitation of their grandchildren.  The mother (Granville) was willing to permit some visitation, but not as much as the grandparents wanted.

This State family law case got to the U.S. supreme Court on the ground that the “due process clause” of the 14^th Amendment was at stake.

And what did the supreme Court say in Troxel v. Granville ?

“…In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children…”

“…We therefore hold that the application of §26.10.160(3) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters.”  [all boldface mine]

Do you see?  The supreme Court has already “discovered”, in Sec. 1 of the 14^th Amendment, a parental right to make decisions about the care, custody, and control of children.

Now! In order to understand Scalia’s dissent, one must first learn:

• That the powers of the federal courts are enumerated and strictly defined; and
• The original intent of Sec. 1 of the 14^th Amendment, and how the supreme Court perverted it.

These are explained in detail here: Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation, & Gay Marriage.   In a nutshell, the linked paper shows that federal courts may lawfully hear only cases falling within the categories enumerated at Art. III, Sec. 2, cl. 1, U.S. Constitution.  One of these categories is cases:

“…arising under this Constitution…”

In Federalist Paper No. 80 (2^nd para), Alexander Hamilton says that before a case can properly be said to “arise under the Constitution”, it must:

“…concern the execution of the provisions expressly contained in the articles of Union…” [emphasis added]

So! Does our federal Constitution “expressly contain” provisions about abortion?  Homosexual sex?  Homosexual marriage?  Parental rights?  No, it does not.

Since these matters are not delegated to the federal government, they are reserved to the States and The People (10^th Amendment). The federal government has no lawful authority over these issues.

Well, then, how did the supreme Court overturn State Statutes criminalizing abortion and   homosexual sex, and State Statutes addressing parental rights?

They used the “due process” clause of Sec. 1 of the 14^th Amendment to usurp power over these issues.  Section 1 says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [boldface mine]

Professor Raoul Berger proves in his book, Government by Judiciary: The Transformation of the Fourteenth Amendment, that the purpose of the 14^th Amendment was to extend citizenship to freed slaves and protect them from southern Black Codes which denied them basic rights of citizenship.

Professor Berger also shows (Ch. 11) that “due process” is a term with a “precise technical import” 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!

Professor Berger stresses that “due process of law” refers only to trials – to judicial proceedings in courts of justice.  It does not involve judicial power to override State Statutes!

Justice Scalia understands this.

And now, you can understand Scalia’s dissent.  What he actually says is:

• Parental rights are “unalienable” and come from God (Declaration of Independence). They are among the retained rights of the people (9^th Amendment).   [Parental rights don’t come from the 14^th Amendment!]
• The Declaration of Independence does not delegate powers to federal courts.  It is the federal Constitution which delegates powers to federal courts.
• It is for State Legislators and candidates for that office to argue that the State has no power to interfere with parents’ God-given authority over the rearing of their children, and to act accordingly. [The People need to elect State Legislators who understand that the State may not properly infringe God given parental rights.]
• The federal Constitution does not authorize judges to come up with their own lists of what “rights” people have ⁴ and use their lists to overturn State statutes.  [That is what the supreme Court did when they fabricated “liberty rights” to abortion and homosexual sex, and overturned State Statutes criminalizing these acts.]
• The federal Constitution does not mention “parental rights” – such cases do not “arise under the Constitution”.   So federal courts have no “judicial power” over such cases.

In his closing, Scalia warns against turning family law over to the federal government:

“…If we embrace this unenumerated right … we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”  [emphasis mine]

Do you see?  “Parental rights” is a state matter; and parents need to replace bad State legislators.

But the PRA delegates power over “parental rights” to the federal government and makes it an enumerated power. 

So!  When Farris says:

“4. The Parental Rights Amendment does not give the Judiciary legislative power but constrains the judiciary’s exercise of its existing power.”

His words are false.  The PRA transforms what is now a usurped power over parental rights seized by the supreme Court by perverting Sec. 1 of the 14^th Amendment [the majority opinion in Troxel illustrates this],  to an enumerated power of the federal government.

2. The PRA expressly delegates to the federal and State governments power to infringe God-given parental rights!

Mr. Farris asserts that the PRA gives no power to Congress over children because he – the principal author of the PRA – purposefully left out the language which appears in other amendments that “Congress shall have power to enforce this article by appropriate legislation”.

So!  What did Farris put in his PRA?  Look at his SECTION 3:

“Neither the United States nor any State shall infringe these rights without demonstrating that its governmental interestas applied to the person is of the highest order and not otherwise served.” [emphasis mine]

The wording assumes the federal and State governments will be making laws “infringing” parental rights!  And because of the PRA, such laws will be constitutional! ⁵

The only issue will be whether such acts of Congress [the Legislative Branch of the federal government] “serve the government’s interest”.  And who will decide?  The federal courts [the Judicial Branch of the federal government] will decide.

The same goes for State Statutes and State courts.

Furthermore, Acts of Congress or State Statutes need only recite the boilerplate language that the law “serves the government’s interest, etc.”, and it will go to the courts clothed with a presumption of correctness.

3. The PRA is not “just like” the Second Amendment

Mr. Farris says the PRA is

“… just like the Second Amendment in this regard. The Second Amendment gives no level of government the power to regulate guns. (Any such power comes from some other provision of the Constitution [state or federal]). And the Second Amendment is a limitation on the exercise of such powers.”

Rubbish!

WE THE PEOPLE did not delegate to the federal government power to restrict our arms.

The 2^nd Amendment shows that WE THE PEOPLE really meant it when we declined to give the federal government enumerated power to restrict our arms.

So!  As shown here, all federal laws and rules of the BATF pertaining to background checks, dealer licensing, banning sawed off shotguns, etc., are unconstitutional as outside the scope of the enumerated powers delegated to the federal government, and as in violation of the 2^nd Amendment.

The PRA is not “just like” the 2^nd Amendment because the PRA is an express delegation of power over children and parental rights to the federal and State governments!

4. Pen Names

Publius is the pen name used by Alexander Hamilton, James Madison, and John Jay when, during 1787 and 1788, they wrote The Federalist Papers to explain the proposed Constitution and induce The People to ratify it.

Huldah is the prophet at 2 Kings 22.  The Book of the Law had been lost for a long time.  When it was found, it was taken to Huldah who gave guidance about it to the king and his priests.

Do you see?  And it’s about Our Country – not my personal glory, fame, and fundraising.

My qualifications?  My work speaks for itself.

5. Learn the Constitution and understand the PRA?  Or put your trust in Farris?

My previous paper is about the PRA and our Constitution.  It isn’t about Mr. Farris.

But Farris’ response is about persons:  429 of his 2,044 words are devoted to his illustrious self; 170 words are spent to disparage Publius Huldah.

I teach the original intent of our Constitution so that our People can become what Alexander Hamilton expected them to be:

“… a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority…”  Federalist Paper No. 16 (next to last para)

To that end, I have published some 50 papers proving that original intent, using The Federalist Papers as the best evidence of that original intent.

We must all do our civic duty and learn our Founding Principles and Constitution so that we can learn to think for ourselves and help restore our Constitutional Republic.

But Farris says you should believe in … him.  He says: 

“6. Who are you going to believe—a trusted advocate for parental rights or an anonymous blogger?”

He doesn’t ask you to learn and think – he asks you to believe … in him.

6. An Alternative Organization: National Home Education Legal Defense (NHELD)

NHELD has been warning for years about the Parental Rights Amendment.  NHELD

“…does not believe in blindly following the word of anyone. NHELD … does not believe in just directing families to act in unison on the basis of an opinion that NHELD … has formed on its own. NHELD … believes in an informed, empowered citizenry, who is able to fight for freedom effectively…”

NHELD advises:

“…individuals not to take the word of anyone else about what … legislation says, but to read the text for themselves …”

7. How do Governments “secure” our God given Rights?

Our rights must be “secured” from people & civil governments who seek to take them away.

For an illustration of how the enumerated powers delegated to the federal government enable it to “secure” our God given rights to life, liberty & property, see James Madison Rebukes Nullification Deniers, under the subheading, Our Founding Principles in a Nutshell. The federal government isn’t to secure these rights in all ways – just in those ways appropriate to the national government of a Federation of Sovereign States.

The powers reserved by The States and The People enable the States to secure these rights in the ways appropriate to States.  States secure our right to life by prosecuting murderers, drunk drivers, quarantining people with infectious deadly diseases, etc.  States secure our property rights by prosecuting robbers; by providing courts for recovery for fraud, breach of contract; etc.

Our federal Constitution secures our God given rights by strictly limiting the powers of Congress, the powers of the President, and the powers of the federal courts.

Civil governments are controlled by limiting their powers.

To delegate to the federal government express power to infringe “parental rights” under the pretext of “protecting” such rights is absurd! But that is Farris’ argument. 

Parents!  Justice Scalia gives excellent advice: elect to your State Legislature people who understand that your responsibilities to your children are determined by God alone.

We must stop looking for the magic pill, roll up our sleeves, man up, and fix our own States.

Conclusion

The PRA is a radical transformation of our conception of Rights from being unalienable gifts of God to the UN Model where “rights” are granted by government and revocable at the will of government.  This is being sold to you as a means of “protecting” your parental rights!  But it transfers power over children to the federal and State governments.  You are being told to trust the “experts” and “believe” what they tell you.  But if the PRA is ratified, the federal and State governments will have constitutional authority to infringe your “parental rights”.   And you will have no recourse.

POSTSCRIPT Added August 22, 2013:  You need to understand that the poisonous & deceptive “parental rights amendment” is what would give the federal government and the state governments CONSTITUTIONAL AUTHORITY to implement the hellish plan described in the attached link.  Once they have constitutional authority you will have no recourse but to take up arms.

http://thecommonsenseshow.com/2013/08/17/the-mother-of-all-conspiracies-aimed-at-our-children/#comment-10633

Endnotes:

¹Craigers61 pointed out that Section 3 of the PRA is a paraphrase of [Article 29] of the UN [Declaration] in which:

“… all of the rights “given” by the UN earlier in the document can be taken back if any right goes against the UN’s “mission.” It’s a big finger on the chess piece in which the Political power can take back the right granted at any time they deem…

…Also, do you see the other problem here? The STATE grants the right to the parents! … In classical liberalism, the philosophy that founded the USA, all rights are INALEIANBLE! They reside in the human being themselves! They cannot be given, they cannot be taken and they cannot be circumscribed by the STATE…”

² Bob in Florida asks Farris:

“But, what you say we must do – pass the Parental Rights Amendment – to defeat the Scalia argument that there is no legal text to cite to allow parents to have rights to direct their children’s education, medical care, etc., requires that we do exactly what the writers of the Constitution did not want to do – enumerate each and every right we have.

Their reason was that this would require that we enumerate each and every right and to leave one out would imply we don’t have that right. Their chosen approach was to only define the powers given to the government and all others were reserved to the States or the People.  [emphasis mine]

Are you not advocating we do exactly what they didn’t want to do – enumerate each and every right?”

³ Congress may lawfully ratify only treaties which address enumerated powers. Since “parental rights” & “children” are not enumerated powers, any ratified treaty addressing such would be a proper object of nullification.  But if the PRA is ratified, then these will be enumerated powers, and the Senate will have lawful authority to ratify the UN Declaration on the Rights of the Child.

⁴ It is GOD’s prerogative to decide what Rights we have.  Not mans’.

⁵ Un-anonymous blogger Doug Newman pointed out four years ago that:

“…The PRA actually puts a constitutional blessing on federal intrusion into parenting…” 

July 28, 2013; postscript added August 22, 2013

Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage

By Publius Huldah

In the January 2011 edition of the California Lawyer, Supreme Court Justice Antonin Scalia correctly says the 14^th Amendment to the U.S. Constitution does not apply to sex discrimination or sexual orientation cases. ¹

Activist federal judges, on the other hand, see the 14^th Amendment as a blank check to legalize whatever conduct they happen to approve of, such as abortion, homosexuality, & gay marriage.

But these activist judges are destroying federalism by bringing about a massive transfer of power from The People and the States to their own black-robed selves.

What Are the Enumerated Powers of the Federal Courts?

1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III, Sec. 2, cl. 1 enumerates the cases 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 [“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 parties” jurisdiction];

c) Between several 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 its Citizens) & foreign States, Citizens or Subjects ³ [“diversity” jurisdiction].

These are the ONLY cases federal courts have permission to hear!  Alexander Hamilton says in Federalist No. 83 (8^th 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] ⁴

In Federalist No. 80, Hamilton comments on each of these enumerated objects of federal judicial authority.  But here, we will consider only cases “arising under the Constitution”, which, in the words of Hamilton [which I ask you to note most carefully],

“…concern the execution of the provisions expressly contained in the articles of Union”  (2^nd para)  [emphasis added]

Are Provisions About Abortion, Homosexuality, or Marriage “Expressly Contained” in the U.S. Constitution?

2.  Let us consider State Laws which made abortion or homosexual contacts to be crimes.  Let us also consider the recent case, Perry v. Schwarzenegger, where federal District Court Judge Vaughn Walker ruled that Proposition 8, an Amendment approved by the People of California to their State Constitution, violates the “due process” and “equal protection” clauses of the 14^th Amendment.  Proposition 8 says, “Only marriage between a man and a woman is valid or recognized in California”.

Are State Laws addressing abortion and homosexual contact proper objects of the judicial power of the federal courts?  Are amendments to State Constitutions defining “marriage” a proper object of the judicial power of the federal courts?

Above, I asked you to note most carefully Hamilton’s statement in Federalist No. 80 (2^nd para) that the judicial authority of federal courts extends to cases which “…concern the execution of the provisions expressly contained in the articles of Union”.

Is anything about abortion, homosexual contact, or marriage “expressly contained” in the U.S. Constitution?  No! Those words and concepts do not appear at all in the U.S. Constitution.

In the 3^rd para of Federalist No. 80,  Hamilton gives examples of cases “which concern the execution of the provisions expressly contained in the articles of Union”:  If a State violates the provisions of Art. I, Sec. 10 which prohibit States from imposing duties on imported articles, or from issuing paper money, the federal courts have jurisdiction to overrule such infractions as are “in manifest contravention of the articles of Union.”

Does Art. I, Sec.10 Prohibit STATES from Making Laws about Abortion, Homosexuality & Marriage?

3. Article I, Sec.10 enumerates the acts prohibited to the States.  Does anything in Art. I, Sec.10 prohibit States from criminalizing abortion or homosexual contact, or restricting marriage to one man and one woman?  No! No! and No! Consider also Hamilton’s words in Federalist No. 32 (last para):

“… the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor … is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.” [emphasis added]

So!  Since the U.S. Constitution contains no grant of power over abortion, homosexuality, or marriage to the federal government; and since Art. I, Sec. 10 does not prohibit the exercise of authority over those objects to the States, authority over them remains with the STATES or the People!  [See also the 10^th Amendment to the same effect.]

 

The Original Intent of the 14^th Amendment.

4.  Now, let us look at the 14^th Amendment, which activist federal judges have seized upon to circumvent the FACT that the U.S. Constitution shows that jurisdiction over abortion, homosexual contact, and marriage is reserved by the States or the People.

Section 1 of the 14^th Amendment (ratified 1868) says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

What does this mean?  Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves by means of  thousands of quotes from the Congressional Debates, that the purpose of Sec. 1 of  the 14^th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866 which protected the freed slaves from southern Black Codes which denied them their God given rights.

a) In Ch. 11 of his book [go to page 245 of this pdf ed], Prof. Berger shows the true meaning of the “due process” clause of the 14^th Amendment:

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

“Due process of law” is a term with a “precise technical import” 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 confinement instead of in confinement; & “property” meant the person’s possessions.

Professor Berger points out [and I ask you to note it most carefully] that “due process of law” refers only to trials – to judicial proceedings in courts of justice.  It most manifestly does NOT involve judicial power to override Acts of a Legislature!

b) In Ch.10 [go to page 222 of this pdf ed],  Prof. Berger shows the true meaning of the “equal protection” clause of the 14^th Amendment:

“…nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”

Professor Berger proves that this equal protection was limited to the rights enumerated in The Civil Rights Act of 1866.  Section 1 of that Act says:

“Be it enacted by the Senate and House of Representatives of the United States of America … That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” [emphasis added]

This 1866 Act secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property. “Political rights” were excluded [Remember, the 14^th Amendment did not give freed slaves the right to vote]. But respecting the rights listed in the Act, States were now required to treat blacks the same as whites. THAT is what the “equal protection” clause in the 14^th Amendment means.

How Federal Judges have Perverted the 14^th Amendment.

5. Activist federal judges have committed grievous offenses against the U.S. Constitution with their perversions of the 14^th Amendment:

a) They have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” from the 14th Amendment so that they can then pretend that the cases “arise under the Constitution”, thereby claiming “federal question” jurisdiction!

Thus, in Roe v. Wade (1973), seven judges on the 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 a State Law making abortion a criminal offense!  Those seven judges just made up a “constitutional privacy right” which they said was in the 14^th Amendment and which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003), six judges on the supreme Court said a Texas Law criminalizing homosexual contact was unconstitutional because it violated practitioners’

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

Those six judges just made up a “constitutional liberty right” to have homosexual contact!

In Perry v. Schwarzenegger, Judge Walker asserted that “Gender no longer forms an essential part of marriage” (Opinion p.113); and determined that the “due process” clause of the 14th Amendment contains a “fundamental right” to marry persons of the same sex (p.114, etc)!

He just made up a 14th Amendment “due process right” to marry persons of the same sex!

But abortion, homosexual contact, & marriage are not provisions expressly contained in the U.S. Constitution. So the federal courts have no “federal question” [or “status of the parties” or “diversity”] jurisdiction to hear these cases!

b) They have evaded the constitutional limits on their powers by redefining ⁵ the “due process” clause of the 14^th Amendment from its original meaning of ensuring that freed slaves got fair trials before they could be deprived of life, liberty or property, to seizing power to nullify State Laws they don’t like, and Amendments to State Constitutions they don’t like!

Thus, the supreme Court in Roe v. Wade and Lawrence v. Texas used the “due process” clause to seize power to overturn State Laws criminalizing abortion and homosexual contact; and Judge Walker used the “due process” clause to overturn the Will of the People of the State of California restricting marriage to one man and one woman.

Again, the “due process” clause refers only to judicial proceedings:  That freed slaves couldn’t be lynched, deprived of their freedom, or have their property taken away except pursuant to the judgment of their peers after a fair trial.

“Due process” never involved judicial power to override Acts of  the Legislature of a Sovereign State or Amendments to State Constitutions. The sole purpose of the “due process” clause was to ensure that freed slaves got FAIR TRIALS!

c) They have evaded the constitutional limits on their powers by redefining the “equal protection” clause of the 14^th Amendment from its original meaning of requiring States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property; to prohibiting the States from making any “distinctions” or “classifications” in their State Statutes or Constitutions the federal judges don’t like!

Thus, in Perry v. Schwarzenegger, Judge Walker asserted that Proposition 8 violates the “equal protection” clause of the 14th Amendment because it “disadvantages gays and lesbians without any rational justification” (Opinion p. 135).

6.  So!  Activist federal judges have been using the “due process” clause of the 14^th Amendment to override acts of State Legislatures which outlaw conduct 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! State Legislatures criminalize child rape, but 5 judges on the supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty and privacy right” in the 14^th Amendment to have sex with children!  If these “liberty and privacy rights” mean that women can abort babies, and  homosexual contact is lawful; why can’t they also mean that adults can have sex with children?  Why can’t they mean that people have “liberty and privacy rights” to commit any crime?  What’s the limit?  There IS no limit! Justice 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, Sec. 2 out the door!  He and his ideological allies recognize no limits on their judicial power!  Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”!  And a Law made by a State Legislature prohibiting that act bites the dust. And since supreme Court judges 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 also bite the dust.  And that is how we got a handful of  supreme Court judges setting “policy” for everyone in the country.

7. Abortion, homosexual contact, marriage, prostitution, child sex, drugs, etc. are issues reserved to the States or The People. The federal government is not granted power in the Constitution over these objects, and they are not prohibited by Art. I, Sec. 10, to the States.

The Supreme Court’s Radical Redefinition of “Liberty”

8.  The quote from Justice Kennedy shows that federal judges have redefined “Liberty”: They see “liberty” as freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government – to the contrary, they are determined to force their radical conception of “freedom” down our throats.

But Professor Berger proves that the framers of the 14^th Amendment did not understand “Liberty” as freedom from moral restraints. He proves that the purpose of the “due process” clause of the 14^th Amendment was to protect freed slaves from being lynched, confined, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial; and the purpose of the “equal protection” clause was to require States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property.

9.  Do you see how federal judges have usurped powers never granted to them and how they are destroying our Constitution?  If we do not insist that federal judges adhere to the “original intent” of the U.S. Constitution (and this original intent is readily ascertainable, Justice Scalia’s comment to the contrary notwithstanding), then the Rule of Law can not be reborn, and we will fall.

The Remedy for Judicial Lawlessness

10. Are there remedies for this judicial lawlessness?  YES! Congress must use its Impeachment Power to remove the usurping judges.  They serve during “good Behaviour” only (Art. III, Sec. 1) and do not have “lifetime appointments”.  Alexander Hamilton addressed judicial usurpations and the judiciary’s “total incapacity to support its usurpations by force” in Federalist No. 81, 8^th 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…”

Now you know that federal judges can be impeached, convicted & removed from the bench for usurping power. The Rule of Law does not require us to go along with all court decisions.  Rather, if  the decision is an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

Our Rights do NOT Come from the Constitution!

11. 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, and predate & pre-exist the Constitution! We created the Constitution and the federal government!  Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define our Rights?

Endnotes:

¹   The California Lawyer seems to have removed its January 2011 article with the interview with Justice Scalia.  Isn’t that odd? But you can read excerpts from it at the Wall Street Journal:  http://blogs.wsj.com/law/2011/01/04/scalia-on-controverisal-stuff-i-dont-even-have-to-read-the-briefs/

State legislatures may make laws re abortion, homosexuality, marriage, etc. as permitted by their State Constitutions.  But as these are not among the enumerated legislative powers of Congress, Congress is not permitted to make laws on these subjects.  Neither are federal judges.

² Hamilton says this is the only instance where the Constitution contemplates the federal courts hearing cases between Citizens of the same State. (Federalist No. 80, 3^rd para from end).

³ The 11^th Amendment (ratified 1795) withdrew from 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 What a mind!  All those Hamilton haters who parrot the lies about how Hamilton was a “statist”, etc, demonstrate a profound ignorance of The Federalist Papers & The U.S. Constitution.

⁵ 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”. PH

January 10, 2011; revised Sept. 23, 2011; July 20, 2013; Sep. 11, 2015

The Federal Court System, The “Exceptions Clause”, & The 14th Amendment:

By Publius Huldah.

1. Article III, US Constitution, establishes the federal courts (the 3rd branch of the federal government).  Section 2 enumerates the categories of cases federal courts are allowed to hear.  Section 2 also distributes the “judicial power” (the authority to hear cases) between the supreme Court and the lower federal courts.

Article I, Sec. 8, clause 9, authorizes Congress to create courts inferior to the supreme Court. Accordingly, Congress has set up some 94 federal district courts and 13 circuit courts of appeal (11 numbered circuits plus the DC Circuit & the Federal Circuit).   This Chart shows the territorial jurisdiction of the 11 numbered circuit courts.  Federal district courts are scattered throughout these United States.  Click on your circuit to see the locations of the federal district courts in your State.

The trials of most federal cases take place in the district courts.  The loser may appeal to the circuit court of appeal for that district.  The supreme Court hears some appeals from the circuit courts of appeal.

2. But in TWO of the categories of cases enumerated in Art. III, Sec. 2, the Constitution grants “original” [i.e., “trial”] jurisdiction to the supreme Court:  (1) All cases affecting Ambassadors, other public Ministers & Consuls; and (2) Those in which a State is a Party.  For these TWO categories of cases, the supreme Court acts as the trial court.

In all the other enumerated categories of cases, “…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

What does the quoted phrase (the so-called “exceptions clause”) mean?

a) Alex Glashausser of Washburn University School of Law, says the phrase means that Congress may extend the supreme Court’s “original” (trial) jurisdiction to include more cases than just (1) Those affecting Ambassadors, other public Ministers & Consuls, and (2) Those in which a State is a Party. But  what he says is not true.  Congress may not unilaterally amend the Constitution by expanding the supreme Court’s “original” jurisdiction!

b) Some,  such as David Barton of Wallbuilders, claim the phrase means that Congress may withdraw from the federal courts authority to hear certain types of cases.  It is true that the federal courts have been hearing cases which they are not authorized by Art. III, Sec. 2, to hear; but the remedy for that is impeachment & removal of the usurping judges.  The “exceptions clause” does not permit Congress to diminish the enumerated powers of the federal courts!

c) Alexander Hamilton explains the genuine meaning of the phrase in Federalist No. 81. When we have sworn to support the Constitution, then we must defend it or we violate our Oaths. If we reject the original intent of the Constitution – the meaning it was understood to have when it was ratified – then we don’t have a Constitution.

3. Let us examine these views:

a) As to Professor Glashausser:  The Constitution dictates the categories of cases for which the supreme Court has “original” (trial) jurisdiction, and the categories for which it has appellate jurisdiction! Hamilton explains this in Federalist No. 81:

…Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal….(at para 13) [boldface added, caps in original]

…Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.” (at para 15) [boldface added, caps in original]

Congress may not unilaterally amend the Constitution by adding categories of cases for which the supreme Court will have “original” jurisdiction!  Someone, please!  Send Professor Glashausser a copy of The Federalist Papers!  He is teaching our future lawyers & judges!

b) As to David Barton:  The Constitution lists the categories of cases which federal courts may hear.  In Federalist No. 80, Hamilton explains each category of case.  ANY RESTRICTIONS OR EXPANSIONS OF THAT LIST CAN ONLY BE DONE BY AMENDMENT TO THE CONSTITUTION!  Look at the Eleventh Amendment (ratified 1795).  It withdrew from federal courts the power to hear a certain category of case.  So! Congress may NOT make a law diminishing the constitutionally granted powers of the federal courts.

It is true that federal judges have long been hearing cases which they have no constitutional authority to hear.  Such judicial usurpation is explained in a previous paper:  What Are the Enumerated Powers of the Federal Courts? But one remedy for federal judges hearing cases which they have no constitutional authority to hear is to impeach them & remove them from the bench (Federalist No. 81, 8th para).

What are some cases which federal judges have been hearing which they have no constitutional authority to hear?  For starters, they have no constitutional authority to hear cases seeking to overturn State laws criminalizing abortion & sodomy. Those cases do not fall within any of the categories enumerated at Art. III, Sec. 2.   Judges on the supreme Court know they have no constitutional authority to hear such cases!  So! This is what they did to get around Our Constitution:

Article III, Sec. 2 permits federal courts to hear [among other enumerated categories] “all Cases…arising under this Constitution…”.  So!  In order to claim authority to hear cases seeking to overturn State laws criminalizing abortion and sodomy, federal judges looked at the word, “liberty” in Sec. 1 of the 14th Amendment, and found hiding under that word a constitutional right to kill babies and another constitutional right to engage in sodomy!  They fabricated “constitutional rights” so that they could then overturn State laws criminalizing those practices. Once baby-killing & sodomy were elevated to the status of “constitutional rights”, they then could be said to “arise under this Constitution”.  Do you see?  And we have to stand up when these people walk into a room!

The federal courts also have no constitutional authority to hear cases involving prayer in public places throughout the States.  The 1st Amendment restricts only the powers of CONGRESS.  We The People may do whatever We like respecting prayer in public places, and the federal courts have no authority whatsoever to interfere.  How the supreme Court usurped power to ban religious speech in Our Country is explained in The TRUTH about “Separation of Church and State”. Does the Supreme Court have constitutional authority to ban religion from the public square?

As stated above, a proper remedy for judicial usurpations is to impeach & remove federal judges who demonstrate such contempt for Our Constitution. Others have suggested that Congress could make a law, perhaps under the “necessary & proper” clause (Art. I, Sec. 8, last clause), specifying that federal courts may NOT hear cases involving abortion, sodomy, prayer at high school football games, etc. But what would be the result?  Federal judges would see the list as a blank check to hear every case which was not listed. So Congress would need to keep amending the law to add new categories of off-limits cases.  Or, perhaps the federal judges would do as they have done with Our Constitution:  just ignore the list altogether.

4. So, then, what does the following phrase at Art. III, Sec. 2, clause 2, actually mean?

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Hamilton tells us (in his usual exhaustive detail) in the last five paragraphs of Federalist No. 81. The quoted phrase merely addresses technical issues respecting the mode of doing appeals:  Will the appeal be heard by a jury, or by judges?  Will the appellate court be able to revisit matters of Fact, or will it be restricted to reviewing rulings on matters of Law?  Will the mode of doing appeals be the same for cases involving the “common law” and the “civil law”, or will it be different for each? Congress will decide. That’s it, Folks!

5.  What should you learn from this paper?

a)  When you hear people talking about The Constitution, don’t believe a word they say. They are usually wrong.  You must look it up yourself in The Federalist Papers. Mary E. Webster makes it easy.  She has “translated” The Federalist Papers into modern English. They are now easy to understand.

b) We need to radically change the way we have been looking at the World.  There really is an objective Reality out there:  Some things are True, other things are False.  Some things are Good, other things are Evil.  We need to start paying attention to objective standards again. We need to embrace the Good, the Noble, and the Intelligent.  We need to reject the Bad, the Low, and the Stupid.  The Constitution has an objective meaning. That meaning is revealed in The Federalist Papers, The Declaration of Independence, Madison’s Journal of the Federal Convention, and (for word meanings) an old American Dictionary. THAT is where we look to find the original intent of Our Constitution.

July 16, 2010

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” (2^nd 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th Amendment did not understand “Liberty” as freedom from moral restraints.  The purpose of the due process clause of the 14^th 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, 9^th 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, 10^th 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)

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[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 (3^rd Para from end).

[3] The 11^th 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]” (3^rd 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