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 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 [“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 the 14^th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship.

a) In Ch. 11 of his book, 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,  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 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

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

How Federal Judges Violate Our Constitution.

By Publius Huldah.

1. Read Article III, US Constitution.  Article III establishes the federal courts (the 3rd branch of the federal government).  Section 2 enumerates the categories of cases which 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.  Glashausser’s view is COMPLETELY WRONG & UNCONSTITUTIONAL!  Congress may not unilaterally amend the Constitution by expanding the supreme Court’s “original” jurisdiction!

b) Some conservatives, such as David Barton of Wallbuilders, say the phrase means that Congress may withdraw from the federal courts authority to hear certain types of cases.  That is also incorrect.  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 original 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. All we have is a pack of judges, law professors & others running around spewing out their own personal evolving opinions as to what they think the  provisions in Our Constitution mean.  That is the rule of men – and they want to be “the men” making the rules.

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.

Now, listen up:  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 the best 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, the proper remedy for judicial usurpations is to impeach & remove federal judges who demonstrate such contempt for Our Constitution. Others might say 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?  One possibility is that 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.  That includes the lawyers, judges & law professors who spout off on TV.  (Remember, they were educated by people like Professor Glashausser!)  So, 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.  YOU can learn the “original intent” of every clause in Our Constitution!  Then YOU can educate everyone within your spheres of influence. (You will also amaze your friends and confuse & confound our enemies.)

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. We must NOT look to the federal judges. A pox on them and their precious & perverted precedents!  PH.

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