In the January 2011 edition of the California Lawyer, Supreme Court Justice Antonin Scalia correctly says the 14th 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 14th 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 (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] 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 (2nd 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 14th 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 (2nd 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 3rd 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 10th Amendment to the same effect.]
The Original Intent of the 14th Amendment.
4. Now, let us look at the 14th 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 14th 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 14th 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 14th 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 14th 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 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.
How Federal Judges have Perverted the 14th Amendment.
5. Activist federal judges have committed grievous offenses against the U.S. Constitution with their perversions of the 14th 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 14th 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 14th 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 14th 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 14th 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 14th 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 14th Amendment did not understand “Liberty” as freedom from moral restraints. He proves that the purpose of the “due process” clause of the 14th 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, 8th 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?
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, 3rd para from end).
3 The 11th 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.