Publius-Huldah's Blog

Understanding the Constitution

The Trial of The Lawsuit Against The State of Arizona: Must Supreme Court Judges Obey The Constitution?

By Publius Huldah

In my last paper, I showed that Our Constitution requires that the federal government’s lawsuit against Arizona and Gov. Brewer be tried in the supreme Court; and that federal district court judge Susan Bolton has no constitutional authority to preside over the trial.

But some lawyers responded that the case is properly before Judge Bolton because Congress & the supreme Court have said that cases where a State is a Party may be tried in federal district court.

Thus we come to The Pivotal Question of Our Time: Will we restore the Rule of Law, which prevails when people in the federal government obey The Constitution?  Or will we side with those who seek to expand the Rule of Men, where people holding Power do whatever they want?

1. The Federalist Papers were written during 1787-88 by Alexander Hamilton, James Madison, and John Jay, to explain the proposed Constitution to The People and to induce them to ratify it. Thus, The Federalist is the most authoritative commentary on the genuine meaning of Our Constitution.  And at a meeting of the Board of Visitors of the University of Virginia on March 4, 1825 at which Thomas Jefferson and James Madison were present, the following resolution selecting the texts for the Law school, was passed:

…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83)  [emphasis added]

So! Thomas Jefferson, Author of the Declaration of Independence, and James Madison, Father of The Constitution, acknowledged the high authoritative status of The Federalist Papers.  They saw The Constitution as having a fixed meaning which one could learn by consulting The Federalist!

2. But supreme Court judges soon refused to submit to The Constitution as explained by The Federalist Papers. In 1907, former Chief Justice Charles Evans Hughes said, “…the Constitution is what the judges say it is…”.  Judges thus rejected the objective standard provided by The Federalist, and substituted their own subjective interpretations. Law schools embraced this subversion:  Instead of teaching The Constitution as a set of fixed principles explained by The Federalist, they taught supreme Court opinions which say Congress may do whatever it pleases. They also taught that supreme Court judges have unbridled authority to say what the Constitution means. Law schools thus produced generations of constitutionally illiterate lawyers & judges who have been indoctrinated with the monstrous Lie that Our Constitution means whatever judges on the supreme Court say!  And because these lawyers failed in their sacred duty to think, and uncritically accepted what they were told, Our Country is on the brink of destruction.

Roger Pilon of the Cato Institute understands this pivotal issue. He said:

Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.

Now you see how we came to this sorry state where lawyers insist on a view of Art. III, §2 which is, to the eye of reason, contrary to The Constitution: They don’t obey The Constitution – they obey the supreme Court, as they were conditioned in law school to do.

3. Let us review Art. III, §2:

Clause 1 lists the categories of cases federal judges are permitted to hear.

Now look at clause 2:  The FIRST SENTENCE lists two of the categories set forth in clause 1 (cases affecting “Ambassadors, other public Ministers and Consuls” & “those in which a State shall be Party”) and says that in ALL such cases, the supreme Court SHALL have original [trial] jurisdiction.

The SECOND SENTENCE says that in all the other cases set forth in clause 1, “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.”

The Constitution is clear!  So is The Federalist.  In No. 81, Hamilton sums it up:

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.” (15th para) [emphasis  in original]

See also, as to the supreme Court’s original jurisdiction, No. 81 (13th para).

As to the “exceptions & regulations” respecting the supreme Court’s appellate jurisdiction, see No. 81 (last 6 paras):  the exceptions & regulations merely address the mode of doing appeals.

I explained the original intent of  the “exceptions clause” in a previous paper.    But the most eloquent explanation of this whole issue is that given by Dr. Alan Keyes in his recent article at World Net Daily, and in his linked article on his website.

The supreme Court once knew that Congress could not reduce its original jurisdiction!  In Marbury v. Madison (1803), the supreme Court discussed Art. III, §2, clause 2:

…If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance…(p 174)

…When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original… [emphasis added] (p 175)

Marbury v. Madison got it right – THAT is what the Constitution & The Federalist Papers actually say!  But today, supreme court jurisprudence has “evolved” to embrace a view which contradicts The Constitution, The Federalist Papers, and Marbury v. Madison!

4. So!   In a recent article at World Net Daily, Bob Unruh quoted constitutional lawyers Herb Titus and John Eidsmoe to the effect that the “exceptions & regulations” language in the SECOND SENTENCE of clause 2 (which defines the supreme Court’s appellate jurisdiction), permits Congress to reduce the supreme Court’s original jurisdiction granted in the FIRST SENTENCE of clause 2!

Why do lawyers say this?  Because Congress at 28 USC § 1251 et seq., & the supreme Court (e.g., Case v. Bowles (1946) at page 97) said so; and they go by what the supreme Court last said, not by the Constitution!   Lawyers are trained to obey the supreme Court – they do not actually believe that the supreme Court is subject to The Constitution. Like Charles Evans Hughes, they see the supreme Court as above The Constitution!

5. Mr. Titus is also quoted as saying, “Could you imagine every case that involves a state as a party being before the Supreme Court? The court would be so loaded with those kinds of cases.”  Mark Levin (audio rewind for 08/03 at 69) said there was a “200 year history”, “states are sued all the time”, “every time a state is sued it goes to the supreme court?”, and that only lawyers “who have no idea of what the history is” would say that only the supreme Court has jurisdiction to conduct the trial of the case against Arizona!

I do not wish to pillory good men. But really, gentlemen!  THINK!  In addition to failing to consider the actual text of Art. III, §2, clause 2;  you have failed to consider two obvious points:

ONE:  As Art. III, §2, clause 1 shows on its face, the judicial Power of the United States extends only to cases of “federal” or “national” cognizance.  Hamilton explains each category of case in Federalist No. 80, and shows why each is a proper object of the federal courts. Read it, and you will see that the judicial Power does not extend to matters of internal concern to States. Furthermore, in Federalist No. 83 (8th para), Hamilton said:

…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]

Yes!  The powers of the federal courts are enumerated!  Federal courts are not supposed to hear any case which does not fall within the categories listed at Art. III, §2, clause 1.  If the supreme Court would stay within its enumerated powers, its case load would be greatly reduced. Read No. 80 carefully, and much will become clear – to open minds.

TWO: Congress’ powers are also enumerated! Congress has constitutional authority over  international commerce and war. Domestically, it has authority to establish an uniform commercial system (bankruptcy laws, a monetary system, weights & measures, patents & copyrights, a limited power over interstate commerce, and mail delivery.)  It has authority to establish an uniform Rule of Naturalization. The Amendments granted Congress powers to protect former slaves, voting rights, and lay income taxes. That’s about it!

This is why Hamilton was able to say in Federalist No. 81 (15th para),

…the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. [emphasis added]

Congress’ law making power is so limited by The Constitution that it has authority to  make only a few laws affecting States such that litigation involving a State would arise!

But most of the laws made by Congress for over 100 years are unconstitutional as outside the scope of the legislative powers granted to Congress. And since the judicial Power of the federal courts includes all Cases arising under “the Laws of the United States”, the federal courts are clogged with cases arising out of unconstitutional federal laws!

Requiring the supreme Court to obey the Constitution [that’s a novel idea!] and conduct the trials of cases of federal cognizance where a State is Party, would be a check on the powers of Congress. If the supreme Court’s trial docket were clogged with cases arising out of unconstitutional federal laws, perhaps it would do its duty & declare the laws unconstitutional!

6.  To Herb Titus, John Eidsmoe, Mark Levin, and all the attorneys who contacted me citing the US Code and more recent supreme Court decisions which purport to say the supreme Court is not required to exercise original jurisdiction in ALL cases of federal cognizance in which a State is a Party:    –

Take another look!  If we are to restore our Constitutional Republic with its federal form of government, we all must reconsider and reexamine everything we think we “know” about The Constitution.  Because most of what we think we know, just ain’t so. PH

August 16, 2010; revised August 23, 2010.

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August 16, 2010 - Posted by | Arizona Lawsuit, Article III Courts, Article III, Sec. 2, Marbury v. Madison, Original and appellate jurisdiction

18 Comments »

  1. […] This is an excellent common sense article below…I hope Oklahoma remembers this judge when the Judicial  Retention Elections come up there and vote this judge out like they did in Iowa earlier this month. The judge that unconstitutionally  put a stay on the “peoples vote” up held her verdict today. No Federal Judge has the Constitutional authority to rule in ANY State cases, only the Supreme Court… […]

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    Pingback by Sharia Law: An Oklahoma judge rules against the public vote « www.offmyfrontporch.com | November 22, 2010 | Reply

  2. […] the trial of the lawsuit against the state of Arizona, perhaps reading this will clarify what the Constitution and those who wrote it demands in such […]

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    Pingback by Must Supreme Court Judges Obey The Constitution? | ConstitutionClub.org | September 18, 2010 | Reply

  3. An intriguing and well-reasoned paper, PH.

    I was one of those lawyers who accepted the law skool line. Not that it was a sinister effort to steer young minds away from an explosive truth. It was and is more resignation at having to plough thru vast seas of existing cases and scale the heights of stare decisis. Too, who doesn’t have an interest in the present unconstitutional dispensation?

    I am fond of pointing out there isn’t a state bar association, a bar president, or a state supreme court justice that or who will rail against the betrayal of the Constitution during the New Deal or any other time. I see much mewling and yowling about the “rule of law,” civility, diversity, and pro bono work but on something so vital as the health of the Constitution there’s not a champion to be found.

    I eventually did get it, in case you’ve been holding your breath, but it really took Solzhenitsyn’s The Gulag Archipelago to make U.S. constitutional law come into focus for me. I was never the same after reading that.

    I have since mightily resented the cavalier treatment of the New Deal volte face as something that only merited the admittedly witty characterization of it as “the switch in time that saved nine.” Ha, ha. But what about that “unitary government” deal that stands the Constitution on its head? Anything worth spending a week on?

    Law school is like drinking from a fire hose and I suppose any introductory course in con law (Hmmmm. Now that’s an interesting twist that that familiar term) would bog down if every perfidious Supreme Court decision were beat to death. Still, I dare say I’d teach such a course with a heck of a lot more sarcasm and skepticism than I witnessed from my prof.

    I think too we’ve enjoyed a justifiable complacency re the fundamental decency, stability, and rationality of America and it was reasonable to believe that tomorrow would be like today and today was good. But now I think people are uneasy and looking for principles to inform their independent judgment. I don’t ever remember such popular interest in the nitty gritty of the Constitution, and your blog a superb contribution.

    I hold Mark Levin in high esteem and, as I also like to think, no one’s as good as the best thing he’s done and no one’s as bad as the worst thing he’s done. Clearly he’s incorrect. It is ironic for a man of his deep antipathy to the unprincipled, expedient expansion of the Commerce Clause to argue that your interpretation would open the floodgates and swamp the Sup. Court yet ignore the immense caseload of the federal court system that depends on the unconstitutional opinions of that court regarding the Commerce Clause. As you pointed out.

    OT, I’ve not got the research capability just now to explore the “uniform Rule of Naturalization” provision in Art. I, Sect. 8. Again, respecting the powers of the state of Arizona, is the congressional power to establish rules of naturalization a power that encompasses the power to control everything whatsoever that has to do with immigrants, illegal or not? I can see where the federal government could countermand any incorrect determination by a state official on the question of an alien’s right to be in the country or the validity of a citizen’s claim to be a citizen but it’s not immediately clear to me that a state does not have at least the concurrent power to apprehend probable aliens beyond the border areas.

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    Comment by ace006 | September 13, 2010 | Reply

  4. I join the others above in thanking you for your brilliantly lucid compositions. I am learning a great deal and I promote your articles regularly on Facebook.
    I read Jerryhorse’s comment. For one as schooled in law as he apparently is, I was surprised to see the weakness of his argument against accepting the Federalist Papers as an authority on the meaning of the Constitution. It consisted mainly of speculation as to what Jefferson may really have thought, and character attacks on nearly everyone he mentioned. Someone once said that ad hominem attacks by an attorney usually indicate the weakness of his case.
    Indeed, attacks on a person’s character in place of discussing the facts of an issue are the emblem of Liberal Democrats; I wonder what Jerryhorse really believes.
    That the Federalist Papers were written by the Founders to explain in detail why they wrote what they did, and exactly what they meant by it, is evidence enough for it’s authority.
    I also want to say that the observations regarding objective TRUTH in your reply to Jetstream are so true. Relativism in modern Christianity and philosophy have distorted our sense of reality, and have lead to astoundingly absurd notions. I sometimes hear un-thinking liberals make absurd statements such as “Violence is always wrong; the Nazis did terrible things, but so did the United States.” I like to respond with the following example: If a rapist beats a woman senseless during his attack, his violence is definately wrong. And if her husband pulls the rapist off of his wife, and beats him into submission, his violence is ordinately right!

    The blind devotion to equivocating disparate moral positions is not uncommon among smug sophisticated liberals. At the heart of their arguments is a revulsion towards the idea that some things are ordinately right, and others ordinately wrong. Guilt is a horrible feeling. But the correct remedy is to repent and receive forgiveness. Their remedy is to reject the idea that they have anything to feel guilty about.

    Thanks again for speaking and writing the TRUTH. Your keen perceptions and no nonsense polemic are like water to a man in the desert.
    Take heart when you despair; your work is helping more than you know.
    Bill

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    Comment by BILL | September 8, 2010 | Reply

    • Wow, Bill! I am overwhelmed and delighted to be seen and understood so clearly by you. I keep C.S. Lewis’, The Abolition of Man, by my bed and am dedicated to the TRUTH that some things are ordinately Right, and other are ordinately Wrong. I see LAW as woven into the Fabric of Reality and as a thing of Beauty. But the enemy’s and his minions’ hatred of LAW is implacable.

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      Comment by Publius/Huldah | September 8, 2010 | Reply

      • Ah, I thought you might be a fan of CS Lewis. I love that little book, THE ABOLITION OF MAN. I bought a box of CS Lewis books over 30 years ago and that one is my favorite.
        Obama and company seem to view TRUTH with contempt. They twist themselves through pretzel logic to justify their actions. I have a screen shot of MSNBC with the headline “NEW LAW MAKES IT A CRIME TO BE ILLEGAL ALIEN”. It is the sort of thing you would expect to see on news bloopers or some such show. But it was no mistake. And that is depressing.
        But I look ahead to the time we will look back at this period with the advantage of knowing how things finally turned out. We will be able to joke about it then, while at present I get angry and depressed sometimes. I think things had to get this bad in order to wake us up. But the worst may be ahead of us; flooding the economy with worthless paper always leads to inflation, a tax which hits the poor the hardest.
        But we have to keep preaching the truth. And your help in this regard is enormous, so thank you. I used to think of the Constitution as something only attorneys could really fully comprehend. My uncle was a Federal Bankruptcy Judge, Rufus W. Reynolds. I used to listen to him talk with other attorneys who would stop by for dinner some evenings when I was at his home. The law is interesting to me, but I am unschooled in the principles and professional terminology.
        But I have learned that attorneys like to make it hard for others to follow; it makes them necessary. And liberals especially like it to be hard to follow, since they are breaking the law everyday.
        I will keep sending people your way. Just keep writing!

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        Comment by topcat1957 | September 8, 2010 | Reply

  5. Thank you for your articles, P/H.
    I do want to take issue with you regarding the 16th Amendment which has been abused by the Federal Government and is probably as much a destructive force on individual liberty as your main theme regarding the jurisdiction of the SC.
    You said, “TWO: Congress’ powers are also enumerated! Congress has constitutional authority over international commerce and war. Domestically, it has authority to establish an uniform commercial system (bankruptcy laws, a monetary system, weights & measures, patents & copyrights, a limited power over interstate commerce, and mail delivery.) It has authority to establish an uniform Rule of Naturalization. The Amendments granted Congress powers to protect former slaves, voting rights, and lay income taxes. That’s about it!”

    As I am sure you are aware, the Constitution speaks in terms of Direct Taxation on the one hand and Excises, Duties, etc. on the other hand. The laying of income taxes on the American public has been enforced as a direct tax by the Executive Branch by the IRS.
    The debate over what is direct taxation and what is indirect taxation pre-dates the US Constitution. The drafters of the Constitution required that direct Taxes must be apportioned among the states. Article I, Section 8. It was the responsibility of the States to pay these direct taxes to the Federal Government and up to the States to collect and enforce the procurement of them.

    The taking of the earnings of a person’s labor directly by the Federal Government is unconstitutional despite the 16th Amendment and is probably the most egregious single violation of the Constitution since Lincoln declared war on the Southern Confederated States.

    On another quick note, Hamilton’s authorship of the Federalist Papers is suspect for much of his veracity. Hamilton was a Federalist through and through with his sites on American Imperialism. There is much literature about how Hamilton told convenient lies to get the citizens of NY to ratify the Constitution. Hamilton, the original Federal Tax collector is said to have gotten what he deserved on the Wihauken Banks of the Hudson River while he died a slow and agonizing death with his mistress and wife taking turns at his side.

    On another note, is there anyone who exemplifies the old saying that Power corrupts and Absolute Power corrupts absolutely more than Thomas Jefferson? You cite the Board of Visitors resolutions from March 1825 when Jefferson was one year and 4 months from his death bed as being a strong authority for citing the Federalist Papers, and well they might be, but as with virtually all pronouncements of authority, they should be taken with a grain of salt. Jefferson changed his position on many things during his long life and one of them certainly was his acceptance of anything that Hamilton might have stood for during the Constitutional Convention. While I am sure that a mid-life Jefferson would have stood for limited power of the Judiciary, in his post-presidential years, he had flipped quite a bit. His acceptance of the Federalist Papers as authoritative views of what the Founding Fathers believed needs to be examined a bit more than simply accept them on face value. In fact, there is much about the Constitution that needs to be examined closely. One key book is the “Economic Interpretation of the Constitution” by Columbia Professor Charles A.Beard who in 1913 almost single-handily exposed most of the Founding Fathers as elitist self-serving aristocrats who stood to make fortunes from the formation of the new govenment at the cost of the yoemen farmers of New England and the Mid-Atlantic states. The Whiskey Rebellion in PA and the Shays Rebellion are indicative of the failure of the average man to agree with the formation of the new government and the cost to them from its requirements of gold and silver to be used to pay all debts. These yeomen farmers returned from the Revolutionary War with no gold or silver but with fiat Continentals and were unable to pay their debts so there were more foreclosures of farms on a percentage basis than there is in today’s economic depression.
    Personally, I do believe in limited government, especially Federal Government, but I also believe that the Constitution was a win-win for the very wealthy elitists. To take an unexamined, strict original construction point of view is dangerous.
    In my opinion, the Libertarian-Anarchistic view of limited government found in Murray Rothbard’s four volume “Concieved in Liberty” is an important read for anyone who wants to understand the forces that were in play in the formation of the union. It bothers me that in the 21st Century, we should be so enamored by what the elitist Founding Fathers put together to benefit themselves and their wealthy constituents that we should shun interpretation by elitist judges sitting on the Supreme Court as the years drift by.
    While you do make a very good argument for following a strict intepretation of Article III of the Constitution, I am of the opinion, that Hamilton got most of what he wanted and understood that the Constitution could be manipulated by men to allow for the American hegemony of today. But human interpretation is always going to exist in a world where people are only human. Yes, if the Supreme Court’s ruling in Marbury v. Madison was upheld, perhaps Congressional legislative overkill would have been defeated over the years. The fight to rein in the Federal Judges is a good fight which I will join together with the abolishment of the Slave Tax on human labor.

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    Comment by Jerryhorse | September 4, 2010 | Reply

    • Jerry,
      (1) I have discovered something astonishing since I began writing for the public. Prepare yourself, and I will disclose to you my astonishing discovery: To keep my papers short, I find I must limit my papers to ONE topic per paper! My last paper was not about the 16th Amendment! That is why I did not address it.

      (2) Alexander Hamilton: I trust I do not detect in you any pleasure over Hamilton’s painful end. To take satisfaction in other people’s suffering would be very wicked. Some call it evil. I have heard others say almost the exact thing. Seems the Hamilton-haters are all reading the same stuff. I think for myself.

      Hamilton’s writings in The Federalist are masterpieces on limited constitutional civil government. Did he have flaws? Yes. Do you? I expect so. Have YOU given Posterity as great a gift as did Hamilton? And I do not listen to gossip, nor do I read it. I do not read biographies written by Hamilton-haters who have nothing to distinguish themselves but their hatred of a man whose intellect far surpassed their own. I read Hamilton’s actual writings – they are superb. I do not read second-hand works by gnats.

      (3) Thomas Jefferson and the other founders: I detect in you a strong bias against the Founders – hatred even. What is the difference between “flipflopping”, and a gradual maturation of one’s thinking? To use the first, reveals hostility. To use the second, reveals respect. Besides, I have read much of Jefferson’s writings and I see a basic consistency throughout. Was Jefferson perfect? No. Are you? No. Have YOU given the World a gift which even comes close to the magnificance of The Declaration of Independence? If so, please send it to me immediately, as I would love to read it.

      And explain to me, if you can, just how The Constitution with its limited, defined and enumerated powers delegated to the federal government, created opportunities for self-serving elitist aristocrats to profit at the expense of The People. Go on! Lay it all out. I catch on quickly, so all you have to do is lay out the outline.

      I do not presume to know your mind, but if you are not a hater of the concept of limited constitutional government, then why do you serve those who do hate it? The American People are committing suicide. I have read that the Catholics of old used to beat their backs with whips when they had lustful thoughts. Today, American commit suicide by trashing Our Founders and Framers. Skimming a biography is easy work. Reading through the Federalist is more work. It is easier to do the former, present oneself as an “expert” on Hamilton, and go around trashing Hamilton while filled with the pleasure of one’s own “knowingness”.

      Most of your post consisted of a trashing of the Framers. WHY? Whose side are you on?

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      Comment by Publius/Huldah | September 6, 2010 | Reply

  6. I think you for writing this essay. I just wish I were as optimistic about our ability to correct the course of our nation.

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    Comment by Marion | August 24, 2010 | Reply

    • Marion, I must pull myself up every morning by my bootstraps to keep going. True, the Ignorance of the American People is mindboggling. But there is always hope. And never give up. Fight to our last breath. Enough of us can turn it around – with God’s Help. We need a massive re-education of the People. So, Learn. Then Speak out & Teach those in your spheres of influence.

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      Comment by Publius/Huldah | August 24, 2010 | Reply

      • And PH, when you say “enough of us” can turn it around, it takes only a tiny minority, if we use tactical wisdom.

        I have sent you an email about my new book, ‘This Bloodless Liberty’, the thesis of which includes the assertion that the AmericaAgain! Indictment Engine(tm) would only require something like half of 1% of the American people to put perennial teeth in the Tenth Amendment, and put an end — over time — to almost every usurpation and arrogation by our federal creature.

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        Comment by David | September 19, 2010 | Reply

  7. Thanks so much for your response PH. I think your essays are having some effect in the blogosphere! Besides Alan Keyes and Mark Levin, I found two popular blogs, written by attorneys, that are responding to your observation that the Supreme Court has original exclusive jurisdiction in Art. III cases where a State is a party. volokh.com/2010/08/19/why-wasnt-united-states-v-arizona-filed-in-the-supreme-court-from-the-outset

    and legalinsurrection.blogspot.com/2010/08/why-not-file-us-v-arizona-in-us-sup-ct.

    Of course, being attorneys, they hesitate to abandon stare decisis without some grumbling.

    Don’t despair. As more and more people wake up (due to stubborn truth revealers like yourself shaking them out of bed), I believe we will correct our course with God’s grace. So please, please continue your fine work. And thank you!

    The superb Victor Davis Hanson has pajamasmedia.com/victordavishanson/with-a-wimper-or-a-bang some words of encouragement.

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    Comment by jetstream | August 20, 2010 | Reply

  8. Nice job PH. You’ve compiled a good responsive summary to your challengers. I came across three articles that might interest you as they follow up on your clear sighted observation of what should have been perfectly obvious…the plain text of the Constitution.

    This first article takes note of Mark Levin’s inconsistent constitutional interpretations and asks whether political expediency is perverting conservativism. Excellently researched and written by Linda Melin at her blog constitutionallyspeaking . Linda states,
    “the problem we have today is the usurping of natural law by both parties, but especially those who claim to be constitutional conservatives and spout off about original intent, yet they also turn a blind eye when natural law is inconvenient or not expedient to their political cause.”
    Liberal Conservatism: A Bane to the Survival of a Constitutional Republic .

    I remember being perplexed when I first heard Levin disparage people who were asking questions about presidential constitutional eligibility. What could be a more basic obligation of a citizen? And here again he makes a flawed judgment regarding proper jurisdiction of the AZ case, as you have pointed out.

    The second article, written in 2003, describes a talk given by Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit to members of Harvard Law School’s Federalist Society. Judge Jones said that the question of what is morally right is routinely sacrificed to what is politically expedient and that the change has come because legal philosophy has descended to nihilism. She says, “the integrity of law, its religious roots, its transcendent quality are disappearing.”
    American Legal System Is Corrupt Beyond Recognition, Judge Tells Harvard Law School

    It seems the law has degraded to tyrannical incomprehension.

    The last article is about a Senate candidate in Nevada who filed a criminal complaint against a county judge, with a request for a grand jury hearing. He learned that a grand jury had not been convened in his county for more than 35 years. He believes that the grand jury system has been usurped and asks, “does the state have the authority to pick and choose which portions of the U.S. Constitution to follow, and can they amend those portions of the U.S. Constitution to suit a state’s right?”
    Judge denies grand jury hearing; complaint headed to NV Supreme Court

    These are truly historic times. Can we recover? How do we start? What say you PH?

    Like

    Comment by jetstream | August 20, 2010 | Reply

    • Thank you! Those are great! I do not know whether we can recover. I know lawyers well and believe that restoration will not come from them (although you found 3 allies I didn’t know about).
      So I’ve been trying to make the case to The People: Some get it, most don’t.

      The hurdles are many and high: Pride, laziness, blindness, ignorance, and a complete inability to THINK, are in themselves formidable obstacles. Further, the enemy has convinced many of the more ignorant on our side that Alexander Hamilton was a bad man. So there are many “patriots” who pride themselves on the depth of their hatred of Hamilton. They inform me he was a “statist”, a “monarchist”, etc. They all claim to have read The Federalist Papers, but judging from the way they write, I expect the Federalist is way over their heads. One needs Hamilton to understand The Constitution! That is why the enemy singled Hamilton out to discredit. And many gullible fools, who seek to elevate themselves over a man who was vastly their intellectual superior, have jumped on the “Hate Hamilton” bandwagon. The enemy exploits the envy, malice & spite of people supposedly on our side! Or they hear bad stuff about Hamilton and just repeat it so they can strut around filled with the pride of their own “knowingness”!

      Bad theology has paralyzed and neutralized the Christians. Innumerable Christians tell me in pious tones that “your home is not here – it is in Heaven”; or “any day now, we are going to raptured out of here, so why worry?”; or “yes, things will just get worse & worse until Jesus returns to rescue us, and there is nothing we can do but wait”. The pastors have shirked their duty, they have failed us, they have preached submission to the evil which is overtaking our Land.

      Bad philosophy has finished off just about everyone else: Pragmatism (which arose in America during the late 1800s) and Existentialism (which took over after WWII).

      Few people are willing to rethink what they have always believed. Because pragmatism & existentialism deny the existence of objective TRUTH, our People don’t care about TRUTH – they actually believe that everything is a matter of opinion. Ideas are like a buffet lunch: just walk by and pick out the ones you like! There is no other criteria for choosing than, “I like it” or “I don’t like it” – “I agree” or “I don’t agree”.

      But sometimes I am more optimistic. Despair is an old companion whom I have to fight every day!

      Liked by 1 person

      Comment by Publius/Huldah | August 20, 2010 | Reply

      • PH, *d’accord*; anyone who has ever worked for restoration of anything worth the effort, fought despair occasionally.

        Consider the King of all creation, even Christ in the garden of Gethsemane. In His humanity He did not know the outcome; yet logically an eternal being is precognizant as well as omniscient. But however that may be, He wept at least once, and He despaired.

        The first sentence in my new book ‘This Bloodless Liberty’ is, “The tombstone of a civilization may be laid at precisely that place where truth is no longer defended, because it cannot be known.” The book’s thesis is optimistic; that a small minority of Americans, using tactical wisdom beyond the ken of the majority — a gift of God, not our own intellectual stuff — can overcome today’s regnant stupidity and wickedness, and even see restoration beyond anything we’ve known heretofore.

        The book, available at Amazon and B&N, lays out a three-prong tactical plan of ACTION that AmericaAgain! Trust, and its members in 35 states, are already beginning to pursue: the first nationwide neural network for informed self-government, giving teeth to the Tenth Amendment at last, and from now on.

        Christ’s message is on the march worldwide, as never before in history. I posit in ‘This Bloodless Liberty’ that the loud and bloody feast of America’s predators and parasites may have reached an uncomfortable din…but that din represents the END of their 150-year feast, not its beginning.

        ‘Publius Huldah’, whoever you really are…you’re a delightful voice on the Internet, assuring me of my thesis, that the end of the American civilization is not yet at hand, for truth can indeed yet be known. And defended.

        Well done, woman.

        DM Zuniga

        Like

        Comment by David | September 19, 2010 | Reply


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