Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage
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 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 Sec. 1 of the 14th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866 which protected the freed slaves from southern Black Codes which denied them their God given rights.
a) In Ch. 11 of his book [go to page 245 of this pdf ed], Prof. Berger shows the true meaning of the “due process” clause of the 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 [go to page 222 of this pdf ed], 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?
Endnotes:
1 The California Lawyer seems to have removed its January 2011 article with the interview with Justice Scalia. Isn’t that odd? But you can read excerpts from it at the Wall Street Journal: http://blogs.wsj.com/law/2011/01/04/scalia-on-controverisal-stuff-i-dont-even-have-to-read-the-briefs/
State legislatures may make laws re abortion, homosexuality, marriage, etc. as permitted by their State Constitutions. But as these are not among the enumerated legislative powers of Congress, Congress is not permitted to make laws on these subjects. Neither are federal judges.
2 Hamilton says this is the only instance where the Constitution contemplates the federal courts hearing cases between Citizens of the same State. (Federalist No. 80, 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; Sep. 11, 2015
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PUBLIUS HULDAH
Publius-Huldah's Blog 
[…] Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay MarriageJanuary 10, 2011In “14th Amendment” […]
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The ruling on same-sex marriage being legal is actually Constitutional, due to the equal protection clause of the 14th Amendment to the U.S. Constitution. Religious conservatives only want a Constitutional Amendment to define marriage as the union of a man and a woman so as to enable the legal discrimination against a minority of the population. The Dictionary has already defined marriage, so no person has the right to claim that government is trying to redefine it.
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And the original intent of section 1 of the 14th Amendment is….. what? Go on lay it out and set forth your proof.
Really, you are spouting off about matters you don’t understand.
Some people want an amendment to the US Constitution defining marriage as one man – one women; but I know better than to delegate to the federal courts constitutional jurisdiction over marriage. I expect you’ve never read Art. III, Sec. 2, clause 1 [and if you did, you have no idea what it means]; but one of the 10 categories of cases federal courts have jurisdiction to hear is “cases arising under this Constitution”. Any amendment defining “marriage” would bring the issue under the constitutional jurisdiction of the federal courts.
Again, I know it’ll be over your head, but other readers might be interested in this: https://publiushuldah.wordpress.com/category/equal-protection-clause/
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Conservatives and liberals cherry-pick which parts of the U.S. Constitution they want to abide by.
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I expect what you say is true.
I am neither a “conservative” [the word, after all, has no meaning] nor a “liberal”.
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The 3 biggest mistakes in the U.S. from a Constitutional standpoint were the 16th and 17th Amendments as well as prohibition, which was corrected.
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I’d say the biggest mistake is Americans’ failure to become constitutionally literate.
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As a layman, I must profess to ignorance of much in the Constitution as well as of much that is written about it. Still, I try to understand as it is my solemn duty to do so. In that light, I wish to express an opinion which I believe to accurately reflect what is happening in our country today.
Looking at the actions of politicians and activist judges, it seems clear that they all work very hard to twist, warp, and otherwise obfuscate the original intent on the Founders at every opportunity. I have to conclude that, being self-proclaimed educated people, they MUST know what they are doing and so I must therefore conclude their intent is to ignore, deny, or otherwise circumvent the original intent of the Founders, for what else could explain their blatant efforts, using the most illogical and unsupported arguments to reach new conclusions of their own making.
In general, I have found that once a person makes up their mind as to any subject, it is extremely difficult to get them to change their mind, especially when ideology is involved as it is with politicians and activist judges. (Note I use the term “politician” to refer to any person elected by the people or appointed by those same politicians. My intent is to distinguish the term politician from statesman, for our Founders were true statesman who, although they came from different backgrounds representing different people, all seemed to have the best interest of the People in their minds. Contrast that to politicians who clearly have only their own personal interests at heart or the interests of those who bought them, for they have indeed been bought as is evident by looking at just one example of sanctioned bribery, that being when Boehner and Ryan took $6 and $2.5MM respectively in exchange for their favorable vote for the TPP.)
So knowing that politicians and activist judges have no deep concern about the intent of our Founders nor with the desires of the People (who they consider in their arrogance to be stupid and incapable of self governance), I must ask how is it that they are able to so effectively lie to us as to their intent and get away with those lies, doing so repeatedly? It seems that one possible explanation is that We the People have allowed them to do so, but that is an oversimplification. As a baby boomer (I hate being put in categories that politicians and demographers “decide” fits us) I have watched our country decline from being grounded in God, for the most part, to being grounded wholly in self gratification no matter the cost or consequence. Abortion is just one of many examples where self gratification, the desire for sex, takes precedence over the truth that at conception, a new human life is formed. And don’t bother trying to argue that, for as a biologist, I can tell you with absolute certainty that the embryo can ONLY grow to become a human. There are NO other possibilities open to that life so any fictitious argument trying to claim it is not “human” until birth or some other artificial point in the developmental process is pure BS.
The process of degeneration has not happened overnight but has been slowly creeping into our society over the last 100 years and more. It seems logical that given this process is so long, slow, and incremental, People have simply not been able to identify that it was even happening, for how many of us thought that much of the changes promulgated during the ’60’s were in fact part of the planned destruction of our society. Yet all we have to do is read the books of the communists and others seeking the destruction of America to realize that the place in which we find ourselves today as a country is in fact the direct result of planning, manipulation, and concerted long term effort by a determined group of ideologues with their own personal agenda, that agenda being the complete and total destruction of the American way of life.
So recognizing this pernicious attack, what do we do? How do we fight back against a well organized, extremely well funded enemy who is intent on destroying us and has been diligently working towards that goal for over 100 years? I don’t have good answers though I can say with certainty that we must fight them with every resource we can bring to bear, for the future of our country is literally at stake. Let it be known that this is not a war we can afford to ignore or say that someone else will deal with it. No. Every American who cares about our country must make a commitment to defeating our enemies for failing to do so will guarantee the victory of our enemies over us, after which we will all become slaves, at least those who survive the war.
And do not make the mistake of underestimating our enemies. A famous military strategist and philosopher, Sun Tzu, wrote a now famous book called The Art of War in which he says If you know neither the enemy nor yourself, you will succumb in every battle.
To a large degree, Americans no longer know ourselves. That is a direct result of the plan of our enemy for they have worked for decades to decrease the level of education in our schools, replacing it with feel good philosophies that teach nothing but self indulgence. In addition, our enemies have done a masterful job of disguising themselves so they were not easily identified as enemies. The Communist Manifesto makes as one of its primary goals the control of our educational system which we all know has declined dramatically despite the extremely high cost of education, and they have largely succeeded in reaching this goal.
I apologize for being so verbose but I have come to believe that we must move from simply recognizing the condition of our country along with recognizing the evil intent of our enemies, to waging a long term counteroffensive to retake our country. It will not be easy nor is victory assured, but I feel confident that all good Americans want to see our country restored to a position of respect, not as the world’s police and certainly NOT as the world’s sugar daddy, but as a country founded on belief in God with a commitment to the Constitution. John Adams said it best when he said “Our Constitution was made only for a moral and religious people”. It is wholly inadequate to the government of any other.”
I pray we can unite in this cause as our Founders did, pledging even their lives, fortunes, and sacred honor to the task of Liberty at any cost. I also pray we are up to the task for our enemies will never voluntarily cease their efforts to destroy us, so unless we teach our descendants the truth, they will one day be enslaved by the enemy we now face.
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I think all that you say is true. I would just modify the part about lawyers. Lawyers got indoctrinated in law school – many don’t understand what they are doing. They are just going along with what they were told.
I’m not saying they are without fault. They are guilty: of laziness, cowardice, and refusal to think independently. E.g., we were told in law school that the Constitution means what the supreme Court says it means; that the interstate commerce & general welfare clauses give Congress power to regulate this, that, and everything else. But any lawyer who looks at the list enumerated at Art. I, Sec. 8, clauses 3-16 should see that a GREAT BIG RED FLAG IS RAISED AS TO WHETHER WHAT HE WAS TOLD IN LAW SCHOOL IS TRUE. Any lawyer who THINKS, and sees that the Supreme Court was CREATED by Art. III – should ask the obvious question: “How can the CREATURE be the final judge of the extent of its own powers????????”
I asked myself these obvious questions and that’s when I began to realize I was lied to in law school. But when you challenge the prevailing dogma, you get attacked, smeared, mocked, ridiculed, marginalized, etc. Most lawyers don’t have the guts to stand up to such attacks. American Lawyers of today are the epitome of “group-think”. It is disgraceful – we are supposed to be fighters.
The Biblical basis for our Constitution has been under attack for a long time. The earliest poison which I have identified so far seems to have come from the Unitarians of the late 1700s- early 1800s. They rejected the Biblical teaching that man is fallen; and said that man is basically good – evil comes from the environment…..
Well, what are the practical ramifications of that? Obviously, if evil comes from the environment, then the solution is to fix the environment. THEN, we will get utopia…..
Well, who has the power to fix the environment?
duhhhh – the government!
So, whereas in 1776, We said the purpose of government is to secure the rights God gave us (see 2nd para of the Declaration of Independence); by the late 1700s, Unitarians were already spreading the poison that the purpose of gov’t is to fix the environment….
And this is the philosophical basis of the socialist regulatory welfare state we now have.
How does this happen? It seems to be because only a few people have the ability to detach from their “environment” and observe it and see what is going on. And when we speak about it, people won’t listen.
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To all who have been distressed by what is coming forth from SCOTUS these days…Here is our recourse in the matter of the SCOTUS’ OPINIONS on SAME SEX MARRIAGE…This is 16 minutes of the best info I have heard in a long time…I was not aware of this…
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I watched it. Some of what he says is true, some is not true. It is True that the Judges are not the final arbiters of the Constitution. It is True that we ought to be guided by original intent.
But other things he said are not true:
1. All of the original Constitution is easily understandable by lay persons of ordinary understanding, except for Article III, which requires knowledge of litigation to understand – the speaker has no understanding of litigation.
The terms, “law” and “equity”, do not mean what he says. Anglo/American Jurisprudence traditionally divides “civil” cases [as opposed to “criminal” prosecutions] into two categories: cases “at law” or cases “in equity”. This short, simple, and clear paper written by a Florida lawyer explains the differences between cases in “law” and cases in “equity”: http://patch.com/florida/templeterrace/court-of-law-vs-court-of-equity-why-it-matters-to-you-9
2. The “exceptions” cause at Art. III, Sec. 2, cl. 2 does not mean what he says it means.
I wrote on this several years ago; but on re-reading it, think a new paper would be helpful. Still, study this paper and it will give you the answer.
https://publiushuldah.wordpress.com/category/exceptions-clause/
In a nutshell, Article III, Sec. 2, clause 1, lists the categories of cases the federal courts may hear.
Clause 2 divides the jurisdiction of the Supreme Court into “original” (trial) and appellate jurisdiction. So don’t forget, clause 2 deals ONLY with the Supreme Court’s jurisdiction. IT DOES NOT ADDRESS THE JURISDICTION OF THE LOWER FEDERAL COURTS.
So think about the claim that we can fix our problems by having Congress reduce the jurisdiction of the supreme Court: Even if Congress could do that by making a law, how would that solve the problem? We would still have the lower federal courts coming out with CRAZY decisions.
Furthermore, I have no doubt but that in the last 4 paras of Federalist Paper No. 81, Hamilton is talking about the power of Congress to prescribe rules of appellate procedure for the supreme Court. Any appellate litigation atty will tell you that her/his “bible” is the Rules of Appellate Procedure for the courts s/he practices in.
3. He does not mention the remedies our Framers actually advised us to use when the federal courts usurp power:
Impeachment of offending judges (Federalist Paper No. 81, 8th para); and
Nullification of unconstitutional supreme court opinions.
So the lesson to be learned is to remember that much of what we hear is NOT TRUE.
I took off my lawyer’s hat and looked at Art. III the way a layman would look at it and realized that it is impossible for a layman to understand what it means. But thankfully, Art. III is the only Article which is like that.
Even so, God gave us all a brain and He expects us to use it. One doesn’t need to be a lawyer to understand that the claim that we can fix our problems by using the “exceptions” clause to reduce the supreme court’s jurisdiction is ridiculous: In the federal court system we have 3 levels of courts: The trial courts (the federal district courts), the intermediate appellate courts (circuit courts), and the supreme Court. To use the “exceptions” clause to reduce the power of the supreme Court does nothing about the CRAZY decisions coming out of the Circuit Courts. People who chant this “remedy” are repeating what they have heard w/o first thinking it through for themselves.
Let me know if you have questions – this is important.
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Thank you Publius…
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James Wilson, who was a Founder/Framer and a Supreme Court Justice among other things, wrote:
“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.” ~James Wilson, Of the Natural Rights of Individuals, 1790
http://teachingamericanhistory.org/library/document/of-the-natural-rights-of-individuals/
Shame we rejected natural law for man’s immoral and inconsistent law.
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[…] Looking at the framers of the Constitution, we can learn a great deal. They were men of great faith, and in no way ever dreamed a woman would want to slaughter her own child in the womb. Such an action goes against everything for which they stood when they laid their lives on the line….for us. The Supreme Court overstepped its Constitutional bounds when declaring in favor of Roe V Wade. I would suggest people read the paper by Publius Huldah on the Judicial Abuse of the 14th Amendment! […]
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Pingback by Why Do They Hate Children? , An Ol' Broad's Ramblings | January 23, 2014 |
[…] are explained in detail here: Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation, & Gay Marriage. In a nutshell, the linked paper shows that federal courts may lawfully hear only cases falling […]
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Pingback by Publius Huldah: Parental Rights - God-given and Unalienable? Or Government-granted and Revocable? | USA NEWS FIRST | July 30, 2013 |
[…] are explained in detail here: Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation, & Gay Marriage. In a nutshell, the linked paper shows that federal courts may lawfully hear only cases falling […]
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[…] are explained in detail here: Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation, & Gay Marriage. In a nutshell, the linked paper shows that federal courts may lawfully hear only cases falling […]
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Pingback by Parental Rights: God-given and Unalienable? Or Government-granted and Revocable? | American Clarion | July 23, 2013 |
[…] are explained in detail here: Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation, & Gay Marriage. In a nutshell, the linked paper shows that federal courts may lawfully hearonly cases falling […]
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Pingback by Parental Rights: God-given and Unalienable? Or Government-granted and Revocable? | Grumpy Opinions | July 21, 2013 |
[…] supreme Court looked at the word, “liberty” in Sec. 1 of the 14th Amendment and said it means “privacy”; and “privacy” means “women may kill their unborn babies”! […]
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[…] supreme Court looked at the word, “liberty” in Sec. 1 of the 14th Amendment and said it means “privacy”; and “privacy” means “women may kill their unborn babies”! […]
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Pingback by Parental Rights Amendment: Congressmen Are Selling You and Your Kids Out to Big Government | Give Me Liberty | July 12, 2013 |
[…] The supreme Court looked at the word, “liberty” in Sec. 1 of the 14th Amendment and said it means “privacy”; and “privacy” means “women may kill their unborn […]
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If I may interject something here, I can’t help but notice the exclusion of any mention of the Anti-Federalist Papers. I think the concerns of the authors, some of which have been substantiated in the years preceding the Constitutional Convention, should give pause to those who forget, discount or otherwise ignore these writings.
Let us not forget, it was the anti-federalist that pushed for a bill of rights that many today so often cite. Though some federalist agreed with the idea, in large part it happened in spite of them. And, it can still be debated today, whether the federalist were right: that the rights were implicit in the body of the Constitution and a bill of rights was not necessary; or, the anti-federalist were right: that these rights needed to be explicitly enumerated. I think in this case history has proven that the anti-federalist could better see the future. Perhaps, the writings of these many men could provide better insight into the intent of the authors of the Federalist Papers. Dare I be bold enough to say that at least two of these mens’ motives could be described as suspect. Kevin R.C. Gutzman, author of The Politically Incorrect Guide to the Constituion, says Alexander Hamilton, “made a famous speech in which he avowed his admiration for the British constitution….” Of James Madison’s inconsistencies, he said, “Madison was unpredictable an oracle as the Pythia at ancient Delphi.” I don’t believe it was mere philosophical differences that separated these camps. When Henry learned of the call for a convention to reform the Articles of Confederation he reportedly replied, “I smell a rat.” A convention that was called to reform instead created a new form of government. Until recently, I thought these men were genuine in their motivations and desires. But, I wonder now if there wasn’t some aspect of self-interest/self-promotion in lobbying for their particular form of the Constitution.
On a personal related note, many years ago, as I read these two books, though obviously it was after the fact, I could see the War for Secession brewing.
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1. Re the anti-federalists. Today, many Americans believe that “federalism” is a bad thing. After all, the “federal” government today is really, really bad; so “federalism” must be bad also. So their “thinking” goes.
But they don’t understand “federalism”. “Federalism” is simply this: With our federal Constitution, We The People created a “federation” of Sovereign Independent States united ONLY for the purposes enumerated in the Constitution: military defense, international commerce & relations; and domestically, the creation of a uniform commercial system: a currency based on gold & silver, bankruptcy laws, uniform weights & measures, patents & copyrights, mail delivery and some road building. In all other matters, the States remained Sovereign & Independent. THAT IS WHAT OUR FEDERAL CONSTITUTION SET UP. THAT is “federalism”.
If People would just lay aside all the lies and misinformation which they have heard all their lives and just read our federal Constitution with fresh eyes and an open mind, they would see that this is what Our Constitution does.
The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay to explain the proposed Constitution and to urge its ratification.
The Anti-Federalists opposed the proposed Constitution – they wanted to remain under the Articles of Confederation. We err when we see them as champions of liberty – the greatest “liberty” document ever written in the history of man is Our Constitution. It really is a 5,000 year miracle.
2. The bill of rights has been a disaster. Hamilton warned against a bill of rights in Federalist No. 84 (around the 8-10 paras). I will paraphrase the argument he makes there:
King John of England (the Robin Hood contemporary) claimed total power over his “subjects”. With a king such as that, a bill of rights is appropriate as the bill carves out exceptions to the total power of the king. That’s what the Magna Charta did – it carved out certain exceptions to the absolute power of the king.
But when a Constitution is ordained and established by The People, and is based on the Rights of the People, then bills of rights are not only unnecessary – they are dangerous. They are dangerous because they contain exceptions to powers not granted – for why declare that things shall not be done which there is no delegated power to do? Why say that the liberty of the press shall not be restrained, when the federal government is given no power by which to restrain speech? It is evident that it would furnish, to men disposed to usurp, a pretext for claiming that power.
Please ponder that. It is so important. Hamilton was a genius and a prophet. He saw what would happen if we got a bill of rights.
For the US supreme Court has used it as the vehicle to seize power over all of the States. Read the 1st Amendment – it merely lists some of the things CONGRESS can’t make laws about. Yet, the supreme Court has used it to ban Christian speech in the public square throughout the entire country; to approve Congressional restrictions of political speech, to overturn decisions of State courts in speech cases, and to set itself up as arbiter of all speech in the Country – the supreme Court claims and exercises the power to decide which speech is permissible and which speech is not.
THAT is what Hamilton warned about and why he opposed a bill of rights.
3. Kevin Gutzman is a wolf in sheep’s clothing. He supports a con-con (“Art. V convention”). A con con is sure to result in the total abolition of our Constitution. Please see my next to last post on the “Daily Commentary ” page, titled “WARNING AGAINST A CON-CON (a/k/a “Art. V Convention”)”.
4. There really is an evil cabal composed of Gutzman, Rob Natelson, The Goldwater Institute, and various others who have long been trashing our Framers – especially two of the most important (Hamilton & Madison because they are the primary authors of The Federalist Papers) – and urging a con con (Article V convention). Unfortunately, the poisonous seeds they plant find a fertile ground in those who desire to seem knowing (the cabal provides them with talking points), and who harbor a wicked desire to sneer at genius (Hamilton & Madison).
This is difficult to combat b/c our People have been so dumbed down that most of them are unable to read The Federalist Papers with any understanding; or they are so used to being spoon-fed that they are unwilling to make the effort. And they are angry and want a scapegoat. So they are manipulated by the cabal into blaming the Constitution!
BEWARE of letting your beliefs be shaped and manipulated by reading what others say Hamilton & Madison said and did and what their motives are. You are being lied to by them. The only way you can know what Hamilton & Madison said and believed is to read their own writings.
Do read my short daily commentary warning against a con con. Who calls it? Who appoints the delegates? Hummmmmmmmm?????????
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[…] to protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in homosexual sodomy, and […]
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[…] protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in […]
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Pingback by GOD-GIVEN RIGHTS, MAN-MADE ANTI-RIGHTS | Grumpy Opinions | August 28, 2012 |
[…] protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in homosexual sodomy, and […]
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Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral « Veteran Patriot | August 28, 2012 |
[…] to protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in homosexual sodomy, and […]
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[…] to protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in homosexual sodomy, and […]
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Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral | Christian Patriots USA | August 27, 2012 |
[…] to protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in homosexual sodomy, and […]
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Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral | Illinois Conservative Beacon | August 27, 2012 |
[…] to protect freed slaves from Southern Black Codes which denied them basic God-given Rights. But the 14th Amendment has been perverted by judges on the supreme Court to create a “right” to kill unborn babies, a “right” to engage in homosexual sodomy, and […]
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Pingback by God-Given Rights, Man-Made Anti-Rights, and Why 'Safety Nets' are Immoral | August 27, 2012 |
I must say this was an enjoyable read. Were I on a Jury, I would support the PH view 100%. I didn’t see any detailed presentation of both side ‘S’ claimed you should do and from my limited knowledge, his familiarity with the detailed reasoning in any of the cases was missing in action.
Two concepts were not dealt with:
a. The Rule of Law
b. Stare Decisis – which has a horrible history when it comes to
‘incorporation’ by the 14th Amendment.
Anyway, excellent work, PH!
Ed
PS: I’m late to so many things in life I see no reason not to comment on your excellent but older writings.
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Well, thank you, Ed. However,
(1) PH has no “view”. [But if she did, her view would be irrelevant.] PH sets forth the original intent only.
(2) This paper was about how federal judges have butchered the 14th Amendment. This paper was not about the Rule of Law. I have another paper on the Rule of Law. See the Categories.
(3) This paper is also not about stare decisis. That is a judicial doctrine. I do not normally cover judicial doctrines on the website. If I did, I’d never get to the Constitution. There are many judicial doctrines. I focus on the original intent of the Constitution.
I try to keep my papers to ONE issue. Otherwise, they get too complicated. I write for for intelligent laymen as well as other lawyers.
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[…] "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." – Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage Publius-… […]
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Pingback by The Dumbest Argument Against Gay Marriage... - Page 38 - Political Wrinkles | November 11, 2011 |
Judge Walker defied binding precedent in the Perry ruling. See Baker V. Nelson , 409 U.S. 810, 93 S Ct 37, 34 L.E.2d 65 (1972)
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Thank you, Michael!
Since there was no U.S. supreme Court opinion in Baker v. Nelson other than the Court’s ruling to the effect that same sex marriage presents no “substantial federal question”, I skimmed the wiki article here:. en.wikipedia.org/wiki/Baker_v._Nelson to refresh myself on this case.
Yes, you have an excellent point! But after Anthony Kennedy’s majority opinion in 2003 in Lawrence v. Texas that homosexual contact is a “right” under Sec. 1 of the 14th Amendment; I expect that the 4 loons + Kennedy will now find that same sex marriage is a “right” under the 14th Amendment. I read Judge Vaughn Walker’s opinion in Perry carefully as I was writing this paper, and I think he wrote his opinion to appeal to Anthony Kennedy because of all those glowing references to Lawrence v. Texas.
I never thought Ronald Regan was as good a president as conservative Republicans think. Isn’t he the one who appointed Kennedy?
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So far, the Supreme Court has refused to revisit Lawrence , denying cert to the rulings in Lofton v. Secretary of the Department of Children and Family Services , 358 F.3d 804 (11th Cir. 2004) (upholding Florida’s ban of adoption by homosexuals) and Cook v. Gates , 528 F.3d 42 (1st Cir. 2008), (upholding the Don’t Ask, Don’t Tell law) denied sub nom Pietrangelo v. Gates , 129 S.Ct. 2763 (mem.) (2009), even though both opinions addressed Lawrence .
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Dear Michael, Here is the 9th Circuit’s docket : ca9.uscourts.gov/content/view.php?pk_id=0000000472
I fear they’ll affirm the trial court.
When it gets to the supreme Court: I expect that kagan, sotomayor, ginsberg, & Breyer will vote for same sex marriage. Kennedy wrote the majority opinion in Lawrence v. Texas, so I fear he may be manipulated by the flattery of the trial court judge into voting with the loons.
It all depends on the composition of the Court. Remember: they don’t see the Constitution as in any way “fixed” – rather they say it “evolves” so as to embrace any *amn thing they want.
Are you thinking of law school?
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Would not the Supreme Court focus on the Ninth Circuit opinion in determining review of this case?
It should be noted that the Supreme Court had overruled Walker before, and in quite harsh terms. In a ruling whihc Kennedy joined, the Court wrote
The whole district court case was marked with a series of irregular rulings.
Even assuming arguendo that there are five judges willing to find a “right” to “marry” someone of the same sex (a right rejected by liberal jurists like White, Brennan, and Marshall) , would they go so far as to affirm such a right solely from this case, with its highly irregular procedural rulings, all of which were biased towards the plaintiffs? There are after all, other cases on this question (including a case from Texas where the trial judge had struck down the state’s marriage amendment), where there were no such irregularities nor extraordinary judicial malfeasance.
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Michael, it was a bitter thing when I finally realized that judges do not go by the law. They deny that there exists any objective standard external to their own precious selves to which they must conform their rulings. They are lawless. They will rule on the same sex marriage issue the way they want, and write an opinion to justify the result.
Yes! All those opinions are written to justify whatever ruling they want to issue. They don’t care about the things you mentioned. They bring stuff like that up only to justify ruling this way or ruling that way.
The federal courts are altogether corrupt.
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PH, I believe the 14th amendment makes “hate crime” laws unconstitutional. We cannot be equal under the laws if the punishment for the same crime is stiffer because of who the victim is. “Hate Crime” laws give more justice to a certain class of people, making those not in that class unequal. “Equal protection of the laws” is impossible with “hate crime” laws. If “hate crime” laws are permissible, then in 1868 the southern states that were denying freed slave their rights could have made a two tier system, one law for whites and one for freed slaves. Am I wrong?
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Ha ha! Your comment is clever & astute. There is Truth in what you say! A white person who assaults a black person is treated more severely than a black person who assaults another black person – b/c the white person is suspected of “hate”. Same for a straight person who assaults a gay person as opposed to a gay person who assaults another gay.
Of course, WE go by the original intent of the equal protection clause: To guarantee to blacks equal protection of the rights enumerated in The Civil Rights Act of 1866 – such that blacks would have 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. Respecting the rights listed in the Civil Rights Act of 1866, States were now required to treat blacks the same as whites. THAT is what the “equal protection” clause in the 14th Amendment means.
Also, Congress’ powers to make criminal laws are strictly limited to what the Constitution authorizes. See paper under Category; “Criminal Code US”. Congress has no constitutional authority to make laws on “hate crimes”!
Thank you for a most enjoyable comment!
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New Ideas of Liberty
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
AND that no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate.
The 17th Amendment deprived some States of their sufferage in the Senate.
We would do well to repeal the 17th Amendment! According to the 10th Amendment , the States are distinct from the People.
This Article is talking about the State Governments, NOT the people of a State.
Florida, Georgia, Alabama, South Carolina and Virginia did not ratify that amendment and were deprived of their equal suffrage in the Senate, thereby profoundly effecting the integrity of every Amendment to the Constitution!
Also, the unseating of the Senators of Southern States for their refusal to ratify Amendment 14 constituted “exactly” that prohibition,
“AND that no State, without its Consent, shall be deprived of its equal Suffragein the Senate.”
The argument that the Senate shall be the sole judge of the qualifications of its members, used to justify their expulsion, flies directly in the face of Article V. The North nitpicked a small section of the powers of each House to justify the complete overthrow of the Constitution of the United States. They did not realize that it invalidated every Amendment to the Constitution, or they did not care. People always say, Congress intended… Congress intended to enslave every Southerner born for the eternity available to the Federal Government, even though they are duty bound to cease and desist with the Civil War Amendments once the offending generation dies of. “No Corruption of Blood” which I would interpret as the powers of self government being part of the property, the beqeathment of the Southerners to their children. Our liberty and rights are our property as well as our slaves and our investments in Confederate War Bonds. The Congress certainly intended nothing good for any Southerner ever born again. The same can be said when attempting to balance the assertion that attainders of treason are legal with other lines in the Constitution that declare that no attainders of any sort are legal. Please notice that whan the Constitution proclaims with great bombast that it is Supreme over State Laws and Constitutions, it has no jurisdiction over State laws and Constitutions.
I also would like to show you a few other things in the Constitution that I am sure
you will find to be very interesting.
Article 1. Section 9.3} No bill of attainder or ex post facto law shall
be passed.
The 14th Amendment fails these basic tests of Constitutionality. That amendment is a bill of attainder
and it was passed ex post facto. Article 1. Section 9.3 is probably the reason that the Antebellum South so confidently seceded. Seceded or not, the North was and still is bound by that limitation of power. The North had no power over slavery in 1861, and it still had no legal power over slavery in 1865. The history of the 14th amendment has been well documented, and it truly is a testimony to the failure of Constitutional government.
Article 3. Section 3.2} The Congress shall have power to declare the
punishment of treason, but no attainder of treason shall work
corruption of blood, or forfeiture except during the life of the person
attained.
Article 1.Section 9.3} declared
that Congress may not pass Bills of Attainder or ex post facto laws. Now
we see an exception or a mistake. The Constitution contradicts itself here.
Attainders of treason are permitted with some very serious restrictions
on them to protect the descendants of the traitors. That is us, by the
> way. The primary problem is the 14th Amendment.
The value of the slaves and Southern war bonds concern us here. That value is the forfeiture that is Constitutionally bound to be returned to the Southern people , as we shall not suffer Corruption of Blood or lose our property EXCEPT
during the lifetimes of the Confederate Politicians and Soldiers. They
are now all dead. Also, the theory known as the Incorporation Doctrine
is defunct. The application od the 14th Amendment to the States and the people is illegal. The traitors are dead!
The application of the Incorporation Doctrine is Corruption
of Blood and is Unconstitutional. We, the Southerners living now, are
not and have never been Traitors to the United States. We are thereby
under the jurisdiction of the original Constitution . Corruption
of Blood is being allowed to function as the Supreme Law of the Land
rather than the Constitution of the United States. This cannot continue.
wikipedia.org/wiki/Ex_post_facto
wikipedia.org/wiki/Bills_of_attainder
wikipedia.org/wiki/Corruption_of_blood#Corruption_of_Blood
pacinlaw.org/pdf/14th_R2.pdf
civil-liberties.com/cases/14con.html
I propose that any one of the Southern States expelled from Congress to force their ratification of the 14th Amendment, simply repeal their states ratification of the 14th Amendment. That alone would tie EVERYTHING up in the Federal courts for the next 20 years. Liberty would blossom again.
Further, in black and white, Amendments are NOT Unconditional. They are a delegated power to the Federal Government, and are vested as a privilege. Notice the Articles of Confederation had no such delegation. It has been abused time and again by the Federal Government, going so far as to destroy the entire social system of the creators of the Federal Constitution. Necessary and “Proper” indeed!!!
I would like to propose what we shall call, The Doctrine of the Perpetual Negative. When the Constitution says that no power shall be exercised by the general government , that negative cannot be repealed or overridden in any way Legislative, Executive or Judicial under this Constitution except through the next Constitutional Convention.The reason is that when the Constitution says, for example, that there may be NO direct taxes, the the proposal to override it, to repeal it, violates the prohibition. The proposal, though it later be an Amendment, is itself at all times Unconstitutional, thus illegal, and null and void! Negatives may not be repealed. I submit that the 10th Amendment supports this view as well and would want to see it debated
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Dear, You are beating a dead horse. Our Problems today are not caused by the 14th Amendment; and repealing the 14th Amendment will not help us one twit. Do not pour out your life with musings on arcane matters which will not bear fruit. The fact is that there is much in the 14th Amendment which was good and greatly needed: Freed slaves had NO CIVIL RIGHTS! Was it’s “ratification” questionable? Yes. So what? That was long ago, and is not the cause of our present decline into tyranny. Even if the 14th Amendment had been properly ratified, we would still be in our present state of collapse.
You must move on to deal with our present problems: The best thing you can do for your Country is for YOU to learn the original intent of Our Constitution. Much of what you think you know, just ain’t so – so you too must start from scratch. My instructions to the Dept. of Homeland Security are meant to be humorous, that that IS the place to start: with pocket copies of the Declaration of Independence and Our Constitution and some colored pencils. Once you understand what these two magnificent documents actually say, my various papers – citing The Federalist Papers – make it all very plain. THEN, you help spread the TRUTH. THAT is how you help restore our Constitutional Republic.
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“Bill Clinton: Obama Should Ignore Congress on Debt, Invoke 14th Amendment”
theblaze.com/stories/debt-limit-showdown-bill-clinton-advocates-obama-ignore-congress-invoke-the-14th-amendment/
The truth still isn’t in Bill Clinton!
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My point, if it wasn’t clear below, is that the author is using controversial rights like “abortion, sexual orientation, and gay marriage” to bolster her argument against judicial interpretation and selective incorporation without disclosing the important rights we’ve secured through that very same mechanism (right to marriage, right to procreate, right to privacy, right to worship, right to acquire useful knowledge, right to establish a home and bring up children, right to worship God according to the dictates of its own conscience, freedom of bodily restraint, etc…) All of those rights were secured through judicial interpretation of the 14th amendment, what the author is arguing AGAINST.
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Steven! Are you saying that the supreme Court is the entity which – thanks to the 14th amendment – graciously “granted” us the rights “to marriage, right to procreate, right to privacy, right to worship, right to acquire useful knowledge, right to establish a home and bring up children, right to worship God according to the dictates of its own conscience, freedom of bodily restraint, etc…” ?
So mankind didn’t have any of these rights before the 14th amendment was ratified? Tell me also, if you can: What about countries which don’t have our 14th amendment – do they not have these rights?
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No, they didn’t. Before the courts “graciously granted” us the rights I mentioned, State’s could infringe on those rights at will. You say they’re divine natural law. But the inspiration of those laws is irrelevant in this context. The fact is, States could infringe on your “God given rights” however they pleased. And if the States did infringe on those right, how exactly was God going to help in restoring those rights?
Other countries that “don’t have our 14th Amendment” may very well have natural laws similar to ours. That’s why they are called natural laws, they transpire time, culture, and religion and are rooted in a fundamental sense of fairness. The 14th Amendment is just the mechanism this specific government, the government of the United States, chose to acknowledge what it feels are fundamental rights. What other countries do is up to them.
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Steven, you seem to have obtained your views on 14th Amendment jurisprudence from reading secondary sources written by non-lawyers who don’t understand what they are talking about.
In order to understand 14th Amendment jurisprudence, you must read actual supreme Court opinions. In my paper, I provide links to two of the major supreme Court cases on this issue. You should also read the opinion from the case out of California.
When one reads only secondary sources, all one gets is a predigested view [which is more often wrong than right], and which, alas, one all too often adopts as one’s own. One then regurgitates what one has read and postures as an expert on the subject. In this way, misinformation is spread.
So! read the three cases – I provide the links – and then, we can chat on 14th Amendment jurisprudence.
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There is no “right” to gay marriage. Everyone already has the exact same right to get married… ANY man can marry any woman he chooses and any woman can marry any man she chooses, with the usual exceptions for age, relationship, etc… There is no discrimination or loss of rights; the FACT is homosexuals aren’t seeking equality, homosexuals want a special right.
The states do however have a right to ban gay marriage.
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You speak the pure truth, Spense!
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I want to tell everyone about selective incorporation. It is crucial to understand what that is.
Fact: The Bill of Rights originally only applied to the federal government. What does that mean? Take the first amendment as a simple example. If the Bill of Rights only applied to the federal government, Freedom of Speech would not apply to the states and they would be free to silence its’ residents however it likes. Or Freedom of Religion, States could establish a state sponsored religion and discriminate against you based on your religion.
Why do the amendments like Freedom of Speech and Freedom of Religion protect everyone from every state? The 14th Amendment. The 14th amendment, in relevant part, holds: “no State shall deprive any person of life, liberty, or property, without due process of law.” No state shall deprive “liberty.” What does that mean? “Activist judges” have interpreted the word “liberty” to include most of the rights from the Bill of Rights. What does that mean for you? It means that no STATE (as opposed to just the federal government) shall deprive their residents from any rights listed in the Bill of Rights. That includes the rights we take for granted like Freedom of Speech.
That is the process of selective incorporation. Judges have selectively incorporated “fundamental rights” under the definition of “liberty” and by doing so, prevents the States from infringing on those rights. This is a history lesson so far, no opinions, just facts.
The author contends that “activist federal judges have committed grievous offenses against the U.S. Constitution” by selectively incorporating rights under the 14th Amendment. Do you see the irony in this? The author is arguing AGAINST the very process that gave her the right to type this blog, Freedom of Speech. I would contend, and i’m certain most would agree, the United States would be a much different place if States were allowed to censor the voices of the people.
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Steven, you seem to be writing about my papers in another forum to a specific audience.
That’s fine; but I wonder: Are you presenting them with “the other side” – i.e., with my comments and the links to my other cited papers so that “they can make up their own minds”?
Re Our Rights: Honor compels you to provide your audience with the links to my 3 papers on Rights”
You seem to believe that our “rights” come from the Constitution [a document written by men] and are properly interpreted or increased by judges on the supreme court. Is that really your position?
In my Papers, I show that our Declaration of Independence says that our Rights come from God and are unalienable. That means they pre-date & pre-exist the Constitution and that they are NOT subject to the interpretations of human judges. IS THERE SOMETHING ABOUT THIS FOUNDING PRINCIPLE WHICH YOU FIND OFFENSIVE?
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See my comments above. The Declaration of Independence, while a momentous document that defined this country, has little, if any, binding legal effect. The Constitution on the other hand, has the most binding legal effect. Therefore, there must be an acknowledgement of these “unalienable rights” in the Constitution in order for them to have any legal binding effect. Certain personal/natural law rights were acknowledge in the first eight amendments to the constitution.
But at the time of amendment, those rights only protected infringement by the Federal Government, not the States. The Court felt that there were certain rights that were fundamental to ordered liberty that should apply to a unified nation. The Supreme Court chose to use the 14th Amendment to acknowledge these fundamental rights and prevent infringement upon them by the States. Most people would agree, and history supports, that these fundamental rights shouldn’t be infringed upon by the anyone (not the Federal Government or the States). The 14th Amendment made that possible.
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And see my last comments re adopting predigested views obtained from secondary sources.
Re the effect of the Declaration of Independence: You could be elena kagan’s soul mate. Her’s is the view of the modern totalitarians. But I will give you the benefit of the doubt and assume that you do not understand the consequences of that view. I explain the consequences in my papers on Rights.
I ask you again to read my 4 papers under the Category “Rights”.
All you are doing so far is repeating yourself with the same stuff which reads as if it were written by an education major who is specializing in American history. If you are not willing to learn, you are wasting my time.
But if you are willing to learn, I can teach you all I know. And I will show you the necessity of proving your statements. [As I do in each of my papers.] The decision is yours. But much is at stake.
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By the way, our founding fathers were NOT religious. In fact, they recognized how religious tyranny can destroy a government and its people. The United States is a representative Democracy, NOT A THEOCRACY! Simply look to the first amendment and the freedom of religion and separation of church and state for proof.
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Oh, Steven, you are grievously misinformed on the religion of our Framers and the “establishment clause”. Please read this paper, ponder it, and give me your comments or questions: “The Lie of ‘Separation of Church and State ‘ ”.
I do not think you can find any errors in that paper.
And the overriding issue is this: Do we have a Constitution which the supreme Court must obey? OR, do we have no Constitution at all, but are ruled by five (5) people on the supreme Court? PH
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You frame the issue to the point it becomes a hobson’s choice. I don’t want to get into a war of quotes. A simple search on Google yields hundreds of quotes from very influential people that support both sides of our argument. The reality is this: the Constitution NEEDS to be interpreted. By who? Article III gives adjudication power to the Supreme Court. Full Stop. No debate.
Where things get messy is in interpretation. You think the constitution should be interpreted one way, i think a different way, and millions of americans think another way. There has always been and always will be a debate as to the proper interpretation.
Your blog encourages people to become sophisticated and I agree. What I don’t agree with is implying “sophisticated” means “your views.” You encourage people to “highlight” passages that support your view and ignore others that don’t. This kind of philosophy is narrow minded.
Not once did you articulate the other side of the argument and let the readers decide which is more persuasive. Instead, your article is just a collection of quotes from authors with similar views as your own. I’m sure the readers would appreciate if you didn’t insult their intelligence and allow them to make their own decisions in regard to “the truth.”
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The Basic Question is this: Does the Constitution have an “objective” meaning, OR does it “mean” whatever five (5) people on the supreme Court say it means?
(1) I explain the philosophies behind both views in my paper: how-progressive-education-and-bad-philosophy-corrupted-the-people-undermined-the-constitution-of-the-united-states/
READ IT! You and I are now on opposite sides. Don’t you want to know what the other side – the objectivist side – says and why?
(2) I, PH, have no personal views about the meaning of The Constitution. And if I did, I would dismiss them as irrelevant. What is relevant is the meaning The Constitution was understood to have when it was ratified.
The Federalist Papers were written during 1787-88 to explain the proposed Constitution to The People and to induce them (through their States) to ratify it. For this reason, The Federalist Papers are authoritative on the genuine meaning of the Constitution. And at a meeting attended by Thomas Jefferson & James Madison of the Board of Visitors of the University of Virginia on March 4, 1825, the following resolution selecting texts for the Law school was passed:
Go here for the quote
The Constitution is not something which people are free to make their own decisions about!
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Any paper TITLED “How Progressive Education and Bad Philosophy Corrupted the People and Undermined The Constitution” will NEVER present both sides to an issue. Your website is the last place people should look for objective information. Sorry.
And to put this issue to bed, I will quote Justice Marshall in arguably the most influential case of all time, Marbury v. Madison, decided in 1803: “It is emphatically the province and duty of the Judicial department to say what the law is.” So yes, Five people say what the Constitution means. If you don’t like it, then tough, that is over 200 years of Stare Decisis and will likely never be overturned.
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What, pray, are “both sides” of this issue? Tell me, if you can.
I say: There is TRUTH, and there are lies. Do you have any PROOF that anything I say is not true? And should I present lies to show that I am “open minded” and do not unfairly discriminate against lies?
Marbury v. Madison! Now you claim status as an expert on jurisdiction! Open your eyes, man! Read the papers on nullification under the Category: Nullification US Constitution
After you have read them, we can chat if you want. But do not waste my time with any more of your posts if you are not willing to learn.
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I completely disagree with this author’s analysis.
First, the author, throughout the paper, is making a textualist argument with Scalia as fodder. He believes the constitution is a document frozen in time that the people should adhere to forever. However, the author is making an argument blatantly steeped in purposivism. He argues the true purpose of the 14th amendment is to protect former slaves from state tyranny. But if that were true, why wasn’t the 14th amendment drafted to specifically apply to ONLY former slaves? Our founding father’s are much more intelligent than you or I and devoted their entire lives to their work. Surely they wouldn’t have left a document so important to be interpreted by future judges had they not meant for them to do so.
Second, the judges aren’t creating policy. It’s true, the judges are influencing policy. But their determination of a fundamental right under the due process clause merely elevates that right to heightened scrutiny. Instead of a legitimate interest, the state has the burden of proving they narrowly constructed a statute to meet a compelling state interest. If the state can prove that taking away someones fundamental rights serve a compelling purpose, it is legal for them to do so.
Furthermore, the courts have used great deference in establishing a right as fundamental. The author quotes the right to abortion and the right to privacy. Our country is over 200 years old. Yet the Supreme Court has raised only a handful of rights to be fundamental. The author’s doomsday scenarios are simply not supported by history.
One last point, the author is intertwining, at liberty, equal protection issues with “liberty” issues of the due process clause. Both the Equal Protection and Due Process clause live in the 14th amendment, they require a separate analysis and have different legal consequences. Be informed citizens. There is almost ALWAYS two sides to every story. Note: most of the controversial cases the author cites are close calls (5-4). Some of the best legal minds in the country are deeply divided on these issues for a reason.
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You say: “I completely disagree with this author’s analysis.”
I ask: Is your subjective agreement or disagreement the standard, or is there an objective standard of what is – and what is not – constitutional?
You say: “He believes the constitution is a document frozen in time that the people should adhere to forever.”
I say: YES, I DO! We are sworn to obey the Constitution which was ratified (Art. VI, clause 3). Article V sets forth the procedures for amending the Constitution. Note that judges are not permitted to rewrite the Constitution in their opinions.
You say, “He argues the true purpose of the 14th amendment is to protect former slaves from state tyranny.”
I say: Yes! Look at Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment, linked in my paper. Prof. Berger 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.
You said, “But if that were true, why wasn’t the 14th amendment drafted to specifically apply to ONLY former slaves?”
The original intent is spelled out in the Congressional Record! It is at your fingertips. And perhaps the drafters of the amendment expected us to have a basic knowledge of history.
You said, “Our founding father’s are much more intelligent than you or I and devoted their entire lives to their work.”
I point out: (1) The 14th amendment was not written by our Founding Fathers in 1787, but was written shortly after the War for Southern Secession.
(2) I agree that our FRAMERS were far better educated that we are today. I address that precise issue in my paper on this site titled, “How Progressive Education and Bad Philosophy Corrupted The People & Undermined The Constitution of The United States”
You said, “Surely they wouldn’t have left a document so important to be interpreted by future judges had they not meant for them to do so.”
I say: The drafters of the Constitution and the drafters of the 14th Amendment did NOT grant to future judges the power to reinterpret any provision of the Constitution any way they pleased. Article V still applies.
Re the third para of your comment: As I clearly lay out in my paper, in Ch. 11 of his book, Prof. Berger shows the true meaning of the “due process” clause of the 14th Amendment. “Due process of law” is a term with a “precise technical import” going back to the Magna Charta. Nothing in the Constitution gives judges authority to REDEFINE WORDS AND LEGAL TERMS to fit their own personal opinions of what the law should be.
Re the fourth para of your comment: The most fundamental Principle of our founding is this: Our Rights come from God [or, for the secularists, the Natural Law] and thus pre-date & pre-exist the Constitution. Please read this paper (which is also on this site), ponder it, and then comment: “Do Our Rights Come from God, the Constitution, the Supreme Court, or Congress?” In that paper, I show among other things, why it is dangerous to say that our rights come from The Constitution or the government.
Re your last para: As I show, the supreme Court has redefined “liberty”! They have redefined it to mean “license” or freedom from the moral laws; they have rejected the original definition of the word as freedom from compulsion from an arbitrary & lawless civil government. In order to be faithful to the Constitution, we must adhere to the definitions of the words as understood and as shown in Professor Berger’s masterful book. The Constitution does not permit the supreme Court to sit as a continuing constitutional convention redefining words to serve their own opinions of how things should be. PH
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Intent is just a tool used for interpretation. However, the fact remains that the 14th amendment makes no mention of slaves. How easy would it have been to just put the word “slave” in 14th amendment, like it was in the 13th amendment? Instead, the first section of the 14th amendment starts with “ALL persons,” then goes on to say “no state shall deprive ANY PERSON life liberty or property or deny ANY PERSON equal protection.” I don’t care what the original PURPOSE of the 14th amendment was. It may very well have been, and probably was, inspired by the recent civil war. But the amendment, as approved by Congress, was written to apply to ALL PERSONS.
I want to make my argument very clear. The court has only held certain rights to be fundamental, like the right to marriage. But even a fundamental right can be infringed upon if the state can show it has a compelling interest to do so. An example of this is gay marriage. Even though there is a fundamentally protected right to marriage, the courts have held the state has a compelling interest in defining marriage. Every state has its own laws either forbidding or permitting gay marriage.
In regards to sexual orientation. Someone’s sexual orientation has no fundamental protection at all. It’s not a suspect class and the state need only show a legitimate state interest (lower scrutiny than a compelling interest).
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You said: “I don’t care what the original PURPOSE of the 14th amendment was.”
I point out: Ignoring the original intent of the 14th Amendment is what permits the supreme Court to use it as a blank check to fill out any way they want: Abortion, homosexual contact, homosexual marriage, etc. Kennedy admitted this in the majority opinion: They can define “liberty” any way they want!
I pointed out in my paper that they changed the definition of “liberty” : FROM freedom from coercive civil government TO freedom from the moral laws. This is an illustration of their concept of an “evolving constitution” – it means whatever they want it to mean!
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Article III states: “The judicial Power of the United States, shall be vested in one supreme Court.” It then goes on to say: “In all Cases affecting…those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.”
The Framers anticipated there to be disagreements at the federal and state level and created an Article III Supreme Court to adjudicate those issues. The Supreme Court is simply interpreting the constitution as written, NOT writing new laws.
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Yes, the supreme Court has original [trial] jurisdiction in all cases of federal cognizance in which a State is a party. Read my two papers under the category: Article 3 courts.
No, the supreme Court ignores the Constitution as written. There is a vast difference between the original intent of the Constitution (as explained in The Federalist Papers), and the opinions of the supreme Court during the last 100 years. Read my paper, “Congress’ Enumerated Powers”. They claim that the meaning of the Constitution “evolves”.
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[…] 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. Posted on February 5, 2011 by gayterribletruth 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. https://publiushuldah.wordpress.com/2011/01/10/judicial-abuse-of-the-fourteenth-amendment-abortion-se… […]
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Pingback by 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. | gayterribletruth | February 5, 2011 |
[…] at my website may be easier to follow: http://canadafreepress.com/index.php/article/32004 or https://publiushuldah.wordpress.com/2011/01/10/judicial-abuse-of-the-fourteenth-amendment-abortion-se… These are points made in the paper: 1. The powers of the federal courts are […]
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Pingback by “WE ARE IN THE FIGHT FOR OUR LIVES AND OUR POSTERITY” | Tennesseans Watching Federal & State Government | January 12, 2011 |
PH,
This is brilliantly written. Yes, Hamilton was smarter than all of them, even smarter than Franklin and certainly an intellect to check Jefferson’s
The point about us handing over to courts the constitution so as to define our God given rights is MOST important.
Our US Constitution was written by Godly Men whose passions were for God and not king or Court, or State!
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Publius Huldah is to be congratulated! More founding education is needed to erase the decades of subversive actions to prevent the people of the United States from understanding what the self imposed elite are doing to our Republic and Central Government by dumbing down our citizens.
The Articles of Confederation, Declaration of Independence, U.S. Constitution and Bill of Rights are the founding documents upon which our nation was founded.
Our nation will cease to exist if our founding documents are not finally adhered to by the Central Government’s three branches. The founders put their trust and power in the people to keep the republican form of government they gave us. We have let them down, but it is only we, the people, who have the constitutional power to right our ship of state and put it back on a course to Constitutional law. We will fight in our schools. We will fight in our press. We will fight in our Churches. We will fight in the halls of Congress. We will fight in the Whitehouse. And, we will fight in the Supreme Court to reinstate the basic constitutional laws of our republic…
Al
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So what recourse do we have against these activist judges? Is this where Tom Wood’s nullification applies?
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Nullification of unconstitutional federal court decisions is proper & appropriate:
1. Remember, Alexander Hamilton points out in Federalist No. 78 (6th para):
So yes! The executive’s refusal to enforce unconstitutional judgments of courts is the “check” which the EXECUTIVE branch has on the judicial branch. [The LEGISLATIVE branch’s “check” is impeachment.] Officials of the State Executive Branch can nullify unconstitutional federal court opinions by refusing to support them just as the President can. And if the President sends in U.S. marshals to enforce unconstitutional federal court opinions, then the State Governor needs to call in the State militia. Or the Sheriff of the County may call in his forces to prohibit enforcement of unconstitutional federal court opinions. States must either defend themselves and their Citizens from federal encroachments, or submit to the tyranny which is right now being imposed on us.
2. The STATES have not only the inherent Right, but the Duty, to nullify unconstitutional acts of any branch of the federal government, including the judicial branch. Remember, State officials take Oaths to support the Constitution (Art. VI, 3rd cl.) – their Oaths are not to obey whatever the federal courts say.
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