Publius-Huldah's Blog

Understanding the Constitution

Searching for “Marriage” in the Fourteenth Amendment

By Publius Huldah.

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

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

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

Section 1 of the 14th Amendment says:

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

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

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

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

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

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

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

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

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

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

I’ll show you.

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

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

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

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

2. Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party [“status of the parties” jurisdiction]; and

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

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

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

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

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

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

“Expressly contained”. Hamilton then gives examples of such cases: If a State violates the constitutional provisions which prohibit States from imposing duties on imported articles, or from issuing paper money [Art. I, §10], the federal courts are in the best position to overrule infractions which are “in manifest contravention of the articles of Union. [i.e., Constitution]”

Do you see?

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

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

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

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

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

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

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

Endnotes:

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

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

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

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

3 Professor Raoul Berger shows in Government by Judiciary: The Transformation of the Fourteenth Amendment, that the purpose of §1 of the 14th Amendment was to extend citizenship to freed slaves and protect them from southern Black Codes which denied them basic rights.

Professor Berger shows in Chapter 11 (page 222 of his book) that “due process” is a term with a “precise technical import” going back to the Magna Charta.  It means that a person’s life, liberty or property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Berger stresses that “due process of law” refers only to trials – to judicial proceedings in courts of justice.  It does not involve judicial power to override State Laws!

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

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

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

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

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

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

May 11, 2015

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May 11, 2015 - Posted by | 14th Amendment, Marriage, Marriage Amendment, same sex marriage | , , , , , , , , , , , , ,

41 Comments »

  1. there is no 14th, is it not void ?? everyone it applied to is dead!

    Like

    Comment by ron vrooman | November 29, 2015 | Reply

    • Yes, certainly all but Section 1 of the 14th Amendment are moot. IF we had a rational populace, Section 1 could be improved by another amendment. But today, Americans are so ignorant and irrational, that we shouldn’t tinker with even one comma in our Constitution.

      Like

      Comment by Publius Huldah | November 29, 2015 | Reply

  2. […] It should tell you that the national government has no authority to meddle in these three areas. My paper on marriage explained this very clearly, I […]

    Like

    Pingback by WHEN may courts lawfully strike down, under the “supremacy clause”, State laws and provisions in State Constitutions? | TennesseeWatchman.com Liberty News | November 12, 2015 | Reply

  3. I have to disagree on one point and one point only. The Full Faith and Credit Clause of the Constitution – I can’t cite which article and section at the moment as I’m on my phone at work – said that the public acts – of which marriage is – of each State shall be recognized in each other state, so a marriage lawfully performed in one state must be recognized by all other states. Otherwise I agree with you.

    Like

    Comment by janagyjr | September 11, 2015 | Reply

    • Ah! Of course I looked at the full faith & credit clause! I addressed it in Footnote 2 of the very paper you commented on. Always read the footnotes!

      Like

      Comment by Publius Huldah | September 11, 2015 | Reply

  4. […] It should tell you that the national government has no authority to meddle in these three areas. My paper on marriage explained this very clearly, I […]

    Like

    Pingback by WHEN may courts lawfully strike down, under the “supremacy clause”, State laws and provisions in State Constitutions? « Publius-Huldah's Blog | September 10, 2015 | Reply

  5. […] opinion in the homosexual marriage cases was a grotesque usurpation of powers not delegated. https://publiushuldah.wordpress.com/…/searching-for-marria…/ And the opinion of these FIVE (5) morally degenerate lawyers is not “law” in any sense of the […]

    Like

    Pingback by The TRUTH about the “supremacy clause”. « Publius-Huldah's Blog | September 6, 2015 | Reply

  6. Ok, I found what I needed by searching, thanks.
    Seeded this to Newsvine.
    http://adhominemthememe.newsvine.com/_news/2015/09/05/34030122-searching-for-marriage-in-the-fourteenth-amendment

    Like

    Comment by styersbd | September 5, 2015 | Reply

    • Thank you, Styersbd

      Like

      Comment by Publius Huldah | September 5, 2015 | Reply

  7. so how do you nullify non-acts of congress?

    Like

    Comment by Rob John | May 21, 2015 | Reply

    • Give a specific example of such a “non-act of congress”. So I’ll know what you are talking about.

      And don’t forget the info I asked for about Scalia!

      Like

      Comment by Publius Huldah | May 21, 2015 | Reply

      • I when I get to a real keyboard I will get the scalia stuff, promise.

        As for non-Acts of congress. An example would be the budget process. The States cannot nullify federal budgets, the process or borrowing, that is a fact, not an opinion. Suppose congress were to borrow 40% of its budget and concerned citizens and States want that stopped. How can nullification aide those efforts? Only an amendment to the Constitution can force an unwilling congress and president to comply.

        Like

        Comment by Rob John | May 21, 2015 | Reply

        • Budget? Where does the Constitution authorize a “budget”? We never had a budget until the Budget and Accounting act of 1921.

          If you go thru the Constitution and highlight all the powers delegated to Congress and the President, you will get a complete list of the objects on which Congress is authorized to spend money. We have the national debt b/c Congress has been spending money on objects for which it has no constitutional authority to spend. You can’t fix that by making an amendment saying they can’t spend money on, e.g., a museum for neon signs. And so on for every other unconstitutional object of their spending.

          Right, the States can’t nullify federal budgets; but they sure can refuse to take money to implement unconstitutional federal programs!

          There is no political fix for our problems: Our problems are moral, spiritual, and intellectual.

          You can’t fix that by changing the Constitution. But you sure can replace the Constitution with a very different one. And THAT is the plan. You didn’t know?

          And our brain-dead ignorant citizens are the ones who keep electing these free-spending people to Congress. The IGNORANCE of the People is appalling. They are too lazy to read the Constitution and learn the list of enumerated powers. It takes about 30 minutes to read thru the Constitution and highlight all the powers delegated to Congress and the President. But they won’t do that.

          So I say, don’t touch our Constitution. It isn’t broken – The People are broken.

          Liked by 1 person

          Comment by Publius Huldah | May 21, 2015 | Reply

          • 1979? Are you kidding? Even I wasn’t that bright 36 years ago.

            How about Scalia’s words some 35 years after the report you linked to?
            http://dailysignal.com/2015/05/11/supreme-court-justice-scalia-constitution-not-bill-of-rights-makes-us-free/

            “A constitutional convention is a horrible idea,” he said. “This is not a good century to write a constitution.”

            Like

            Comment by Publius Huldah | May 24, 2015

          • ever hear the saying if all men were angels, we wouldnt need government, or for that matter a constitution. i believe it was was Jefferson who once expressed the constitution was īmperfect, that future generations would need to amend the constitution as only experience can reveal about the future. im sure youve read it before.

            Like

            Comment by Rob John | May 24, 2015

          • OK! You know the drill:
            1. Where did Jefferson say words to the effect that, “the constitution was īmperfect, that future generations would need to amend the constitution as only experience can reveal about the future.”
            2. What Constitution was he talking about? The federal Constitution? A State Constitution?
            3. And did he advocate an Article V convention for amending the federal Constitution? Where?

            PRECISION! FACTS! DOCUMENTATION! and CLEAR THINKING!

            Like

            Comment by Publius Huldah | May 24, 2015

          • I hear a LOUD. Chirp, chirpy chirp chirp coming from Rob.

            Just sayin’.

            Like

            Comment by Diamondback | June 1, 2015

          • I’m waiting for Rob’s answer to my questions!

            Like

            Comment by Publius Huldah | June 1, 2015

          • Enumerated powers are not the only powers mam and you know it. Answer my question. And why does sc justice scalia say your wrong about cos?

            Like

            Comment by Rob John | June 2, 2015

          • AHEM, Rob John! I repeat my post to you of May 24 – which you have not answered:

            1979? Are you kidding? Even I wasn’t that bright 36 years ago.

            How about Scalia’s words some 35 years after the report you linked to?
            http://dailysignal.com/2015/05/11/supreme-court-justice-scalia-constitution-not-bill-of-rights-makes-us-free/

            “A constitutional convention is a horrible idea,” he said. “This is not a good century to write a constitution.”

            You also have not responded to my other post to you of May 24:

            OK! You know the drill:
            1. Where did Jefferson say words to the effect that, “the constitution was īmperfect, that future generations would need to amend the constitution as only experience can reveal about the future.”
            2. What Constitution was he talking about? The federal Constitution? A State Constitution?
            3. And did he advocate an Article V convention for amending the federal Constitution? Where?

            PRECISION! FACTS! DOCUMENTATION! and CLEAR THINKING!

            LOOKIE: I UNDERSTAND THE TECHNIQUE YOUR SIDE USES: Your side makes absurd and untrue statements – then when challenged, you change the subject or repeat the original absurd and untrue statement. THEN you make personal attacks against your opponent.

            So address the above two issues I presented to you.

            THEN we will discuss “enumerated powers”. FOCUS!

            Like

            Comment by Publius Huldah | June 4, 2015

          • there is no 14th amendment and several others also. How do we nullify that stuff.

            Like

            Comment by ron | June 2, 2015

          • Of course there is a 14th Amendment!

            The problem is the supreme Court has perverted it.

            What to do about the Supreme Court’s perversions of the 14th Amendment? I illustrate the answer here: https://publiushuldah.wordpress.com/2015/05/11/searching-for-marriage-in-the-fourteenth-amendment/

            Do not let your own notions blind you to what is right before your nose.

            Like

            Comment by Publius Huldah | June 4, 2015

          • What I asked you to do is this:

            1. Where did Jefferson say words to the effect that, “the constitution was īmperfect, that future generations would need to amend the constitution as only experience can reveal about the future.”
            2. What Constitution was he talking about? The federal Constitution? A State Constitution?
            3. And did he advocate an Article V convention for amending the federal Constitution? Where?

            PRECISION! FACTS! DOCUMENTATION! and CLEAR THINKING!

            The random collection of quotes you linked to does not address these issues.

            No one disputes that amendments to the federal Constitution are needed to correct DEFECTS in the Constitution. E.g., the 11th, 12th, & 13th amendments corrected DEFECTS in the federal Constitution.

            The disputed issue is whether an Article V convention is a safe and prudent way to control the federal government when it usurps powers not delegated by the Constitution.

            You intimated earlier that Thomas Jefferson was all for an Article V convention to rein in the federal government when it usurps power. I’m asking you to show me where Jefferson said that about the federal Constitution.

            Like

            Comment by Publius Huldah | June 4, 2015

          • You can nullify existing federal laws, when a State thinks it unconstitutional, however you cannot use nullification to reform the federal government itself. Reform can only be accomplished by federal politicians, if they are willing, which they are not; or by amending the Constitution, through Article V. Anyone disagree?

            Like

            Comment by Rob John | June 4, 2015

          • Give an example of how you an amendment can reform the “federal government itself”. Give an example of what needs reforming and how an amendment can fix it and show why nullification can’t fix it.

            And you have still to address Justice Scalia’s recent comment about how a convention is a horrible idea. http://dailysignal.com/2015/05/11/supreme-court-justice-scalia-constitution-not-bill-of-rights-makes-us-free/

            Like

            Comment by Publius Huldah | June 4, 2015

          • As to Rob John’s comment below (where I do not find a ‘reply’ button) which says:

            “Reform can only be accomplished by federal politicians, if they are willing, which they are not; or by amending the Constitution, through Article V. Anyone disagree?”

            I disagree.

            How could one believe that passing a new amendment could force politicians to obey the law when they have shown repeatedly they believe themselves clever enough and insulated enough to ignore the clear legal limitations already placed upon them?
            When people break the speed limit, it makes no sense to put up a new speed limit sign. The answer is to enforce the law. The sign is not the problem.

            Like

            Comment by topcat1957 | June 7, 2015

          • Amen! I marvel that it is necessary for us to have to say that. Yet it is. Mass insanity.

            Like

            Comment by Publius Huldah | June 7, 2015

  8. Hi PH, along with your excellent paper, my problem with same-sex marriage advocates using the equal protection clause as a reason to redefine marriage is because its factually wrong. All men and women of age are equal under traditional marriage law. Any man can marry any woman he wants(unless closely related) and any woman can marry any man she wants. No one is excluded from one man one woman marriage laws. No one has to choose a same-sex partner. Homosexuals are not born homosexuals, they aren’t genetically forced to choose a same-sex partner. In fact all all reputable experts will tell you its “post birth factors” that cause people to explore homosexual behavior. So, unless homosexuals can provide scientific proof that shows they can’t possibly choose an opposite sex partner then there cannot possibly be a violation of the equal protection clause.

    I forget which founder said it, but I certainly agree with him…. “Marriage is a contract of natural law”. Same-sex marriage violates natural law and there is certainly no constitutionally protect right to it. God defined and ordained marriage as between one man and one woman. Traditional marriage is one of our God given “unalienable Rights” and is constitutionally protected via the 10th amendment.

    Like

    Comment by Spense | May 12, 2015 | Reply

  9. In support of our Constitution the congress should be contacted and asked to support “Restrain the Judges on Marriage Act of 2015.

    Like

    Comment by Henry Stevens | May 11, 2015 | Reply

    • I haven’t read the proposed bill you mention. But as a matter of constitutional Principle, it is a serious mistake to make a Law which says the federal courts can’t do something which the Constitution doesn’t give them power to do.

      The REMEDY for federal judges who usurp power is impeachment, trial, conviction, and removal from the bench. See Federalist No. 81 (8th para). Also, see my short Primer on Impeachment. [Look under the Categories on my home page for Impeachment].

      The Problem is that we elect to Congress people who don’t know this and who are to weak & timid to use the Remedy for judicial usurpation the Constitution already provides.

      Like

      Comment by Publius Huldah | May 12, 2015 | Reply

      • Publius,

        Please add a LIKE or UP VOTE function to your comments.

        Just kiddin’. But it would be fun as I so often look for it.

        No response expected. I hope you’re busy helping save the Republic.

        Like

        Comment by Diamondback | June 1, 2015 | Reply

        • We didn’t even have copying machines when I finished law school – legal secretaries made carbon copies – so this ‘puter technology is way way ahead of me. I don’t know how to do half the things on wordpress.

          Like

          Comment by Publius Huldah | June 1, 2015 | Reply

          • Hi Publius,

            If you ever decided to add a like / upvote feature, the easiest way to do that would be to use the Disqus plugin.

            https://wordpress.org/plugins/disqus-comment-system/

            You could then import all your current comments into the disqus system like this:

            https://help.disqus.com/customer/portal/articles/466255-importing-comments-from-wordpress

            After that, people could upvote on your comments and the best ones would rise to the top. The New American website uses Disqus for all their comments if you want to see it in action.

            Like

            Comment by aarongray | August 30, 2015

          • Well, I see you are a ‘puter wizzard, and your suggestion is an excellent one. Except that implementing it is way over my abilities. I’d have to find someone to come here and do it.

            Like

            Comment by Publius Huldah | August 30, 2015

          • Haha, sounds good. Computers are complicated and humbling animals to work with, so I understand.

            I’d be glad to help out, but I am rather tied up right now. This is a small task, and any WordPress developer worth his salt could do it a very short time. So that means it shouldn’t be expensive for you – I wouldn’t pay anyone more than a hundred dollars or so. If you’re looking for a personal recommendation, my good friend Brian Krogsgard might be able to help you out.

            http://krogsgard.com/

            Take care, and thanks again for the interesting blog you have here.

            Like

            Comment by aarongray | September 1, 2015

  10. Great logic built upon facts.

    Like

    Comment by Phillip J. Owings | May 11, 2015 | Reply

  11. Profound appreciation for you in your erasing a concern I have had since the gay marriage dust-up began…how does the “equal protection clause” you referrenced not offer yet another road to unisex marriage acceptance as an equality, in spite of the obvious inequities. Transcript of the first day arguments seemed to dash hopes as fast as they appeared.
    Then you appeared, bringing the answer for those of us ill equipped to ferret out the logic of the written Constitution and its first 10 Amendments. (The remainder notwithstanding, as they were written by lesser men, and thus suspect, to varying degrees.)

    Like

    Comment by paleophlatus | May 11, 2015 | Reply

    • I’m with you, paleo, regarding not giving as much consideration to Amendments following the Tenth.

      The frauds being perpetrated on the people are simply unbelievable – which is why, I guess, so many people think we’re crazy when we try to explain it to them.

      Once in a great while I get through to one though and it makes it all worthwhile.

      Like

      Comment by Diamondback | June 1, 2015 | Reply

      • Oh, we get through more than once in a while! And people need to hear things many times before it sinks in.

        Our Constitution is really very simple.

        Like

        Comment by Publius Huldah | June 1, 2015 | Reply


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