Publius-Huldah's Blog

Understanding the Constitution

The Plot to Impose a National Sales Tax or Value Added Tax

By Publius Huldah

A devilish plot is afoot to impose new national taxes on the American People. It is a masterful piece of trickery because the authorization for the new national taxes is buried within Compact for America’s version of a balanced budget amendment to the US Constitution.

Furthermore, the balanced budget amendment does nothing to control federal spending; and transforms our Constitution from one of limited and defined powers to one of general and unlimited powers. 1

Yet this monstrosity is pending in Michigan as SB 306 2 and in North Carolina as HB 366. 3 Legislators in four States, Alaska, Georgia, Mississippi and North Dakota, have already passed it.

Let’s look at Sections 1-6 of Compact for America’s balanced budget amendment:

It does Nothing to Control Federal Spending

Section 1 allows Congress to spend as much as they take from us in taxes and add to the national debt. That’s a good idea?

Sections 2 and 3 permit Congress to raise the debt whenever 26 States agree.  States are addicted to federal funds. Will 25 States agree not to take more federal funds?

Section 4 is a joke:  Who believes Congress will impeach a President for refusing to “impound” an appropriation made by Congress? Congress won’t even impeach a President for Treason.

How Authorization for the New Taxes is Hidden

Section 5 says:

“No bill that provides for a new or increased general revenue tax shall become law unless approved by a two-thirds roll call vote of the whole number of each House of Congress….” [italics mine]

What is a “general revenue tax”? Section 6 defines it:

“…’general revenue tax’ means any income tax, sales tax, or value-added tax levied by the government of the United States…” [italics mine]

Now go back to Section 5 and substitute the definition of “general revenue tax” for that term:

“No bill that provides for a new or increased income tax, sales tax, or value-added tax levied by the government of the United States shall become law unless approved by a two-thirds roll call vote of the whole number of each House of Congress….”

There it is: All that’s needed is approval of two-thirds of the members of each House and a new national sales tax and/or value added tax is imposed on us. And they can increase it, along with increasing the income tax, whenever they get two-thirds of the members to vote for it.

Section 5 also permits Congress to make laws to impose a new “end user sales tax” 4 which would replace the income tax – this “end user sales tax” is passed by a simple majority of both houses.

So! Compact for America’s balanced budget amendment provides two options to Congress:

· Two-thirds of the members of both Houses can impose a new sales tax and/or value-added tax in addition to the income tax; or

· A simple majority of both Houses can impose “a new end user sales tax” which replaces the income tax.

Which option will Congress choose?

Our Constitution Doesn’t Now Authorize a National Sales Tax or Value-added Tax

Article I, §8, clause 1 says:

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises…”

Principles of Compact for America say this clause already authorizes a national sales tax or value added tax. Board Vice-President Chip DeMoss said on Feb. 12, 2014:

“a national sales tax would be an “impost” (defined as a tax or similar compulsory payment) that is authorized under Article I, Section 8, Clause 1…” [see comments and scroll down after comment 19 till you see Chip DeMoss’ name].

We may not properly use DeMoss’ redefinition of “impost”!

We must use the definition of “impost” our Framers used: The Federalist Papers say an “impost” is a tax or duty on imports. Type imposts in the search box [at the link] and the Papers discussing imposts will come up. See for yourself that an “impost” is a tax or duty on imports.

Webster’s 1828 Dictionary defines “impost” as:

“…Any tax or tribute imposed by authority; particularly, a duty or tax laid by government on goods imported, and paid or secured by the importer at the time of importation. Imposts are also called customs.”

Do you see?

National sales taxes and value-added taxes are also not “excise” taxes. Excise taxes are a tax on a unit of goods – such as the infamous whiskey excise tax of 1791 which led to the Whiskey Rebellion. 5 It imposed a flat tax per gallon. The tax was payable for domestic whiskey at the distillery (§17 of the Act) and the casks were numbered and marked to show the tax had been paid (§19 of the Act).

“Taxes” at Art. I, §8, clause 1 refers to the apportioned direct tax provided for at Art. I, §2, clause 3 of our Constitution.

Our Framers were specific about the kinds of taxes Congress is permitted to impose. Congress does not have the power to impose any kind of tax it wants. Our Framers limited Congress’ taxing power to:

· the apportioned direct taxes at Art. I, §2, clause 3;

· the duties or imposts on imports at Art. I, §8, clause 1; and

· the excises at Art. I, §8, clause 1.

A sales tax is none of the above. A sales tax is a percentage of the retail price of goods. A value-added tax is a “turbo-charged national sales tax on goods and services that is applied at each stage of production, not merely on retail transactions” and raises a “gusher of revenue for spendthrift governments worldwide”.

We have never had a national sales tax or value added tax in this Country. Why? Because they are not authorized by the Constitution.

We were manipulated into supporting the 16th Amendment. We were told the income tax would “soak the rich” – and the envious drooled at the prospect.

And so again today, statists are seeking to trick us into supporting a national sales tax or a value added tax: first, by concealing it within the verbiage of the bill; 6 and then, once the trickery was exposed, by claiming the Constitution already authorizes these new types of taxes.

There is a Better Way: Downsize the Federal Government!

Our Constitution limits federal spending to the enumerated powers. The list of objects on which Congress may lawfully spend money is a short list. See the list HERE.

Most of what the federal government does today is unconstitutional as outside the scope of the powers delegated by the Constitution. Let’s cut federal spending by downsizing the federal government to its enumerated powers and constitutional limits.

Endnotes:

1 Congress’ spending is limited by the enumerated powers: If an object is on the list of enumerated powers (e.g., the patent & copyright office authorized by Art. I, §8, cl. 8), Congress may lawfully spend money on it. That’s how our Constitution already controls federal spending.

All versions of a balanced budget amendment change the constitutional standard for spending FROM whether an object is on the list of enumerated powers TO a limit on total spending where Congress may spend money on whatever they or the President put in the budget. This is what transforms our Constitution FROM one of enumerated powers only TO one of general and unlimited powers. And that is the true purpose of a balanced budget amendment. It has nothing to do with limiting federal spending – the pretended spending limits are fictitious since they may be waived whenever the feds [and 26 of the States] want to waive them.

2 Leon Drolet’s article of July 10, 2015, and Sam Easter’s article of July 8, 2015, about SB 306 pending in Michigan don’t mention the new national taxes.

3 Matthew Burns’ article about the hearing on HB 366 before N. Carolina’s House Judiciary Committee (which passed HB 366) doesn’t mention the new national taxes. Burns quotes the Bill’s sponsor, Rep. Chris Millis, as saying the problem is “Washington is unwilling or unable to limit itself.” So the solution is to massively increase Congress’ taxing powers?

4 “End user sales tax” is not defined in the balanced budget amendment.

5 Apparently, the practice of tarring & feathering “revenuers” began with the Whiskey Excise Tax.

6 The trickery was exposed over a year ago HERE. Since then, Compact for America has claimed the Constitution already authorizes the new taxes. Are we too gullible to be free? PH

August 26, 2015

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August 26, 2015 Posted by | Amendments to the Constitution, Balanced Budget Amendment, Chip DeMoss, Compact for America, enumerated powers | , , , , , , , , , , , , , , , , , | 16 Comments

Babies Don’t Provide Anchors!

By Publius Huldah

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…”

The purpose of this Section was to extend citizenship to freed slaves and to protect them from southern Black Codes which denied them basic God-given rights.

This Section does not provide that illegals who invade our Country and drop a baby here are automatically the parents of a US citizen.

The key is “subject to the jurisdiction thereof”: Consider the French ambassador and his lovely young wife stationed in Washington, DC. She gives birth to a child here. Her child was born here. But is her child “subject to the jurisdiction” of the United States? No! The child is subject to the same jurisdiction as his parents: France.

Consider the American Indians: Sec.1 of the 14th Amendment did NOT confer citizenship on American Indians. They were not “subject to the jurisdiction of the United States” – they were subject to the jurisdiction of their tribes.

An illegal alien who invades our Country is in the same status as the French Ambassador’s wife. The baby she drops here is “subject to the jurisdiction” of the Country she left.

So the 14th Amendment does NOT confer citizenship on babies of illegals born here – just as it does not confer citizenship on the babies of foreign diplomats stationed here.

Pursuant to Art. I, Sec. 8, clause 4, US Constitution, Congress may make laws deciding how people become naturalized citizens.

But Sec. 1 of the 14th Amendment does not confer citizenship status on babies born here of illegal aliens.

This is important.

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August 22, 2015 Posted by | 14th Amendment, Anchor Babies | | 21 Comments

“Natural Born Citizen” and Coverture.

At the common law, Husband and wife were “one” and The Man was The One. The legal name of this concept is “coverture”.

Married women weren’t separate legal entities in their own right. Their legal identity was subsumed under their Husband’s. Married women weren’t “citizens” in their own right.

Vattel and our Framers had the FATHER in mind in their concept of “natural born citizen”: The Man is the one who counts!

Later on, with Married Womens’ Property Acts in various States, female suffrage with the 19th Amendment, etc., this legal fiction of the wife’s legal identity being subsumed into that of her husbands, was ended. [However, as a holdover, married women still sometimes refer to themselves as Mrs. John Smith instead of Mrs. Mary Smith.]

At the time of our Framing, coverture was in full force and effect. SO it was the FATHER’s citizenship which counted. That is the original intent. That intent remains until Art. II, Sec. 1, clause 5 is amended pursuant to Art. V.  I propose an amendment saying that both the Mother and Father must be US Citizens at the time of their child’s birth for the child to be a “natural born citizen” within the meaning of Art. II, Sec. 1, clause 5.

So under the original intent of Art. II, Sec. 1, cl. 5 – which original intent continues until changed by amendment – IT DOESN’T MATTER WHO Barack Hussain Obama’s mother was, and it doesn’t matter WHO Ted Cruz’ mother is: Their fathers were not US citizens at the times they were born so THEY ARE NOT “natural born citizens”.

Before you gnash your teeth at this constitutional requirement which disqualifies Ted Cruz, look at Ted’s Record. Look at his connections. Look at his Wife’s connections. For Ted’s record, look at his actual position on gun control.  Look at his actual position on obamatrade. You think this guy will fix everything? You are gullible if you do.

Cruz is establishment all the way… he says what we want to hear – counting on us to ignore his record and connections.

Americans!  Will you wise up before it is too late?  No one out there will ride in to “fix everything”.

You better start getting ready for upheaval. Make plans.  Form alliances with your neighbors. Mend fences. Repent of your sins.

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August 20, 2015 Posted by | coverture, natural born citizen, Ted Cruz | , , | 42 Comments

Does the Creature Dictate to the Creator?

By Publius Huldah

WHERE did the federal government come from? It was CREATED by the Constitution.

WHO ratified the Constitution? WE THE PEOPLE, acting through special ratifying conventions called in each of the States.

So the federal government is merely the “creature” of the Constitution and is completely subject to its terms.

Those are not my words. Those are the words of Alexander Hamilton in Federalist Paper No. 33 (5th para), and Thomas Jefferson in his draft of The Kentucky Resolutions of 1798, under the 8th Resolution.

IT IS IMPOSSIBLE to have a correct understanding of the relation between the federal government and The People unless you understand that the federal government is merely the “creature” of the Constitution. It is not a party to it. The STATES are the parties to the constitutional compact (contract).

THIS is why James Madison said, in his Report of 1799 to the Virginia Legislature on the Virginia Resolutions of 1798, under his discussion of the 3rd Resolution, that THE STATES, as the creators of the federal government, are the final authority on whether their creature has violated the compact THE STATES MADE WITH EACH OTHER. The constitutional compact is between the Sovereign States. The federal government is merely the “creature” of that compact.

That is why the States have the natural right to NULLIFY unconstitutional acts of their “creature”, the federal government.

But our “creature”, the federal government, has taken the bizarre position that the Constitution means whatever THEY say it means.

Oh, do they need smacking down! Does the creature dictate to its creator?

The nullification deniers say, “YES!”

Manly men say, “NO!”

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August 10, 2015 Posted by | Nullification by States, nullification deniers, Nullification of unconstitutional acts, Resistance to tyranny | , , , , , , , | 30 Comments

BEWARE of the trickery behind a “balanced budget” amendment!

By Publius Huldah

Our federal Constitution is one of enumerated powers only. If you spend 20 minutes to read through the entire 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. THAT is how our Framers controlled federal spending. If it’s on the list of delegated powers, Congress may lawfully spend money on it.  But if it’s not on the list, Congress may not lawfully spend money on it.

Few people know of the existence of this list of delegated powers – no one in Congress seems to be aware of it.  Most of what Congress spends money on is not on the list.

The solution is to downsize the federal government back to the powers on the list.

All versions of a balanced budget amendment (BBA) fundamentally change the constitutional design – they create a new standard for spending: They change the constitutional standard for spending FROM whether the object is on the list TO a limit on total spending – where Congress may lawfully spend money on whatever they want.

To add insult to injury, the limits on spending are fictitious because the limits can be waived whenever the government votes to waive them.

So a BBA does nothing to reduce federal spending.

Why the push for a BBA? Because a BBA transforms our federal government FROM one of limited and narrowly defined enumerated powers – the items on the list – TO one of general and unlimited powers. This is because a BBA permits Congress to spend money on WHATEVER they want.

God gave you a brain. You have a moral obligation to use it. Look behind the curtain those agitating for an Art. V convention have put up.

And learn what’s on the list.

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July 30, 2015 Posted by | Article V Convention, Balanced Budget Amendment, not on the list, on the list | , , , | 25 Comments

Same sex marriage is now “the law of the land”? NOT SO!

1. The supremacy clause of the federal Constitution (Art. VI, clause 2) says that only the Constitution, laws made pursuant to the Constitution, and Treaties made under the authority of the United States are the supreme law of the land. Supreme Court “opinions” are NOT part of that supreme law.

2. Supreme court opinions are not “law” — they are OPINIONS on the cases [rightly or wrongly] before the Court. The ONLY ONLY ONLY federal law in this land is: The Constitution, Laws made by Congress which are permitted by the Constitution, and Treaties made by the President and the Senate which are permitted by the Constitution.

Supreme Court opinions are NOT LAW.

3. But the statists have managed to convince most Americans that the Supreme Court is THE highest law making body in the entire Country. If people would only read our federal Constitution and use their heads, they would have seen through this absurd claim 100 years ago.

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July 5, 2015 Posted by | Article VI, clause 2, Supremacy clause, Supreme Court | , , | 44 Comments

States Need Budgets – but Enumerated Powers Limit Federal Spending

By Publius Huldah

We will never solve our political and fiscal problems if we continue in our present state of ignorance of the fundamental distinction between the federal Constitution and the State Constitutions.

With our federal Constitution, we created a national government to which we delegated only a handful of enumerated powers. If you would trouble yourself to read the federal Constitution, this fact would jump out at you and hit you over the head. [THIS simple chart will get you started.]

The federal government doesn’t need a budget because Congress’ spending is limited by the enumerated powers. Congress is to appropriate funds to carry out the handful of delegated powers, and then it is to pay the bills with receipts from taxes. 1

And if you read your State Constitution, you will see that those who ratified it [foolishly] created a State government of general and unlimited powers subject only to the exceptions carved out by its Declaration of Rights. 2

Since State governments were created to possess general and unlimited powers, State governments may lawfully spend money on just about anything they want. 2 Accordingly, State governments need budgets to limit their spending to receipts.

But Federal Spending is limited by the Enumerated Powers

The federal Constitution lists the items Congress is permitted to spend money on. If you read through the federal Constitution and highlight the powers delegated to Congress and the President, you will have a complete list of the objects on which Congress is lawfully authorized to spend money. Here is the list:

· The Census (Art. I, §2, cl. 3)
· Publishing the Journals of the House and Senate (Art. I, §5, cl. 3)
· Salaries of Senators and Representatives (Art. I, § 6, cl. 1)
· Salaries of civil officers of the United States (Art. I, §6, cl. 2 & Art. II, §1, cl. 7)
· Pay the Debts (Art. I, §8, cl. 1 & Art. VI, cl.1)
· Pay tax collectors (Art. I, §8, cl.1)
· Regulate commerce with foreign Nations, among the several States, and with Indian Tribes (Art. I, §8, cl.3) 3
· Immigration office (Art. I, §8, cl.4)
· The mint (Art. I, §8, cl. 5)
· Attorney General to handle the small amount of authorized federal litigation involving the national government (e.g., Art. I, §8, cls. 6 & 10)
· Post offices & post roads (Art. I, §8, cl. 7)
· Patent & copyright office (Art. I, §8, cl. 8)
· Federal courts (Art. I, §8, cl. 9 & Art. III, §1)
· Military and Citizens’ Militia (Art. I, §8, cls. 11-16)
· Since Congress has general legislative authority over the federal enclaves listed in Art. I, §8, next to last clause, Congress has broad spending authority over the tiny geographical areas listed in this clause.
· The President’s entertainment expenses for foreign dignitaries (Art. II, §3); and
· Since Congress had general legislative authority over the Western Territory before it was broken up into States, Congress could appropriate funds for the US Marshalls, federal judges, and the like for that Territory (Art. IV, §3, cl. 2).

So! That’s about all Congress is authorized by our original Constitution to spend money on. 4 Did I leave anything out? To find out, take 20 minutes and, armed with a highlighter, read carefully through the original Constitution and see for yourself.

Let’s look at some of the appropriations bills passed by the First Congress: 5

· HERE is the Act for the establishment and support of Lighthouses, Beacons, Buoys, and Public Piers, of August 7, 1789 (expenditure authorized by Art. I, §8, next to last clause);

· HERE is the Act providing for the Expenses which may attend Negotiations or Treaties with the Indian Tribes, and the appointment of Commissioners for managing the same, of August 20, 1789 (expenditure authorized by Art. I, §8, clause 3 & Art. II, §2, cl. 2);

· HERE is the Act providing for the establishment of the Post Office, of September 22, 1789 (expenditure authorized by Art. I, §8, cl. 7); and

· HERE is the Act providing for the compensation of federal judges and the Attorney General, of September 23, 1789 (expenditure authorized by Art. III, §1 for the federal judges; & for the AG, Art. I, §6, cl. 2 & Art. II, §2, cl. 2 & Art. I, §8, last clause)

Read these appropriations bills: They are single subject, short, easy to understand, and illustrate how appropriations bills ought to be written.

So, do you see? Congress is to make the appropriations for the objects of the enumerated powers delegated to the national government.

Pursuant to Art. I, §9, clause 7, Congress is to periodically publish a Statement and Account of Receipts and Expenditures.

We don’t need a federal budget because the Constitution delegates to Congress only limited and narrowly defined authority to spend money.

Accordingly, the federal Constitution doesn’t provide for a Budget. We never had a federal budget until Congress passed the unconstitutional Budget and Accounting Act of 1921.

We got the crushing federal debt because for 100 years, Congress has been IGNORING the existing constitutional limits on its spending. Most of Congress’ spending is unconstitutional as outside the scope of the delegated powers.

The Answer to our political and fiscal problems is already laid out in the federal Constitution: Downsize the federal government to its enumerated powers and return the usurped powers to the States or the People.

Why are Some Pushing for a Federal Balanced Budget Amendment (BBA)?

Many of those clamoring for a federal BBA don’t know about the fundamental distinction between the federal and State Constitutions. But they want to do something about the out of control federal spending; they are told a BBA is the answer; and so, without giving it much thought, they jump on the bandwagon.

But others have an evil agenda in pushing for a BBA – an agenda so evil that if they disclosed it, most Americans would reject it:

All versions of a BBA transform our federal Constitution from one which created a national government with only a few enumerated powers to a national government of general and unlimited powers. This is because BBAs substitute a “budget” for the enumerated powers; and accordingly, the national government would become lawfully authorized by the Constitution to spend money on whatever they put in the Budget!

That unlimited spending power on whatever they want is what would transform the national government into one of general and unlimited powers.

To add insult to injury, while all versions of a BBA pretend to limit spending; they actually permit increases in spending and increases in debt whenever the government body votes to do so. 6

Conclusion

 When the history of our time is written, do not let it be said that the American People were too ignorant and lazy to be free. Do not let tricksters take away our glorious Heritage. Wake up! Stop applications for a convention for a BBA from being passed in your State. If your State has already passed such an application, urge your State legislators to rescind it.

Endnotes:

1 The constitutional powers of the national government were supposed to be exercised with the proceeds of excise taxes & impost tariffs, with any shortfall being made up by an apportioned assessment on the States based on population.

2 The powers of State governments are also restricted by the federal Constitution: The list of prohibited powers at Art. I, §10, and by those few powers delegated exclusively to the national government.

3 HERE is the proof of the original intent of the interstate commerce clause.

4 The 13th, 14th, 15th, 16th, 18th, 19th, 24th, and 26th Amendments increased the powers and spending of the federal government by expanding federal powers over the States and The People. It was necessary to amend the Constitution to remedy the defect of slavery and to extend citizenship to freed slaves; but there was a better way than the 13th -15th Amendments.

5 HERE is a helpful site for locating early Acts of Congress. Once you have the title and date of an Act, you can find the official source at the Library of Congress: e.g., THIS provides what one needs to find the official edition HERE.

6 Compact for America’s pretended BBA is actually a tricky device for imposing a national sales tax or value added tax on the American People – on top of the income tax – and does nothing to limit federal spending. Yet deluded State Legislators are now proposing it in Michigan as SB 306. You can find a short and simple section by section analysis of Compact for America’s BBA HERE.

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June 24, 2015 Posted by | Balanced Budget Amendment, enumerated powers, Enumerated Powers of Congress | , , | 29 Comments

Publius Huldah & COS spokesperson debate Art. V convention

To my Friends in Tennessee: Do come! I would love to see you again or meet you.

Date:  Monday June 22, 2015 in Lebanon, Tennessee  at 7:00 p.m. Central Time
Host: Wilson County Tea Party
Location: The Schoolhouse, Building G, at the Ward Ag Center, 945 East Baddour Parkway, Lebanon, TN.

See Face Book page HERE

Wilson County Tea Party Website is HERE

Come and see why COS doesn’t want you to hear me speak or read my papers! 

To COS operatives & groupies: If you come and snip at me, I will show you how a Cold War Warrior (and womanly woman) with brains, knowledge, moral character, and a quick wit, fights.

 

June 18, 2015 Posted by | Uncategorized | 5 Comments

PH’s Article V Convention & Nullification Event in North Carolina on May 26, 2015

To my Friends in North Carolina: Do come! I would love to meet you. And if you don’t want to eat lunch, don’t.

To COS operatives & groupies: If you come and snip at me, I will show you how a Cold War Warrior (and womanly woman) with brains, knowledge, moral character, and a quick wit, fights.

Click on the photo to make it bigger.

 

MAY-7

May 18, 2015 Posted by | Article V, Article V Convention, Nullification by States, Nullification of unconstitutional acts | , , , , , | 8 Comments

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 | , , , , , , , , , , , , , | 31 Comments

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