Publius-Huldah's Blog

Understanding the Constitution

Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place.

By Publius Huldah

Central to the silly arguments made by the “Convention of States Project” (COSP) is their claim that 200 years of Supreme Court opinions have increased the powers of the federal government (as well as legalized practices such as abortion); that all these opinions are “the Law of the Land”; and we need an Article V convention so we can get amendments to the Constitution which take away all these powers the Supreme Court gave the federal government.

But the text of Article V contradicts COSP’s claim. Article V shows that our Constitution can be amended only when three fourths of the States ratify proposed amendments. The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.

1. First Principles

Let’s analyze COSP’s silly argument. We begin by looking at First Principles:

♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. 1

♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.2

Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; 3 and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! 4

 

2. Supreme Court Opinions are not “the Law of the Land”

Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!

Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.

So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.

 

3. Organic & statutory law and the totally different “common law” precedent followed in courts

Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation.

Organic Law

Black’s Law Dictionary defines “organic law” as

“The fundamental law, or constitution, of a state or nation, written or unwritten; 5 that law or system of laws or principles which defines and establishes the organization of its government.”

The organic laws of the United States are

  • The Declaration of Independence – 1776
  • Articles of Confederation – 1777
  • Ordinance of 1787: The Northwest Territorial Government
  • Constitution of the United States – 1787

The Articles of Confederation was our first Constitution. It was replaced by our Constitution of 1787 when it was ratified June 21, 1788. The Northwest Ordinance was superseded by the transformation of the area covered by the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].

Do you see how absurd is the claim that the Supreme Court, a mere “creature” of the Constitution of 1787, has the power to change the Organic Law of the United States?

Statute Law

Black’s Law Dictionary defines “statute law” as the

“Body of written laws that have been adopted by the legislative body.”

As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. I, §1). Acts of Congress qualify as part of the “supreme Law of the Land” only when they are made pursuant to Authority granted to Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress are not authorized by the Constitution, they are mere usurpations and must be treated as such.6

Common Law

The “common law” applied in courts in the English-speaking countries came from the Bible.7 The Bible has much to say about our relations with each other: don’t murder people, don’t maim them, don’t steal, don’t bear false witness, don’t tell lies about people, don’t be negligent, don’t cheat or defraud people, and such. The Bible provides for Judges to decide disputes between people and empowers Judges to require the person who has violated these precepts to pay restitution to the person whom he harmed. So, e.g., the Biblical prohibitions against bearing false witness and slandering people became our modern day concepts of slander, libel, and defamation. These principles were applied in the English courts from time immemorial, and are applied in American Courts. Modern day American attorneys litigate these common law concepts all the time. So if I am representing a client in an action for say, fraud, I look at the previous court opinions in the jurisdiction on fraud, and see how the courts in that jurisdiction have defined fraud – i.e., I look for “precedents” – the courts’ previous opinions on the subject – and I expect the Judge on my case to obey that precedent. 8

THIS is the “common law”. It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts. 9 As precedent for judges to follow, it is never “the law of the land”!

So, keep these three categories – organic, statutory, and common law – separate, and do not confuse court precedent with the “Law of the Land”. The latter is restricted to the Organic Law, and statutes and treaties authorized by the Organic Law.

Now let’s look at the constitutional jurisdiction of the federal courts.

 

4. What kinds of cases do federal courts have constitutional authority to hear?

The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. 10

The first category is cases “arising under this Constitution”. In Federalist No. 80 (2nd para), Hamilton shows these cases concern “provisions expressly contained” in the Constitution. He then points to the restrictions on the authority of the State Legislatures [listed at Art. I, §10], and shows that if a State exercises any of those prohibited powers, and the federal government sues the State, the federal courts would have authority to hear the case (3rd & 13th paras).

So if a State enters into a Treaty, or grants Letters of Marque & Reprisal, or issues paper money, or does any of the other things prohibited by Art. I, §10, the controversy would “arise under the Constitution” and the federal courts have constitutional authority to hear the case.

Likewise, if a State passed a law which violated the Constitution – say one requiring candidates in their State for US Senate to be 40 years of age – instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts have constitutional authority to hear the case.

So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it!! 11

Now let’s look at one way the Supreme Court butchered our Constitution in order to strike down State Laws they didn’t like.

 

5. How the Supreme Court violated the “arising under” clause to hear cases they have no constitutional authority to hear

Let’s use “abortion” to illustrate the usurpation. Obviously, “abortion” is not “expressly contained” in the Constitution. So abortion doesn’t “arise under” the Constitution; and the constitutionality of State Statutes prohibiting abortion doesn’t fit into any of the other nine categories of cases federal courts have authority to hear. Accordingly, federal courts have no judicial power over it. The Supreme Court had to butcher words in our Constitution in order to usurp power to legalize abortion. This is what they did:

The original intent of §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. That Act protected freed slaves from Southern Black Codes which denied them God-given rights. 12

Now look at §1 where it says, “nor shall any state deprive any person of life, liberty, or property, without due process of law;”

That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes 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.

But this is how the Supreme Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at the word, “liberty” in the due process clause and said, “liberty” means “privacy”, and “privacy” means “a woman can kill her unborn baby”. 13

And they claimed they had jurisdiction to overturn State Laws criminalizing abortion because the issue arises under the Constitution at §1 of the 14th Amendment! [ibid.]

The Supreme Court redefined words in Our Constitution to justify the result they wanted in the case before them.

The Supreme Court didn’t “enforce” the Constitution – they butchered it to fabricate a “constitutional right” to kill unborn babies.

And the lawyers said, “It’s the Law of the Land”; the People yawned; and the clergy said, “the Bible says we have to obey civil government – besides, we don’t want to lose our 501 (c) (3) tax exemption!”

 

6. What are the remedies when the Supreme Court violates the Constitution?

The opinions of which the convention lobby complains constitute violations of our Constitution. 14 The three remedies our Framers provided or advised for judicial violations of our Constitution are:

1. In Federalist No. 81 (8th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution! Impeachment is their “check” on the Judicial Branch.

2. In Federalist No. 78 (6th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution”, determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch.

3. On the Right & Duty of the States – who created the federal government when they ratified the Constitution – to smack down their “creature” when their “creature” violates the Constitutional Compact the States made with each other, see Nullification: The Original Right of Self-Defense.

Endnotes:

1Creature” is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8th Resolution).

2Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.

3 Madison’s Virginia Report of 1799-1800 (pp 190-196).

4 Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. Col. Mason said it is “the basis of free Government” that only the people are competent to ratify the new Constitution, and

“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”

Madison agreed that State Legislatures were incompetent to ratify the proposed Constitution – it would make essential inroads on the existing State Constitutions, and

“…it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence….”

It’s equally novel & dangerous to say that the Supreme Court may change the Constitution under which it holds its existence.

5 It is said England doesn’t have a written constitution.

6 Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:

“…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [capitals are Hamilton’s]

See also Federalist No. 33 (last 2 paras) and Federalist No. 78 (10th para).

7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.

8 Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. Instead, they involve the range of issues people fight about in State Courts: personal injury, breach of contract, business disputes, fighting over property, slander & libel, etc. In deciding these cases, federal judges are expected to follow the “common law” precedents.

9 In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them.

10 In Federalist No. 83 (8th para), Hamilton says:

“…the…authority of the federal …[courts]…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…”

11 James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. As to “cases arising under this Constitution”, he said:

“…That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies…”

12 This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment.

13 In Roe v. Wade (1973), the Supreme 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…”

14 Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious. But we elect to Congress people who don’t know our Constitution or The Federalist Papers; and they are unaware of their Duty – imposed by their Oath of office – to function as a “check” on the Judicial Branch by impeaching federal judges who violate our Constitution.

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November 25, 2018 Posted by | 14th Amendment, 3000 page constitution, Abortion, annotated constitution, Article V Convention, common law, Convention of States project, Creature of the Compact, due process clause, Enumerated Powers of Federal Courts, federal judges, Judicial Abuse, Law of the Land, Nullification, organic law, precedents, Publius Huldah, Roe v. Wade, statute law, The Judicial Branch | , , , , , , , , , , , , , , , , , , , , , | 11 Comments

What are the Enumerated Powers of the Federal Courts?

The Judicial Power of the Federal Courts.

By Publius Huldah.

1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III §2, U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:

a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States [1] [“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 the parties” jurisdiction];

c) Between two or more 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 Citizens thereof) & foreign States, Citizens or Subjects[3] [“diversity” jurisdiction].

These are the ONLY cases which federal courts have constitutional authority to hear! Alexander Hamilton wrote 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]

In Federalist No. 80, Hamilton commented on each of these itemized “proper objects” of judicial authority. But here, we will consider only cases “arising under the Constitution”, which concern “the execution of the provisions expressly contained in the articles of Union” (2nd para). [4]

2. Consider State laws criminalizing abortion or homosexual conduct.  Are these “proper objects” of the judicial power of the federal courts?  Do these laws fit within any of the categories of cases which federal courts are authorized to hear?  No, they don’t! Nothing in the Constitution forbids States from criminalizing abortion or homosexual conduct!  The federal courts have no “federal question jurisdiction”, no jurisdiction based on status of the parties, and no “diversity jurisdiction” to hear such cases!

But the federal courts have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” so that they can then pretend that the cases “arise under the Constitution”!

Thus, in Roe v. Wade (1973) http://supreme.justia.com/us/410/113/case.html seven judges on the U.S. 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 State laws making abortion a criminal offense! These seven judges just made up a “constitutional privacy right” which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003) http://supreme.justia.com/us/539/558/case.html six judges on the U.S. Supreme Court said a Texas Law criminalizing homosexual conduct was unconstitutional because it violated practitioners’

…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).

But nothing in our Constitution prohibits the States from making laws declaring abortion or homosexual conduct to be crimes!  Nothing in our Constitution grants “rights” to individuals to engage in these practices!

3. But federal judges used the 14th Amendment as a blank check to prevent the States from outlawing conduct which the 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! States criminalize child rape, but 5 judges on the Supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty & privacy right” in the 14th Amendment to have sex with children!  If these “liberty & privacy rights” mean that women can abort babies & homosexual conduct is fine; why can’t they also mean that adults can have sex with children?  Why can’t they mean that people have “liberty & privacy rights” to use crack cocaine & heroin?  What’s the limit?  There IS no limit! 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 §2 out the door!  He and his ideological allies recognize no limits on their power!  Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”!  And a State law prohibiting that act bites the dust.  And since federal judges also 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 bite the dust.  And that is how we got a handful of un-elected judges setting “policy” for everyone in the country.

4. Abortion, homosexual conduct, prostitution, child sex, drugs, etc. are issues for The People of the several States to decide (subject to any restrictions imposed by their respective State Constitutions).  Congress is not authorized to make laws on these subjects, and these are not listed as “rights” in the U.S. Constitution.

5. What does the due process clause of the 14th Amendment really mean?  Professor Raoul Berger’s meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment [5] proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship.  In Ch. 11[6], Berger discussed the 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…

The clause, “due process of law” is a term of art with a well-known & narrow meaning [7] 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 prison instead of in prison; and “property” meant the person’s possessions.

6. So! We see that the federal judges have redefined “Liberty”. To them, “liberty” is freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government. They have no problem with making us objects to be plundered & controlled by the federal government!  They have no problem with suppressing our religion & silencing our speech.  They have no problem with imposing their values & radical conception of “liberty” on us.

But Professor Berger proves that the framers of the 14th Amendment did not understand “Liberty” as freedom from moral restraints.  The purpose of the due process clause of the 14th Amendment was to protect freed slaves from being put to death, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial!

7. 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”.

8. Are there remedies for this judicial lawlessness?  YES! Congress should use its Impeachment Power to remove the usurping judges.  How many times have you heard they have “lifetime appointments”?  They don’t!  The only reason it ends up that way is because our representatives in Congress are ignorant & lack the Will to do the right thing.  Alexander Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force” in The Federalist No. 81, 9th 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. While this ought to remove all apprehension on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [some had said impeachments should be tried in the supreme court]. [italics added]

Folks, ignorance & misinformation will do us in if we don’t learn the Truth pretty soon. “Everybody” says judges have “lifetime appointments”, & we believe it.  Well, now YOU know that federal judges can be impeached, convicted & kicked off the bench for usurping power!  We hear that “The Rule of Law” requires us to go along with all court decisions.  That is a Lie!  If the decision is based on an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

9. 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, & predate the Constitution! We created the Constitution & the federal government!  Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define OUR Rights?

Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary & dangerous because they contain exceptions to powers which are not granted.  Thus, they afford a pretext to regulate those Rights (The Federalist No. 84, 10th Para).  Hamilton was a prophet as well as a genius in political philosophy.

Today, we have been conditioned to believe that the source of our “Rights” is the Constitution, as defined & “discovered”, from time to time, by unelected federal judges.  But D.C. v. Heller (2008) http://supreme.justia.com/us/554/07-290/ which upheld private ownership of guns, was a 5 to 4 decision!  One vote switched to the other side, and the Supreme Court will rule that we have no right to bear arms.

THIS is what happens when we substitute the Constitution for God as the Source of our Rights.  You must always insist that your Rights to Bear Arms – to defend yourself – are unalienable and come from God, not the Second Amendment!  Don’t forget that We had that Right before the Constitution was ratified.  The same principle applies to all of our Rights.  If, like the Declaration of Independence, we insist that they come from God and are unalienable, no human court or legislative body can take them away from us.

Publius/Huldah (June 22, 2009; revised July 16, 2010)


[1] Since ours is a Constitution of delegated & enumerated Powers, the U.S. must be authorized by the Constitution to act on a subject before any Treaty on that subject qualifies as part of the “supreme Law of the Land” (Art. VI, cl.2).

[2] Hamilton said this is the only instance in which the Constitution contemplates the federal courts hearing cases between citizens of the same State. The Federalist No. 80 (3rd Para from end).

[3] The 11th Amendment (ratified 1795) withdrew from the 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] Hamilton gave examples: 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]” (3rd Para).

[5] Prof. Berger retired in 1976 as Senior Fellow in American Legal History, Harvard University. His book is at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=28 It is fascinating!

[6] Here is the link to Ch. 11.  Read it!  You will then know more about “due process” than most federal judges! http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

[7] http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106887&layout=html&Itemid=27

June 22, 2009
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June 22, 2009 Posted by | 14th Amendment, Article III Courts, Article III, Sec. 2, Enumerated Powers of Federal Courts | 36 Comments

   

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