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 (2^nd 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 (3^rd & 13^th 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 14^th 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 14^th 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 (8^th 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 (6^th 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:

¹ “Creature” is the word our Founders used – e.g., Federalist No. 33 (5^th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8^th 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 (10^th 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 (8^th 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.

Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage

By Publius Huldah

In the January 2011 edition of the California Lawyer, Supreme Court Justice Antonin Scalia correctly says the 14^th Amendment to the U.S. Constitution does not apply to sex discrimination or sexual orientation cases. ¹

Activist federal judges, on the other hand, see the 14^th Amendment as a blank check to legalize whatever conduct they happen to approve of, such as abortion, homosexuality, & gay marriage.

But these activist judges are destroying federalism by bringing about a massive transfer of power from The People and the States to their own black-robed selves.

What Are the Enumerated Powers of the Federal Courts?

1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III, Sec. 2, cl. 1 enumerates the cases federal courts are permitted to hear. They may hear only cases:

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

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

c) Between several States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States;² or between a State (or its Citizens) & foreign States, Citizens or Subjects ³ [“diversity” jurisdiction].

These are the ONLY cases federal courts have permission to hear!  Alexander Hamilton says in Federalist No. 83 (8^th para):

“…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.” [emphasis added] ⁴

In Federalist No. 80, Hamilton comments on each of these enumerated objects of federal judicial authority.  But here, we will consider only cases “arising under the Constitution”, which, in the words of Hamilton [which I ask you to note most carefully],

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

Are Provisions About Abortion, Homosexuality, or Marriage “Expressly Contained” in the U.S. Constitution?

2.  Let us consider State Laws which made abortion or homosexual contacts to be crimes.  Let us also consider the recent case, Perry v. Schwarzenegger, where federal District Court Judge Vaughn Walker ruled that Proposition 8, an Amendment approved by the People of California to their State Constitution, violates the “due process” and “equal protection” clauses of the 14^th Amendment.  Proposition 8 says, “Only marriage between a man and a woman is valid or recognized in California”.

Are State Laws addressing abortion and homosexual contact proper objects of the judicial power of the federal courts?  Are amendments to State Constitutions defining “marriage” a proper object of the judicial power of the federal courts?

Above, I asked you to note most carefully Hamilton’s statement in Federalist No. 80 (2^nd para) that the judicial authority of federal courts extends to cases which “…concern the execution of the provisions expressly contained in the articles of Union”.

Is anything about abortion, homosexual contact, or marriage “expressly contained” in the U.S. Constitution?  No! Those words and concepts do not appear at all in the U.S. Constitution.

In the 3^rd para of Federalist No. 80,  Hamilton gives examples of cases “which concern the execution of the provisions expressly contained in the articles of Union”:  If a State violates the provisions of Art. I, Sec. 10 which prohibit States from imposing duties on imported articles, or from issuing paper money, the federal courts have jurisdiction to overrule such infractions as are “in manifest contravention of the articles of Union.”

Does Art. I, Sec.10 Prohibit STATES from Making Laws about Abortion, Homosexuality & Marriage?

3. Article I, Sec.10 enumerates the acts prohibited to the States.  Does anything in Art. I, Sec.10 prohibit States from criminalizing abortion or homosexual contact, or restricting marriage to one man and one woman?  No! No! and No! Consider also Hamilton’s words in Federalist No. 32 (last para):

“… the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor … is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.” [emphasis added]

So!  Since the U.S. Constitution contains no grant of power over abortion, homosexuality, or marriage to the federal government; and since Art. I, Sec. 10 does not prohibit the exercise of authority over those objects to the States, authority over them remains with the STATES or the People!  [See also the 10^th Amendment to the same effect.]

 

The Original Intent of the 14^th Amendment.

4.  Now, let us look at the 14^th Amendment, which activist federal judges have seized upon to circumvent the FACT that the U.S. Constitution shows that jurisdiction over abortion, homosexual contact, and marriage is reserved by the States or the People.

Section 1 of the 14^th Amendment (ratified 1868) says:

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

What does this mean?  Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves by means of  thousands of quotes from the Congressional Debates, that the purpose of Sec. 1 of  the 14^th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866 which protected the freed slaves from southern Black Codes which denied them their God given rights.

a) In Ch. 11 of his book [go to page 245 of this pdf ed], Prof. Berger shows the true meaning of the “due process” clause of the 14^th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law…

“Due process of law” is a term with a “precise technical import” going back to the Magna Charta.  It means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! “Life” meant “life” as opposed to being lynched; “liberty” meant being out of confinement instead of in confinement; & “property” meant the person’s possessions.

Professor Berger points out [and I ask you to note it most carefully] that “due process of law” refers only to trials – to judicial proceedings in courts of justice.  It most manifestly does NOT involve judicial power to override Acts of a Legislature!

b) In Ch.10 [go to page 222 of this pdf ed],  Prof. Berger shows the true meaning of the “equal protection” clause of the 14^th Amendment:

“…nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.”

Professor Berger proves that this equal protection was limited to the rights enumerated in The Civil Rights Act of 1866.  Section 1 of that Act says:

“Be it enacted by the Senate and House of Representatives of the United States of America … That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” [emphasis added]

This 1866 Act secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property. “Political rights” were excluded [Remember, the 14^th Amendment did not give freed slaves the right to vote]. But respecting the rights listed in the Act, States were now required to treat blacks the same as whites. THAT is what the “equal protection” clause in the 14^th Amendment means.

How Federal Judges have Perverted the 14^th Amendment.

5. Activist federal judges have committed grievous offenses against the U.S. Constitution with their perversions of the 14^th Amendment:

a) They have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” from the 14th Amendment so that they can then pretend that the cases “arise under the Constitution”, thereby claiming “federal question” jurisdiction!

Thus, in Roe v. Wade (1973), seven judges on the supreme Court said a

“…right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action…” (p. 153)

makes unconstitutional a State Law making abortion a criminal offense!  Those seven judges just made up a “constitutional privacy right” which they said was in the 14^th Amendment and which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003), six judges on the supreme Court said a Texas Law criminalizing homosexual contact was unconstitutional because it violated practitioners’

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

Those six judges just made up a “constitutional liberty right” to have homosexual contact!

In Perry v. Schwarzenegger, Judge Walker asserted that “Gender no longer forms an essential part of marriage” (Opinion p.113); and determined that the “due process” clause of the 14th Amendment contains a “fundamental right” to marry persons of the same sex (p.114, etc)!

He just made up a 14th Amendment “due process right” to marry persons of the same sex!

But abortion, homosexual contact, & marriage are not provisions expressly contained in the U.S. Constitution. So the federal courts have no “federal question” [or “status of the parties” or “diversity”] jurisdiction to hear these cases!

b) They have evaded the constitutional limits on their powers by redefining ⁵ the “due process” clause of the 14^th Amendment from its original meaning of ensuring that freed slaves got fair trials before they could be deprived of life, liberty or property, to seizing power to nullify State Laws they don’t like, and Amendments to State Constitutions they don’t like!

Thus, the supreme Court in Roe v. Wade and Lawrence v. Texas used the “due process” clause to seize power to overturn State Laws criminalizing abortion and homosexual contact; and Judge Walker used the “due process” clause to overturn the Will of the People of the State of California restricting marriage to one man and one woman.

Again, the “due process” clause refers only to judicial proceedings:  That freed slaves couldn’t be lynched, deprived of their freedom, or have their property taken away except pursuant to the judgment of their peers after a fair trial.

“Due process” never involved judicial power to override Acts of  the Legislature of a Sovereign State or Amendments to State Constitutions. The sole purpose of the “due process” clause was to ensure that freed slaves got FAIR TRIALS!

c) They have evaded the constitutional limits on their powers by redefining the “equal protection” clause of the 14^th Amendment from its original meaning of requiring States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property; to prohibiting the States from making any “distinctions” or “classifications” in their State Statutes or Constitutions the federal judges don’t like!

Thus, in Perry v. Schwarzenegger, Judge Walker asserted that Proposition 8 violates the “equal protection” clause of the 14th Amendment because it “disadvantages gays and lesbians without any rational justification” (Opinion p. 135).

6.  So!  Activist federal judges have been using the “due process” clause of the 14^th Amendment to override acts of State Legislatures which outlaw conduct federal judges want to legalize!  They simply make up a “constitutional right” to do those things.  Under their view, there is no limit to their powers! State Legislatures criminalize child rape, but 5 judges on the supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty and privacy right” in the 14^th Amendment to have sex with children!  If these “liberty and privacy rights” mean that women can abort babies, and  homosexual contact is lawful; why can’t they also mean that adults can have sex with children?  Why can’t they mean that people have “liberty and privacy rights” to commit any crime?  What’s the limit?  There IS no limit! Justice Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, said:

“…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” (p. 579)

Kennedy just tossed Art. III, Sec. 2 out the door!  He and his ideological allies recognize no limits on their judicial power!  Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”!  And a Law made by a State Legislature prohibiting that act bites the dust. And since supreme Court judges claim the right to “set policy” for all of these United States (and we have let them do it),  State laws throughout the land prohibiting that act also bite the dust.  And that is how we got a handful of  supreme Court judges setting “policy” for everyone in the country.

7. Abortion, homosexual contact, marriage, prostitution, child sex, drugs, etc. are issues reserved to the States or The People. The federal government is not granted power in the Constitution over these objects, and they are not prohibited by Art. I, Sec. 10, to the States.

The Supreme Court’s Radical Redefinition of “Liberty”

8.  The quote from Justice Kennedy shows that federal judges have redefined “Liberty”: They see “liberty” as freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government – to the contrary, they are determined to force their radical conception of “freedom” down our throats.

But Professor Berger proves that the framers of the 14^th Amendment did not understand “Liberty” as freedom from moral restraints. He proves that the purpose of the “due process” clause of the 14^th Amendment was to protect freed slaves from being lynched, confined, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial; and the purpose of the “equal protection” clause was to require States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property.

9.  Do you see how federal judges have usurped powers never granted to them and how they are destroying our Constitution?  If we do not insist that federal judges adhere to the “original intent” of the U.S. Constitution (and this original intent is readily ascertainable, Justice Scalia’s comment to the contrary notwithstanding), then the Rule of Law can not be reborn, and we will fall.

The Remedy for Judicial Lawlessness

10. Are there remedies for this judicial lawlessness?  YES! Congress must use its Impeachment Power to remove the usurping judges.  They serve during “good Behaviour” only (Art. III, Sec. 1) and do not have “lifetime appointments”.  Alexander Hamilton addressed judicial usurpations and the judiciary’s “total incapacity to support its usurpations by force” in Federalist No. 81, 8^th para:

“…the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department.  This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations…”

Now you know that federal judges can be impeached, convicted & removed from the bench for usurping power. The Rule of Law does not require us to go along with all court decisions.  Rather, if  the decision is an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

Our Rights do NOT Come from the Constitution!

11. Finally, a word about our Rights:  The Constitution is about the Powers which We the People delegated to the 3 branches of the federal government. It is NOT about our rights, which come from God, are unalienable, and predate & pre-exist the Constitution! We created the Constitution and the federal government!  Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define our Rights?

Endnotes:

¹   The California Lawyer seems to have removed its January 2011 article with the interview with Justice Scalia.  Isn’t that odd? But you can read excerpts from it at the Wall Street Journal:  http://blogs.wsj.com/law/2011/01/04/scalia-on-controverisal-stuff-i-dont-even-have-to-read-the-briefs/

State legislatures may make laws re abortion, homosexuality, marriage, etc. as permitted by their State Constitutions.  But as these are not among the enumerated legislative powers of Congress, Congress is not permitted to make laws on these subjects.  Neither are federal judges.

² Hamilton says this is the only instance where the Constitution contemplates the federal courts hearing cases between Citizens of the same State. (Federalist No. 80, 3^rd para from end).

³ The 11^th Amendment (ratified 1795) withdrew from federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.

⁴ What a mind!  All those Hamilton haters who parrot the lies about how Hamilton was a “statist”, etc, demonstrate a profound ignorance of The Federalist Papers & The U.S. Constitution.

⁵ When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V.  Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”. PH

January 10, 2011; revised Sept. 23, 2011; July 20, 2013; Sep. 11, 2015