Statement 11 + Footnotes
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Statement of Facts #11 of 12 from:
Reversing_Landmark_Abomination_Cases
Saving Babies from judges & voters
Saving Souls from ‘Scrupulous Neutrality’ about Religion
by proving in courts of law and in the Court of Public Opinion that:
The right to live of a baby and of a judge are equal The Bible & reality-challenged religions are NOT equal
A strategy of Life that relies on the Author of Life
for pro-life, pro-Bible Lawmakers, Leaders, Lawyers, and Laymen
by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 5 December 2023 (UTC)
Try to imagine how a judge, reviewing a prolife law with these Findings of Facts, would be able to dodge this evidence - in fact, see if you can find ANYONE who can refute these facts - as opposed to not caring about facts - that is, not caring about reality:
Statement of Fact #11 of 12:
Statement #11 of 12: The 14th Amendment gives federal courts no “due process” authority to invent rights not specified in the Constitution, like the “right” to murder, and gives Congress no authority to legalize violations of Constitutional Rights, like taking a baby’s right to Life. 43/326 words
The claims here seem to Americans today like well meaning ideas which could never work and which courts will never allow, but they are based on the plain words of the Constitution as explained by several SCOTUS dissents and several amicus briefs filed in Dobbs. (That is until I get to the Bible stuff. From then on it’s my own.) And they will not only “work”, they worked; they not only created America, they will save America. Whether or not courts will ever allow healing, it’s not up to courts.
The sole federal authority over state laws regarding the rights of their own citizens is through the 14th Amendment, Sections One and Five. [1] Contrary to SCOTUS rulings, the 14th Amendment explicitly provides:
* Congress authorized, not courts. Congress, not courts, determines the manner and scope of federal intervention in states whose laws don’t protect their citizens’ rights. [2] Congress is not limited to enforcing only those rights of which SCOTUS approves, nor only to the extent that SCOTUS approves, [3] nor only when state governments, not individuals, directly violate rights. [4]
* Federal courts aren’t permitted to stop either states or Congress from protecting enumerated rights (like Life), or to repeal federal laws for conflicting with unenumerated [not listed in the Constitution] “rights” (like the “right” to murder babies), or to intervene in states’ protection of rights beyond prosecuting violations of federal laws. [5]
* Nor can Congress stop states from protecting enumerated rights. Neither Congress nor federal courts may overturn a state law protecting the lives of unborn babies from surgical abortion, chemical abortion, or contraceptives.6 [6]
* The rights subject to federal enforcement are not those made up by SCOTUS allegedly based on the “Due Process” clause,7 [7] but those listed in the Constitution, referred to as “privileges and immunities”8 [8] (including, for unborn babies, the “privilege” of life and “immunity” from “cruel and unusual punishment” and execution “without due process of law”).9 [9]
* Enumerated Rights recognized before the Constitution existed are not excluded from Congressional intervention.10 [10]
* “Substantive Due Process” is the sophistry by which SCOTUS turned the Constitution’s Authority to Define Rights, and Congress’ 14th Amendment, Section 5 Authority to Enforce Rights, into its own authority to reclassify abominations as “rights”.11 [11] It is an illegal, unconstitutional, Freedom-crushing fraud from Hell fomenting a long line of Landmark Abomination Cases.12 [12]
(This argument for ending SCOTUS’ long line of Landmark Abomination Cases continues in Part Two of this book where its focus on SCOTUS-mandated murder of babies created in the Image of God is extended to SCOTUS’ censorship of God Himself.)
INDEX to all 12 Statements of Facts
Statement_1_+_Footnotes Courtrecognized, court-tested Finders of Facts unanimously establish that unborn babies are fully human
Statement_2_+_Footnotes Courts Accept the Fact-Finding Authority of Legislatures, Juries, Experts for the same good reasons their findings persuade the public.
Statement_3_+_Footnotes The FACT that Babies are Fully Human was never denied or ruled irrelevant by SCOTUS.
Statement_4_+_Footnotes Heartbeats & Brain Waves are Legally Recognized Evidence of Life.
Statement_5_+_Footnotes Legislatures should regulate abortion, as Dobbs held, just as legislatures regulate the prosecution of all other murders.
Statement_6_+_Footnotes The full humanity of a tiny physical body is hard for many to grasp. But what distinguishes us from animals isn’t physical, and has no known pre-conscious stage.
Statement_7_+_Footnotes Congress has Already Enacted a Personhood Law as Strong as a “Life Amendment”. The 14th Amendment already authorizes Congress to require all states to outlaw abortion.
Statement_8_+_Footnotes Roe, Dobbs, and the 14th Amendment agree: All Humans are “Persons”.
Statement_9_+_Footnotes When pregnancies develop into medical emergencies requiring separation of mother and child to save the mother, the child has an equal fundamental right to life and medical care.
Statement_10_+_Footnotes Tyranny over any class of humans by any other is prohibited by the Constitution, by the Declaration which gives the purpose of the Constitution, and which rests its own authority on the revelation of God in the Bible.
Statement_11_+_Footnotes The 14th Amendment gives courts no authority to invent rights not specified in the Constitution, like the right to murder, and gives legislatures no authority to legalize violations of Constitutional Rights.
Statement_12_+_Footnotes Judicial Interference with Constitutional Obligations is Impeachable.
FOOTNOTES
- ↑ More about “The sole federal authority over state laws...is through the 14th Amendment, Sections One and Five.”
From the Concurrence of Justice Clarence Thomas in McDonald v. Chicago, 561 U.S. 742 (2010) (https://law.justia.com/ cases/federal/us/561/McDonald_v_City_of _Chicago)
Representative John Bingham, the principal draftsman of §1, [section one of the 14th Amendment] delivered a speech on the floor of the House in February 1866 introducing his first draft of the provision. Bingham began by discussing Barron [an earlier precedent] and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide “an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person.” 39th Cong. Globe 1089–1090 (1866). Bingham emphasized that §1 was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It ‘hath that extent—no more.’ ” Id., at 1088.
Bingham’s speech was printed in pamphlet form and broadly distributed in 1866 under the title, “One Country, One Constitution, and One People,” and the subtitle, “In Support of the Proposed Amendment to Enforce the Bill of Rights.”[Footnote 10] Newspapers also reported his proposal, with the New York Times providing particularly extensive coverage, including a full reproduction of Bingham’s first draft of §1 and his remarks that a constitutional amendment to “enforc[e]” the “immortal bill of rights” was “absolutely essential to American nationality.” N. Y. Times, Feb. 27, 1866, p. 8. - ↑
More about “Congress, not courts, determines the manner and scope of federal intervention in states whose laws inadequately protect rights of their citizens.” Authority to Decide in what manner to make states protect Constitutional Rights of their citizens Belongs to Congress, Not Courts
According to the 14th Amendment, Section Five Here is Section One and Five of the 14th Amendment. Lawyers name the four clauses of Section One by their key phrases:
The “citizenship clause”, (which many assume limits citizenship to people who have been born, but that’s not what it says); The “privileges and immunities”, clause, (which identifies the rights which the Amendment protects: the rights listed in the Constitution according to the Amendment’s authors, although SCOTUS treats it as dead letters);
The “Due Process” clause, (which originally meant no one should have more hoops to jump through than “important” people, to defend themselves in court, but which SCOTUS turned into authority to make up whatever rights it likes); and
The “equal protection” clause, which is pretty self explanatory.
Then there is Section Five which clearly gives Congress, not courts, authority to enforce the Amendment.
Section 1, 14th Amendment: 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.
(Summary of sections 2-4: #2, as long as a state doesn’t let blacks vote, its black population won’t be counted towards its share of congressmen and presidential electors. #3, no participant in any insurrection can run for federal office. A few courts are, as of November 2023, reviewing whether this excludes President Trump; one judge dismissed on the ground that the list of offices in this section doesn’t mention president. #4, the U.S. will pay the debts of the states called, during the Civil War, the “North”, but not the debts of the “South”.)
Section 5: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The power to enforce the right of every person to live (which Section 5 of the 14th Amendment assigns to Congress) necessarily includes the power to acknowledge what everyone but judges knows: that every human is a person, wouldn’t you think? Professor Nathan Schluetter writes, in his written debate with Judge Bork published in First Things:
“Congress is clearly given the power in Section Five of the Fourteenth Amendment to remedy both hostile state action and state failure to secure the constitutionally protected rights of persons. The unborn person reading [the fact that babies of people are people] would make it constitutionally incumbent upon states to secure the basic rights of all persons in their jurisdiction without discrimination, and would enable Congress to pass remedial legislation protecting those same rights in states that fail to do so. ... We cannot afford to feign skepticism (pretend not to know) about the personhood of unborn children any more than an earlier age could afford to feign skepticism about the personhood of African-Americans.” www.firstthings.com/article/2003/01/ constitutional-persons-an-exchange-on-abortion
Remediation v. Passing ALL Laws One reason given for denying that Section 5 gives Congress power to enforce the 14th Amendment is the silly idea that Congress would then have to pass ALL the state laws related to “equal protection of the laws” for their respective citizens, not just occasional laws to “remediate” discrimination as it turns up. This excuse doesn’t consider the possibility of Congress passing only “remediation” laws. In fact, virtually every law ever written by a human likely began as a “remediation” law. That is, it was not drafted until someone got hurt, and people decided that offense ought to be discouraged from being repeated.
“Remediation” is what courts do now, having usurped Congress’ power to do so. If it is possible for courts, why not Congress? Congress is able to process a volume of issues far better than SCOTUS: it processes between 10,000 and 20,000 bills a year and enacts maybe 1,000 of them (https://www.govtrack.us/congress/bills/statistics) while SCOTUS receives 8,000 appeals a year and only considers about 80 of them. https://www.supremecourt.gov/about/faq_general.aspx
Courts do not “make every law” defining and enforcing fundamental rights. They are “only” a double check, stepping in when a violation of rights seems to them egregious. That seems to be the role given by Section Five to Congress.
But not given to courts. Congress, in authoring the 14th Amendment, did not give that ultimate power over states to federal courts because an evil SCOTUS precedent was most of the reason the 14th Amendment had to be created, and even that couldn’t happen until after a war which cost 750,000 lives. www.history.com/news/american-civil-war-deaths Congress had learned not to trust courts with rights. Courts were on the side of squashing fundamental rights. That is, in the view of the Republican party, though not in the view of the Democratic party which understood only the fundamental rights of masters to own slaves.
The same political party which in 1857 found courts their enemy in the protection of the fundamental right to liberty for blacks, today finds many courts their enemy in the protection of the fundamental right to live for babies, while the same political party which thought owning slaves was a virtue then, thinks murdering babies is a virtue today. A century and a half later, courts still prove the inferior partner in the protection of fundamental rights, leaving us no reason to accept the continuing emasculation America has suffered of Section 5.
Maybe it is because the less accountable to voters that authorities become, the farther they can sink in sin without anyone able to stop them. Voters whose hearts are not closed to the cries of 65 million slaughtered need to hold courts accountable – a few ways are suggested in Statement #12 – and restore the balance of power that is explicit in Section 5 of the 14th Amendment.
Courts tell you they are the superior partner in protecting rights because they are immune to the shifting priorities of the public. Insulated from populist pressures they are free to focus on the Constitution.
That would be fine if they were willing to follow the Constitution. But they make themselves immune to its pressures also. Section 5 gave enforcement authority to Congress, not courts, after what courts did to slaves, before anyone could foresee what they are still doing to babies.
The 14th Amendment expanded the power of courts, courts tell us, to overturn state laws which violate “fundamental rights”. It made slave-loving southern state legislatures accountable to courts, courts tell us. Well,
1. Congress helped blacks under attack after the Civil War; courts helped their attackers. Congress struggled to end the terror from white Democrat Ku Klux Klan mobs after the Civil War ended in 1865. The reason the mobs rode at night wearing white sheets was to evade prosecution under Congress’ 1866 Civil Rights Act and 13th Amendment, and 1868 14th Amendment, enforced by federal troops. It was the Supreme Court in 1876 which undid all that protection by acquitting a Democrat KKK which slaughtered between 50 and 140 black Republicans defending a courthouse, some of whom they killed by burning down the courthouse into which they had fled.
2. SCOTUS still uses its power over states, that it never had, to stop states from protecting the constitutional rights of their citizens, in a long line of Landmark Abomination Cases.
3. “Fundamental rights” isn’t even a constitutional concept! The phrase “constitutional rights” should mean the rights – the “privileges and immunities” – listed (“enumerated”) in the Constitution, but what SCOTUS’ list of what it calls “fundamental rights” is far from the rights listed in the Constitution, and often is at war with genuine constitutional rights. Like the “fundamental right” to murder your own baby, or for men to marry men!
4. SCOTUS has zero power over states, through the extremely plain words of Section 5 of the 14th Amendment, except to document states’ violations of federal laws.
Did the Amendment’s framers really fail to address what to do when it is courts which violate fundamental rights? Had the framers in 1868 forgotten so soon what the Supreme Court did in 1857 which yanked the country towards Civil War? (Dred Scott v. Sandford classified black human beings as “property”, so that a slave owner who took his slave with him to a “free state” in which slavery was illegal did not thereby forfeit his “property”!) Did the framers leave no remedy for babies today, who still suffer under the 1973 decision responsible for 60 million murders because Dobbs v. Jackson still dodged the fact that babies are people, which makes killing them legally recognizable as murder, which voters don’t get to legalize?
The Amendment solves that evil too. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” And what a simple matter for Congress to restrain courts to their Constitutional authority, by simply following the Constitution: ...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (Article III, Section 2.)
All Congress has to do is restate Section 5 of the 14th Amendment, and maybe add, “Seriously. Can you read? You were never given authority to stop states from protecting the constitutional rights of their citizens. Nor has your misuse of this authority you never had earned it for you. Stop it! Stop making up ‘rights’ from Hell that drag our whole culture down! This Amendment creates NO federal authority to stop states from protecting Constitutional rights. It gives US, not YOU, authority to stop states from trampling Constitutional rights. Your role is solely to document violations of laws WE pass, and only in that sense to authorize enforcement. Keep this up, and we will have to take you to our court.” (Impeachment.)
How opposite that is to the powers which the Supreme Court has assumed, to even overturn the laws of Congress which the Court imagines violate “fundamental” rights! The 14th Amendment gives jurisdiction over state legislatures to Congress, not courts. Courts are made subject to Congress by the Amendment
And yet courts assume Congress is made subject to courts! And not just to the Supreme Court but to any sympathetic district judge that some New Made-Up Rights advocate can locate. Look, I’m really sorry if I am repeating myself too much. I’m not getting any younger and I just need to vent.
But what is the practical meaning of authorizing Congress, not courts, to enforce fundamental rights? Obviously Congress can’t enforce anything without courts. All legislatures can do is pass laws with penalties that apply to designated actions, but only courts can charge particular individuals, businesses, corporations, or states with violating those laws; only courts can apply penalties to people. (In fact the Constitution explicitly prohibits Congress from passing judgment on specific individuals or groups. “Bills of Attainder”, is what the U.S. Constitution calls such actions.) Of course courts don’t physically enforce either; courts document violations, which then directs police, marshals, etc. to physically act against crime.
Legal practicality requires both Congress and courts, working together in their respective roles, to enforce the “equal protection of the laws” vision of the 14th Amendment. Congress, alone, decides what to enforce, anywhere and everywhere in the nation. Courts, alone, decide if an individual or group has violated the law. Courts need to stop usurping both roles. The areas of dispute between courts and legislatures are (1) what rights are true protectable rights?
(2) how should rights be balanced when certain rights of some infringe on certain other rights of others? (Like your right to murder your baby, which infringes on the right of your baby to not be murdered.) and, to the shame of our nation that this can be in dispute among otherwise civilized people,
(3) who is fully human and thus the recipient of any rights at all?
Courts have no right, no authority, to even enter this dispute. Congress is far better equipped to fine-tune any balancing of competing interests, by its ability to enact many pages of regulations, and to act within a year, and within a week in case of emergency and broad consensus, to address changes in the facts. And to settle a thousand issues a year.
That compares with the several years taken by courts to process an issue and the limit of about 80 cases a year for which SCOTUS has the time. Plus, Congress is bright enough to know (1) babies of people are people, and (2) that matters.
The power to enforce rights subsumes the power to define the scope of protection. Section 5 gives Congress, alone, that power. Congress is also authorized by the original Constitution to pass laws defining offenses and requiring courts to apply and process them, so actually it is Congress alone which would be authorized by the 14th Amendment to rule that the humanity of babies is in doubt, whether men have a constitutional right to marry each other in states that rule otherwise, whether boys compete with girls in athletic events so long as they wear a bra, etc. etc. Except that Congress has no such authority either, since protectable rights are only those listed in the Constitution, and our Founders left out the one about a dress on a boy making him a girl instead of just making him ugly.
Was this a wise solution the Amendment’s framers gave us? Has SCOTUS been wiser to disregard it, and have the rest of us been wiser to let SCOTUS get away with it? If Congress is given the last word on our rights, will that be less hazardous to human rights than nine unelected judges deciding for us?
Congress is the branch of government most accountable to the people and consisting of a “Multitude of Counsellors” Proverbs 15:22. When fundamental human rights are threatened, the people in danger of losing them should not be denied a voice in their disposition. A later footnote presents some history of how and when and how often SCOTUS usurped Congress’ constitution-authorized authority to enforce rights. “How SCOTUS morphed the Constitution’s end of racial tyranny into its own tool of judicial tyranny in only five years.” This history largely relies on the dissents and concurrences of Justice Clarence Thomas. - ↑ More about “Congress is not limited to enforcing only those rights of which SCOTUS approves, and only to the extent that SCOTUS approves.”
Ripping Enumerated Rights
from 14th Amendment Protection
(“Enumerated” means specifically listed in the U.S. Constitution, mostly in the first Eight Amendments.)
Chemerinsky lists a second way SCOTUS has emasculated Section 5:
“In City of Boerne v. Flores (1997), the Court ruled that Section Five does not empower Congress to create new rights or expand the scope of rights; rather Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court....This significantly and unjustifiably limits congressional power. Applying this test, courts have declared unconstitutional federal laws expanding protection for religious freedom, making state governments liable for age and disability discrimination in employment, and allowing state governments to be sued for patent infringement.”
An official summary of the holding of Slaughterhouse Cases (1873), which McDonald (2010) says is still SCOTUS’ standard:
“The privileges and immunities of citizens of the United States [clause #2 of the 14th Amendment] are those that arise out of the nature and essential character of the national government, [as opposed to rights which duplicate what states are supposed to protect! And rights which did not “arise” from the Constitution but existed before it!] the provisions of the Constitution, [except for the first eight Amendments, since they duplicate what states are supposed to protect!] or federal laws and treaties made in pursuance thereof.”
The effect of Slaughterhouse Cases was to neutralize the reach over states of the rights listed (“enumerated”) in the Constitution, mostly in the first Eight Amendments, which was described in the 14th Amendment as “privileges and immunities” according to the highly publicized understanding of its authors and of the public.
As Justice Thomas explained in his dissent in Dobbs v. Jackson, that left lawyers after that trying to squeeze protection of rights out of the Due Process clause which had no definitions beyond what the justices made up. That is the system still today.
For the numerous readers not ready to believe SCOTUS would this transparently and this thoroughly rewrite the 14th Amendment, we need a 2nd or 3rd witness, per Deuteronomy 17:6, 19:15, Matthew 18:16, 2 Corinthians 13:1, 1 Timothy 5:19, Hebrews 10:28.
I have characterized Clarence Thomas’ analysis above; below, I reprint his quotes. For now, Justia.com acknowledges this transfer from the second clause (“privileges and immunities”) to the third (“due process”) in its official summary of Slaughterhouse Cases:
“(The main holding of this case addressed the Privileges or Immunities Clause of the Fourteenth Amendment, rather than the Due Process Clause. However, it is significant for due process doctrine because it made the Due Process Clause the foundation for most Fourteenth Amendment claims involving fundamental rights. This function otherwise might have been served by the Privileges or Immunities Clause.)” www.supreme.justia.com/cases-by-topic/due-process
A 3rd Witnesses is Findlaw.com, a service for lawyers. It documents the fact that SCOTUS refused to protect any rights which the state was supposed to protect but failed to protect, even though the whole purpose of the 14th Amendment was to hold states accountable when they fail to protect the rights of their own citizens. Findlaw says “the Court construed the [privileges and immunities] clause to protect only those rights that pertain to U.S. citizenship, not those granted by state citizenship.” (https://supreme.findlaw.com/supreme-court-insights/the-slaughterhouse-cases--decision-summary-and-impact.html)
14th Amendment Logic: When a state tramples God-given rights, including rights described in the U.S. Constitution – especially in its first eight Amendments, Congress can pass laws against those violations, which can be enforced by U.S. marshals if not national troops, after courts establish guilt.
Slaughterhouse Cases Logic: When states trample ancient God-given rights, the 14th Amendment doesn’t intervene. The only rights the 14th Amendment was designed to protect are rights which were originally created by the national government – like the right to dock your ship in another state’s harbor – which states have no jurisdiction to enforce anyway.
Concluding its article about the Slaughterhouse Cases, Findlaw said “The privileges or immunities clause of the 14th amendment looked to be a dead letter entirely until recently. Justice Clarence Thomas, a George H. W. Bush appointee, wrote a concurring opinion in the landmark case, Dobbs v. Jackson Women's Health Organization (2022)....”
Indeed he did! Highlights from that concurrence, from his dissents in other cases which he named in Dobbs, and from other writers, including amici briefs filed in Dobbs, fill up footnotes which I have titled, ‘Substantive Due Process’: how SCOTUS turned the Constitution’s Authority to Define Rights, and Congress’ 14th Amendment Authority to Enforce Rights, into its own authority to reclassify abominations as ‘rights’ ”.Or, “How SCOTUS morphed the Constitution’s end of racial tyranny into its own tool of judicial tyranny in only five years
Findlaw.com documents how SCOTUS’ perversion of rights turned the 14th Amendment, which was created to protect Blacks, into a weapon protecting the Ku Klux Klan against Blacks: “the Court’s narrow reading [legalistically hostile interpretation] of the privileges or immunities clause opened the door for states to curtail individual rights through their police powers. This paved the way for Jim Crow laws in the post-Reconstruction South.” [“Jim Crow” was a pejorative term like “nigger”. “Jim Crow Laws” enforced segregation. They were not overturned until 1965.]
Except that as the Cruikshank history, next, shows, “states” were trying to protect the rights of blacks to live in safety and to have a voice in government, and were not walking through any SCOTUS-opened “door for states to curtail individual rights”, as Findlaw.com alleges.
That is, if we define “states” as governments established by the majority of voting citizens.
Southern Democrats had a different definition of “states”, perhaps shared by Findlaw.com: the former white slaveholders, who counted themselves as still in the majority by not counting blacks as citizens as the 14th Amendment does.
At first, black Republicans, the majority of voters, controlled “state government” as most of us define the phrase today with their ballots, while white Democrats, the voting minority, ruled by their bullets. After enough bullets, Democrats were able to stop most blacks from voting again, which made them the “voting majority”, though through continuing violence, night raids, and lynchings of “uppity niggers”.
These quotes from Findlaw, several Amici, and other authorities are way too antiseptic to me. Way too “respectable”, “scholarly”, “morally neutral”, and “nice”.
Findlaw’s phrase “curtail individual rights” vastly understates “night terror raids of whippings and lynchings”.
“Police powers” is a way too generous description of “mobs of unelected, anonymous terrorists”.
“The court’s narrow reading” is a far too legal-sounding description of “turning an unalienable, God-given right from Exodus 12:49 et al into an instrument of terror”.
Can we never say “SCOTUS’ usurped power over legislatures is evil”? Can we never talk about the “Pharisees” of our day as Jesus talked about the Pharisees of His? Must we call Evil “good”? Or worse yet, “scholarly”? Here is Jesus’ example of how to talk about evil:
Matthew 23:13 But woe unto you, scribes and Pharisees, hypocrites! for ye shut up the kingdom of heaven against men: for ye neither go in yourselves, neither suffer ye them that are entering to go in.
(Today: banning prayer, Bibles, 10 Commandments in schools and governments.)
Matthew 23:14 Woe unto you, scribes and Pharisees, hypocrites! for ye devour widows' houses, and for a pretence make long prayer: therefore ye shall receive the greater damnation.
(Today: calling “neutrality” about the humanity of babies still being slaughtered “scrupulous”, justified by scores of pages of legal sophistry, after a half century of teaching American culture to love death.)
Matthew 23:23 Woe unto you, scribes and Pharisees, hypocrites! for ye pay tithe of mint and anise and cummin, and have omitted the weightier matters of the law, judgment, mercy, and faith: these ought ye to have done, and not to leave the other undone. 24 Ye blind guides, which strain at a gnat, and swallow a camel.
(Today: you write 80 pages of analysis of the most obscure details of law and precedent, and you can’t tell if a baby of a human is a human whose murder no state can legalize!)
Matthew 23:25 Woe unto you, scribes and Pharisees, hypocrites! for ye make clean the outside of the cup and of the platter, but within they are full of extortion and excess. 26 Thou blind Pharisee, cleanse first that which is within the cup and platter, that the outside of them may be clean also. 27 Woe unto you, scribes and Pharisees, hypocrites! for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men's bones, and of all uncleanness. 28 Even so ye also outwardly appear righteous unto men, but within ye are full of hypocrisy and iniquity.
(Today: you wear your black robes, have everyone rise until you sit down, and convince everybody that one of you is smarter than a whole legislature – indeed you know more about the Constitution than the Constitution itself, and then you rip Bibles out of the hands of children, order that men may marry men, and make justice too expensive for most people to defend themselves against bogus charges.)
Matthew 23:29 Woe unto you, scribes and Pharisees, hypocrites! because ye build the tombs of the prophets, and garnish the sepulchres of the righteous, 30 And say, If we had been in the days of our fathers, we would not have been partakers with them in the blood of the prophets. 31 Wherefore ye be witnesses unto yourselves, that ye are the children of them which killed the prophets. 32 Fill ye up then the measure of your fathers. 33 Ye serpents, ye generation of vipers, how can ye escape the damnation of hell?
(Today: You say, “Had we sat on the Bench in 1857 we wouldn’t have voted to call a black man ‘property’. Or in 1876, we wouldn’t have acquitted the leader of the Democrat KKK mob that murdered 50-140 black Republicans and burned down the courthouse. At least you admit that you sit on the same Bench that has proven itself capable of such dark evil. But you outdo your predecessors, professing not to know a baby of a human is a human! After 50 years of unanimous fact finders trying to educate you! I don’t think you will like it in Heaven where you aren’t allowed to order tens of millions to be tortured to death.”)
Matthew 23:37 O Jerusalem, Jerusalem, thou that killest the prophets, and stonest them which are sent unto thee, how often would I have gathered thy children together, even as a hen gathereth her chickens under her wings, and ye would not! 38 Behold, your house is left unto you desolate. 39 For I say unto you, Ye shall not see me henceforth, till ye shall say, Blessed is he that cometh in the name of the Lord.”
(Today: Do we have any more time, before consequences fall, than did Jerusalem? How many more generations must pass before even Christians will cite the Bible in America’s public forums where voters decide whether to fashion our laws after the principles of Heaven or of Hell?)
Findlaw also explains how some of the rights of the first Eight Amendments, though all were at first ignored by SCOTUS, became rights SCOTUS decided to protect. (Later cases pointed out by Thomas say only SCOTUS, not Congress, can define and apply rights. In fact Congress is only allowed to protect those rights which SCOTUS has already protected, and only to the degree SCOTUS says!)
Findlaw:
“The Supreme Court spent much of the 20th century undoing the effect of the Slaughterhouse Cases through what became known as the incorporation doctrine. According to this doctrine, the due process clause of the Fourteenth Amendment ‘incorporates’ many of the rights granted by the Bill of Rights, making them applicable to the states.”
A 4th witness, a summary from www.britannica.com/event/Slaughterhouse-Cases helps explain and document the same facts:
SCOTUS, in Slaughterhouse Cases, “declared that the Fourteenth Amendment had “one pervading purpose”: protection of the newly emancipated blacks. The amendment did not, however, shift control over all civil rights from the states to the federal government. States still retained legal jurisdiction over their citizens, and federal protection of civil rights did not extend to the property rights of businessmen.
The Slaughterhouse Cases represented a temporary reversal in the trend toward centralization of power in the federal government. More importantly, in limiting the protection of the privileges and immunities clause, the court unwittingly weakened the power of the Fourteenth Amendment to protect the civil rights of blacks.
Dissenting justices held [correctly] that the Fourteenth Amendment protected all U.S. citizens from state violations of privileges and immunities and that state impairment of property rights was a violation of due process."Unwittingly"? Really?
A Friendlier Interpretation of Slaughterhouse
Maybe the problem was not the Slaughterhouse ruling itself but how it was perverted by SCOTUS in later cases. That is the thesis of Kevin Christopher Newsom in Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases published in the Yale Law Journal, Volume 109, page 643.(https://openyls.law.yale.edu/handle/ 20.500.13051/9237) While quoting numerous authorities saying the ruling “slaughtered” the Privileges and Immunities clause, driving protection of rights to the Due Process clause through “incorporation”, Newsom shows how the ruling actually does not nullify the Privileges and Immunities clause at all but supports “incorporation” of enumerated rights through it!
Here is where he quotes authorities saying his conclusion is the opposite of theirs:
See, e.g., Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J.. dissenting) (“The Slaughter-House Cases sapped the [Privileges or Immunities] Clause of any meaning.”); AMAR. supra note 12, at 176 ([Justice] “Miller's argument... seemed to resist, if not reject, total incorporation of the first eight amendments.”); ROBERT H. BORK, THE TEMPTING OF AMERICA 180 (1990) (“[T]he privileges and immunities clause[] has remained the cadaver that it was left by the Slaughter-House Cases.”); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 965 (Edward S. Corwin ed., 1953) (“[T]he privileges and immunities clause [was] ... rendered a ‘practical nullity’ by a single decision of the Supreme Court rendered within five years after its ratification.”); CURTIS, supra note 12, at 175 (“[B]y its construction of the Fourteenth Amendment [in Slaughter-House,] the Court effectively nullified the intent to apply the Bill of Rights to the states.”); 2 WALTER L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 423 (1907) (placing the discussion of the Slaughter-House Cases within a chapter entitled “The Undoing of Reconstruction”); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 205 (commenting that Justice Miller's “opinion in the Slaughter House Cases of 1873 ... set the pattern of narrow interpretation of the Fourteenth Amendment for a long time”); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 LOY. L.A. L. REV. 1143, 1144 (1992) (“Through judicial interpretation. the Court has rendered the Privileges or Immunities Clause a nullity.”); Curtis, supra note 14, at 76 (“[Slaughter-House] left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them.”); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, in THE BACON LECTURES ON THE CONSTITUTION OFTHE UNITED STATES: 1940-1950, at 425, 458 (1953) (“Justice Miller. for a bare majority of the Court, construed the Amendment narrowly .... The privileges and immunities clause was virtually scratched from the Constitution.”); Morton J. Horwitz. The Supreme Court, 1992 Term-Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 84 (1993) (“Justice Miller's opinion... virtually emptied the Privileges and Immunities Clause of content ....”); Kurland, supra note 12 at 408 (“The commencement of the judicial history of privileges or immunities of citizens of the United States lies in the Slaughter-House Cases, which provided both a beginning and an end.” (citation omitted)); Jeffrey Rosen, Translating the Privileges or Inmmunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (observing that the Slaughter-House Court “read the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution by construing it into irrelevancy”); J. Harvie Willdnson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43, 45 (1989) (“Hopes for a broad reading of the Privileges or Immunities Clause were dashed by the famous Slaughter-House Cases of 1873.” (citation omitted))
Here is how Newsom introduces what his analysis shows:
In contemporary constitutional discourse, Slaughter-House stands for one simple truth: that the Privileges or Immunities Clause is utterly incapable of performing any real work in the protection of individual rights against state interference, and that any argument premised on the Clause is therefore a constitutional non-starter. Novice students of constitutional law, upon encountering the Privileges 'or Immunities Clause for the first time, are told by their professors (pausing ever so briefly in the headlong rush toward the real meat of the Fourteenth Amendment, the Due Process and Equal Protection Clauses): “Privileges or Immunities? Don't worry about it. Justice Miller and the Slaughter-House Court decimated that provision way back in 1873.”
Likewise, recent law-school graduates preparing for the bar examination are instructed that “Privileges or Immunities Clause” will never be a correct answer and can be eliminated out of hand.
The fact is that no one reads the Privileges or Immunities Clause anymore. For that matter, no one reads the Slaughter-House Cases anymore. Today, “Slaughter�House” is really just shorthand-a codeword of sorts-for something much larger, namely, the complete evisceration of a significant part of Section 1 of the Fourteenth Amendment.
Despite its practical irrelevance, the Privileges or Immunities Clause is today enjoying something of a renaissance among constitutional scholars. During the past decade, a number of commentators-most notably, Akhil Amar, Michael Kent Curtis, and Richard Aynes-have scoured the historical materials surrounding the framing of the Fourteenth Amendment and have demonstrated that there was substantial consensus among members of the Thirty-Ninth Congress who crafted the Fourteenth Amendment that the Privileges or Immunities Clause (and not the Due Process Clause, as is commonly assumed today) would serve as the primary vehicle for protecting individual rights against state infringement.
More specifically, and more importantly for our purposes, these scholars conclude that the Framers of Section 1 intended the Privileges or Immunities Clause to “incorporate” most, if not all, of the protections of the federal Bill of Rights against state governments.
Potent as it may be, however, this argument from original intent only half answers objections to an incorporationist interpretation of the Privileges or Immunities Clause. There remains the thorny issue of Slaughter-House. This Article therefore seeks to pick up where Professors Amar, Curtis, and Aynes have left off, and to advance the incorporationist understanding of the Privileges or Immunities Clause beyond its most formidable nemesis: Justice Samuel Miller’s opinion for the Court in the infamous Slaughter-House Cases.
...In this Article, I argue, contrary to the almost crushing weight of conventional wisdom, that Justice Miller’s majority opinion in Slaughter-House did not foreclose the possibility of incorporating provisions of the Bill of Rights through the Privileges or Immunities Clause. Not once in the decision did the Court seriously suggest – much less hold – that the Privileges or Immunities Clause did not incorporate Bill of Rights freedoms, as the Fourteenth Amendment’s Framers had clearly said the Clause would. In fact, to the extent that the Court's opinion in Slaughter-House says anything about incorporation – and I, for one, believe that it does – it suggests that core Bill of Rights freedoms are among the “privileges [and] immunities of citizens of the United States” protected by the Fourteenth Amendment.
...I hope to show that, contrary to conventional wisdom, there is nothing in Miller’s opinion that negates a role for the Privileges or Immunities Clause in the incorporation of Bill of Rights freedoms against the states, and that, in fact, a more plausible reading of Miller’s opinion specifically preserves such a role for the Clause.
...my reading would permit courts to lay aside the historically confused and semantically untenable doctrine of “substantive due process,” a doctrine that has for years visited suspicion and disrepute on the judiciary’s attempt to protect even textually specified constitutional freedoms, such as those set out in the Bill of Rights, against state interference. In the end, I believe that by reconceiving the way we read SlaughterHouse, we might set incorporationism straight.
If indeed Slaughterhouse was not recognized then as the attack on 14th Amendment protection of constitutional rights that later courts have made it, that would explain something I have wondered about. If the authors of the 14th Amendment, only five years after it was enacted, saw it stripped of all meaning, wouldn’t their objections have been in the news? Although my research on such a point is pretty limited, I found nothing. There would be nothing to find, if Justice Miller’s ruling was not, at the time, seen as an attack on the 14th Amendment.
Only three years later came the Cruikshank ruling which more vigorously gutted the 14th Amendment, but by then Senator Bingham, “Father of the 14th Amendment” [1], was in Japan, serving as U.S. Ambassador from May 31, 1873, to July 2, 1885. The Colfax massacre was just before he sailed, Easter Sunday, 1873. Justice Bradley’s preliminary ruling was in 1874. Cruikshank was decided in 1876. Was Bingham just too far away for his reaction to matter?
Another thing I wondered about was how the Supreme Court could still rule so violently against blacks even after it had 4 justices appointed by President Lincoln and 3 by President and former Union general Grant?
That would make sense if Slaughterhouse then (1873) had not yet trashed the 14th Amendment. But what about Cruikshank (1876)?
By then, there were still four Lincoln appointees: Noah Haynes Swayne, (replaced John McLean), Samuel Freeman Miller (replaced Peter Vivian Daniel), David Davis (replaced John Archibald Campbell), and Stephen Johnson Field (a new seat established). Salmon Chase, a fifth Lincoln appointee, died May 7, 1873, right after the Colfax Massacre and before Justice Joseph Bradley issued his preliminary ruling acquitting the KKK terrorists. https://en.wikipedia.org/wiki/List_of_federal_ judges_appointed_by_Abraham_Lincoln
But Bradley was appointed by Grant, along with William Strong, Ward Hunt, and Morrison Waite.
That question remains unanswered, along with how Republican presidential appointments – the majority, kept abortion legal 50 years! - ↑ More about “...nor only when governments, not individuals, directly violate rights.”
A legal sophistry that SCOTUS has invoked from 1882 to the present to deny Congress any authority under Section 5 is that Section 5 doesn’t regulate private conduct – crimes by individuals – but only crimes of state and local government actions. See the Civil Rights Cases (1882), and United States v. Morrison (2000).
By that reasoning, slavery is still legal since slaves were “owned” mostly by individuals, not by governments!
It is hard to believe such silly reasoning could last a century and a half without being discredited, but Judge Robert Bork (1927-2012), debating Schluetter, didn’t think judges can “regulate private conduct” either, and he didn’t just report how SCOTUS rules – he justified it: he wrote “the due process clause limits governmental action and not the actions of private individuals. Abortions are killings by private persons.”
Erwin Chemerinsky, Dean of Berkeley Law School, disagrees with this principle invented by these SCOTUS precedents. (https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/703#congresss-broad-powers-under-section-5-of-the-fourteenth-amendment ) He alludes to the Civil Rights Act of 1964, passed by Congress, and points out that by this strange “states can legalize crimes by individuals” principle, no federal law against discrimination would be constitutional:
“violations of rights by private actors occur precisely because state and local governments have failed to prevent them. Congress, in preventing discrimination or violation of rights by private entities, is remedying the failures of state and local governments. This is exactly what the power under Section Five exists to accomplish.”
In other words, when a state law against murder exempts unborn babies from protection, isn’t that exemption in the law a “state action”? Isn’t a deliberate “crime of omission” still a crime?
https://thelawdictionary.org/crime-of-omission/: “an offense that is categorised by a person’s failing to perform an act that is required.” Chemerinsky:
Section Five of the Fourteenth Amendment should be interpreted broadly to authorize Congress to advance the protections of due process, equal protection, and the privileges and immunities of citizenship. The drafters of the Fourteenth Amendment intentionally chose not to leave the enforcement of its provisions solely to the courts, but instead gave Congress authority to enact laws to enforce its requirements.
The history of the Fourteenth Amendment shows that its framers intended Congress to have expansive power under this provision. In the first case to interpret this authority after the ratification of the Fourteenth Amendment, the Court spoke of Section Five giving to Congress the power to “secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion” and that any act “if not prohibited, is brought within the domain of congressional power.” Ex parte Virginia (1879).
According Congress such power is a desirable and necessary way of fulfilling the crucial goals of the Fourteenth Amendment: protecting people from infringement of their rights or a denial of equality. The Constitution is the floor, not the ceiling, of individual rights. Congress should have the ability to expand liberty and enhance equality, and Section Five should be interpreted to allow this.
Unfortunately, the Supreme Court repeatedly has adopted unduly narrow interpretations of Congress’s power under Section Five. First, the Court wrongly held that Section Five does not empower Congress to regulate private conduct, but only state and local government actions. This was initially the holding in The Civil Rights Cases (1882), and reaffirmed in United States v. Morrison (2000), which held that Section Five did not give Congress power to pass a law prohibiting private gender-motivated violence. The Court reasoned that because Section One of the Fourteenth Amendment, which prohibits states from denying citizens privileges and immunities of citizenship, due process, or equal protection of the laws, applies only to state and local governments, Congress’s power to enforce the Fourteenth Amendment is similarly limited.
But that conclusion does not follow. As Justice Stephen Breyer expressed in his dissent in Morrison, “But why can Congress not provide a remedy against private actors? Those private actors, of course, did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can enact remedial ‘[l]egislation ... [that] prohibits conduct which is not itself unconstitutional.’” Moreover, violations of rights by private actors occur precisely because state and local governments have failed to prevent them. Congress, in preventing discrimination or violation of rights by private entities, is remedying the failures of state and local governments. This is exactly what the power under Section Five exists to accomplish.
Second, the Court has unduly limited Congress’s power to protect liberty and advance equality under Section Five of the Fourteenth Amendment. In City of Boerne v. Flores (1997), the Court ruled that Section Five does not empower Congress to create new rights or expand the scope of rights; rather Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly tailored — “proportionate” and “congruent” — to the constitutional violation. This significantly and unjustifiably limits congressional power. Applying this test, courts have declared unconstitutional federal laws expanding protection for religious freedom, making state governments liable for age and disability discrimination in employment, and allowing state governments to be sued for patent infringement.
The better view of Congress’s Section Five power was articulated in Katzenbach v. Morgan (1966). The Court concluded that Congress has the power to expand, but not limit the rights that would otherwise be protected by section one of the Fourteenth Amendment. This approach accorded to Congress the power to expand the protections of liberty and equality, as well as to prevent and remedy violations of rights recognized by the courts.
You might as well try to train a dog to “meow” as to tell the Legal Information Institute at Cornell University that the 14th Amendment authorizes Congress to do anything when individuals murder babies, buy sex slaves, or read from the Bible in school. See their “State Action Doctrine”. https://www.law.cornell.edu/ constitution-conan/amendment-14/state-action-doctrine
The Fourteenth Amendment, by its terms, limits discrimination only by governmental entities, not by private parties. As the Court has noted, “the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Although state action requirements also apply to other provisions of the Constitution and to federal governmental actions, the doctrine is most often associated with the application of the Equal Protection Clause to the states.
“By its terms”, Cornell says. The footnote: “The amendment states that...‘nor shall any state’ engage in the proscribed conduct.” Perhaps overlooked is the rest of the sentence: “deny to any person within its jurisdiction the equal protection of the laws.” It doesn’t say “...equal protection from your state government....” Where state lawmakers either can’t equally protect a targeted group, or can’t figure out how, or doesn’t want to, and Congress has a better way, they can intervene, says the 14th Amendment. The Amendment was passed to enable Congress to control the white terrorist KKK Democrats, whose crimes were those of individuals, not state governments; Cruikshank came up with the “private crime” theory to stop Congress from passing Civil Rights laws and authorizing federal troops in the South to protect blacks. The Amendment has no “terms” blocking it from the protection for which it was created.
Cornell lists a number of cases in which I see no predictable pattern. Cruikshank “imposed a rather rigid state action standard” but as the Civil Rights movement of Martin Luther King developed, “the Court generally found the presence of state action”. Why the difference? They changed their mind, I guess is the “reason”.
“...in the late 1970s and 1980s, the Court began to reassert a strengthened state action doctrine.” No rationale given for change.
“...if racial segregation is not the result of state action in some aspect, then its existence is not subject to constitutional remedy. Distinguishing between the two situations has occasioned much controversy. ” Arbitrary. Unpredictable, which makes “constitutional law” a feeding trough for lawyers. States and individuals have to break their banks to hire lawyers just to find out what courts will decide this time, which shouldn’t take more than about five years and a few million dollars. And if the ruling shocks the whole nation no one can do anything about it.
Several of the made-up rules are about how SCOTUS decided, this time, to count the discrimination as “private action” or “state action”.
“...the ‘state action’ category is not limited to situations in which state law affirmatively authorizes discriminatory action...” “Beyond this are cases where a private individual discriminates, and the question is whether a state has encouraged the effort ...” All this to enforce a distinction the Amendment doesn’t even make.
Several examples are given of rulings made up for different situations, none of which, I can’t imagine, were predictable. How different to allow Section Five of the 14th Amendment to come back in force and allow Congress to make rules into which the whole nation has input, and which are published before anyone is taken into court for violating them, and which no one has to spend millions they don’t have just to find out what the law will turn out to be! - ↑ More about “Federal courts aren’t permitted to...repeal federal laws for conflicting with unenumerated...“rights”...or to intervene in states’ protection of rights beyond prosecuting violations of federal laws.” “Judicial Review” has no Authority There is widespread agreement that courts go too far in overturning laws. But hardly any agreement on how far back courts ought to be bridled. Actually maybe there is, among people who think about it, but hardly anyone thinks about it so it is hard to find. The Lonang Institute in its amicus in Dobbs explains that of course courts “state what the law is” and what the Constitution says, but the idea of courts having the final say over legislatures in what the Constitution says, with no equal authority in legislatures, is a recent invention, and a most ugly one. www.supremecourt.gov/DocketPDF/ 19/19-1392/ 185037/20210727131024868_19-1392%20tsac%20Lonang%20Institute.pdf The following is from their amicus in Dobbs: The high watermark of the Supreme Court misuse of judicial review came in Cooper v. Aaron, 358 U.S. 1 (1958). In its opinion, the court remarked that Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” So far, so good. In 1803, Chief Justice Marshall, speaking for a unanimous Court, calling the Constitution “the fundamental and paramount law of the nation,” declared in Marbury v. Madison, 1 Cranch 137 (1803) that “It is emphatically the province and duty of the judicial department to say what the law is.” This is a description of the legitimate power of judicial review found in Article III, Section 2. From this legitimate recognition of the power of judicial review, the Cooper v. Aaron Court stepped back to Eden. [The interesting and very readable amicus developed the story of the serpent persuading Eve to question the meaning of God’s clear words. See Statement #3, footnote #6.] The Court first expanded its own opinion in Marbury asserting that Marbury actually “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” 358 U.S. at 18 (emphasis added). Recall that Chief Justice Marshall said the judiciary has a duty to say what the law is. He said nothing, however, about the Court’s opinions as supreme. Cooper added the “supreme” element. In its ruling, the Court in Cooper made the egregious error of misconstruing the Supremacy Clause of Art VI that “This constitution and the laws of the United States which shall be made in pursuance thereof” shall be “the supreme law of the land.” The Court, without either textual or historical support, construed “the laws of the United States” to include judicial opinions of the Court, when clearly, historically and textually, it only referred to acts of Congress which became law when made in pursuance of the Constitution. In 1803, SCOTUS said courts may “state what the law is”. In 1958, SCOTUS added that what SCOTUS says is “supreme” over what Congress says, because the constitution says “this constitution and the laws [authorized by it] shall be “the supreme law of the land”, and apparently SCOTUS rulings are now “laws”, while laws aren’t. Further, the Constitution grants no “supreme” expository power to the Court. It is not found in Articles III or VI. It is not there. What is found in Article VI is that the Constitution, laws [passed by Congress] and treaties “shall be the supreme law of the land.” Nothing is said about Supreme Court opinions being supreme law, let alone being law at all. The Constitution extends no power to the Court to claim that even its legitimate constitutionally based opinions, are the sole and exclusive meaning of the Constitution itself. The judicial power to review cases arising under the constitution, laws and treaties is stated in Article III, section 2, but that power is not the power to rewrite the Constitution itself. It is not the power to authorize the court to sit as a perpetual constitutional convention. It is not the power for the court to write into the Constitution whatever it wants, or the power to strike from the Constitution whatever it does not want. Constitutional insertions and deletions are a power retained by the People. Here is what the actual constitution says: Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;-- between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. Notice the phrase “power shall extend to...cases”, which means “this is as far as judicial power goes: to cases.” Not to passing, or overturning, laws. The Lonang Institute in its amicus in Dobbs explains that when the Constitution says SCOTUS’ authority extends (only) to “cases” and “controversies”, that means the Court may issue orders binding only on the parties to the cases. That doesn’t mean a Court can turn a case involving a small number of litigants into a law binding on everyone in the nation. The power to hold parties in contempt supports this understanding. Court’s can’t hold the whole nation in contempt for speaking disrespectfully about the court! D. According to The Law Of Nature, Judicial Power Extends To Issuing Orders In Cases And Controversies, Not To Making Rules Of General Applicability. This exercise of judicial power is reflected in the difference between a “rule” and an “order.” A court cannot issue a rule under the law of nature, because the nature of any rule is that it is an action of general application. Rules apply not only to parties in a case, but to everyone. The court’s judgment on the other hand must be confined to an order for its contempt power to be exercised lawfully. Otherwise, a court could hold anyone in contempt for simply disagreeing with its opinion. This distinguishes judicial power from legislative power. Only the legislative power can make laws; the judiciary can merely apply pre-existing laws to the facts in a given case. Not only is the law of nature of judicial power responsive rather than initiative, and limited to giving orders to parties rather than rules to all persons, the law of nature of judicial power is restricted to judgment, not will. All the judge has is judgment to make known the statute or Constitution’s text. This distinguishes judicial power from executive power. It follows that if judges do not make law, which by definition is a “rule,” then judges cannot issue “rules,” and may only issue orders. A rule binds the people generally, and is by nature legislative, whereas an order binds only the person to whom it is directed. Thus, Article III extends the judicial power of the courts of the United States only to “cases” and “controversies.” If a judge could issue a rule which governed such disputes, the judicial power would not be limited to actual cases and controversies. “[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers....” - Abraham Lincoln, First Inaugural Address, March 4, 1861. This Court’s substantive due process jurisprudence is an example of rulemaking simply because it purports to add new text to the Constitution itself. For this reason, it is contrary to the law of nature of judicial power. The opinion in Roe v. Wade can also be examined to determine whether it was in the nature of an order or a rule. Remarkably, the Court did not issue an instruction to Texas declaring its statute unconstitutional and unenforceable. Rather, it specified a trimester formula was essentially a legislative rule purporting to bind all future statute governing abortion in every state. Yet only Texas was a party to the case. Hence, the Court’s opinion again lacked an essential element of the exercise of judicial power, that is, the issuance of an order, not a rule. “Judicial Review” was launched with a Fraud Marbury v. Madison 1 Cranch 137 (1803) deliberately misread a part of the 1789 Judiciary Act in a way that made it seem to conflict with the Constitution, in order to declare SCOTUS’ own exalted authority to overturn laws which it considers in conflict with the Constitution. Yet even that fraud was harmless compared with today’s overturning of laws which SCOTUS considers in conflict, not with anything in the Constitution, but in conflict with made-up “substantial due process rights” which SCOTUS imagines springing from a “due process clause” which has nothing to do with defining rights but only with due process. The fact that Marbury misread the 1789 Judiciary Act is clear from simply reading it. The fact that the Act does not conflict with the Constitution is clear from simply comparing it with the Constitution. The fact that the misreading was deliberate is portrayed very graphically in a 1977 dramatization of the case posted by C-span at www.c-span.org/ video/?310956-1/marbury-vs-madison# I say “graphically”, although not graphically enough for the narrator to have noticed the fraud. The narrator paints what SCOTUS did as the noblest verbiage in human history since Jesus’ Sermon on the Mount. The script makes the fraud very clear to anyone who reads the ruling and the Act which the ruling declares unconstitutional. But not clear at all to viewers who have read neither, nor, as I said, to the narrator. The case was decided on a technicality that no one then or now cared or cares about. What people cared about was that John Adams, our second President, after losing his election to Thomas Jefferson, conspired with the outgoing Congress to “pack the courts” with several new judgeships and to appoint members of their own party as judges, in order to mitigate their losses in the election and extend the influence of their party through Jefferson’s Democratic-Republican administration. After the Senate approved Adams’ appointments, Adams was up late his last night in office signing commissions. But 23 didn’t get delivered. Jefferson went ahead and delivered 12 of them, but the last 11, he refused. The case was about Mr Marbury, who wanted Secretary of State Madison to deliver his commission so he could be a judge. The whole incident smelled rotten – very unethical, but it was legal. Marbury asked the Supreme Court to issue a “Mandamus” - which tells an authority to do something it is required to do but which it is not doing – to Madison to deliver his commission. The Court agreed that Marbury was legally entitled to the commission, and Madison, was legally required to deliver it, and the Judiciary Act of 1789 had specifically given SCOTUS authority to issue a Mandamus “in cases warranted by the principles and usages of law”. But, SCOTUS ruled, the Court couldn’t issue the Mandamus because the Constitution said the Court could only hear appeals from lower courts; they didn’t have “original jurisdiction” to begin a legal action in this type of case. Although the 1789 Act gave them Mandamus authority “in cases warranted by...law”, this wasn’t such a case. Applying that authority in this case, which was not an appeal from a lower court, would be unconstitutional. Except that SCOTUS didn’t stop at saying the application requested by Marbury would have been unconstitutional. They deliberately misread the Act as giving them Mandamus authority even in an action begun by SCOTUS. The 1789 Judiciary Act had said: The Supreme Court shall...have power to issue...writs of mandamus, in cases warranted by the principles and usages of law, to...persons holding office, under the authority of the United States. Here is a selection from the script of the C-span dramatization. This scene is a fictional private, off-the-record conversation of the SCOTUS judges discussing how to rule. Many of their points indeed reflect their ruling, although the ruling never admits that they could have just as easily interpreted the Act in a way that did not conflict with the Constitution. 24:16 Chief Justice Marshall: The constitution says we have jurisdiction in cases such as this. Article 3, Section 2, but the case must come to us on appeal from a lower court... 24:44 Marbury v. Madison did not come to us on appeal, gentlemen. It originated in this court. “Perfect. We have no jurisdiction. The case is closed.” Marshall: “Not quite.” “Oh?” “Section 13 of the [1789] Judiciary Act is in conflict with the Constitution. I propose that we make the point.” “How so?” “By declaring it unconstitutional. Section 13 presumes to give us jurisdiction where the Constitution says plainly we don’t have it.” Patterson: “I disagree, Chief Justice. I disagree. Section 13 merely says we can issue a court order, quote, ‘in cases warranted by the principles and usages of the law. It does not specify the nature of the case. It does not say, ‘in cases which originate in this court’, nor does it say ‘in cases which come to this court on appeal’. Section 13 merely says, ‘in cases warranted by the principles and usages of the law’. So, Section 13 need not be construed as conflicting with the Constitution. It all depends on how we interpret it.” [Absolutely correct, except that “interpretation” is not the wrong, but “application”. To apply a provision where it is illegal to apply it is a fault not of the provision but of those applying it.] 26:05 Chief Justice Marshall: “Mr. Patterson, can Section 13 be interpreted as giving us jurisdiction in a case like this that originates in this court?” “Yes of course.” [No it can’t. That would violate the caveat in the provision, that it is applicable only “in cases warranted”. This is a lie of the script writers.] “Then it is in conflict with the Constitution.” “But we don’t have to interpret it that way.” “But we can. And I urge that we do so. That we find Section 13 unconstitutional and we so declare it. Gentlemen, I ask for your consent.” “Why is it not enough to say we have no jurisdiction?” “Why, plain as day, Mr. Patterson. It’s perfectly extraordinary. The [our very own] Declaration of Independence [from the other branches of government], Mr. Patterson. By declaring Section 13 unconstitional – an act passed by Congress and signed into law by the President, this Court will have staked its claim to the right to say, to the legislator and to the executive, what the Constitution means and what it means not! Mr. Patterson, we shall have stated emphatically that it is the province of the judiciary department to say what the law is.” Justice Washington: “What puzzles me, Mr. Marshall, is when we first decided to hear this case, on the basis of this Section 13, and when you first laid eyes on it, did you decide then that it was unconstitutional? Did it occur to you then that we might lose this case?” Chief Justice Marshall: “Sometimes our best opportunities come wrapped in our worst problems, Mr. Washington. It’s always been my belief that the only way to safeguard the Constitution was to put it in the hands of the Judiciary. Not in the hands of the legislature, not of the Executive. After all, the Constitution is either superior to the law, unchangeable by ordinary means, or it’s on the level of legislative acts. If we change, the executive is pleased to change. This be the case: if, say, the legislature were in a position to change the Constitution whenever it pleased, well, then the Constitution would be merely an absurd attempt to limit a power which, well, which by its very nature is unlimited. Certainly all who have framed and written constitutions contemplate them as forming the fundamental and paramount laws of the nation. And, consequently, the theory of every such government must be that an act of the Legislature, repugnant to the Constitution, is void.” 31:30 narration: “Chief Justice John Marshall...won the war to establish the Supreme Court as the final arbitrator of the meaning of the Constitution. ...he established the right of the Supreme Court of the United States to say what the Constitution means and what it means not, to the governments of the states and to the federal government as well. ...it affirmed the constitutional duty of the Supreme Court to decide if and when the political branches of the government exceeded their constitutional bounds.” To watch a C-span 33 minute dramatization of the case, see https://www.c-span.org/video/?310956-1/marbury-vs-madison# The dramatization has a major inconsisteny with the ruling: SCOTUS then did not say their interpretation of the Constitution was binding on Congress, or superior to that of Congress or the President. That didn’t come until much later. Although Thomas Jefferson quotes some 30 years later indicate SCOTUS was careening in that direction. The following footnote begins with a Clarence Thomas quote from Marbury v. Madison, saying “it cannot be presumed that any provision of the Constitution is to be without effect.” Here is the context of that quote: Attorneys argued that the Constitution doesn’t explicitly say Congress can’t give “original jurisdiction” to SCOTUS beyond what it does, but the Marbury ruling said: If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. That reasoning was faithful to the Constitution, which is far from today’s “judicial review” which overturns laws that conflict with “rights” invented by SCOTUS which conflict with actual constitutional rights, and which, as Justice Clarence Thomas points out, evade conflict of scandalous proportions by redefining provisions of the Constitution, like the “privileges and immunities” and “enforcement” clauses, out of existence.
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