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:
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. 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]
* The rights subject to federal enforcement are not those made up by SCOTUS allegedly based on the “Due Process” clause, [7] but those listed in the Constitution, referred to as “privileges and immunities” [8] (including, for unborn babies, the “privilege” of life and “immunity” from “cruel and unusual punishment” and execution “without due process of law”). [9]
* Enumerated Rights recognized before the Constitution existed are not excluded from Congressional intervention. [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] It is an illegal, unconstitutional, Freedom-crushing fraud from Hell fomenting a long line of Landmark Abomination Cases. [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. </blockquote>
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 the “interpretation” is not what was wrong, but the “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 inconsistency 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. - ↑ More about “Nor can Congress stop states from protecting enumerated rights.”
Congress most certainly can stop states from protecting babies from abortion, of course.
But Congress can’t stop states from protecting babies from murder.
What a difference it makes, to observe that the consensus of court-recognized fact finders that babies of people are people makes killing them legally recognizable as murder, which no state can be allowed to legalize.
Just before Dobbs v. Jackson was published in 2022, but after Justice Alito’s draft opinion was publicly leaked, a law professor acknowledged that if Alito’s published version...
“...declares that a fetus has a right to life, such a ruling could potentially trigger due process protections for fetuses.” ...the court may then give greater weight to a due process challenge to a law legalizing abortion rather than a due process justification for such a law, favoring the potential rights of the fetus over that of the pregnant person carrying the fetus.
“A law protecting abortion could be found unconstitutional on the grounds that the government is denying due process rights to the fetus. That’s the bigger danger, that the current case that’s pending [Dobbs] announces a right to life for the fetus and that once it’s a life, it has protections under the due process clause, because the court has deemed it a person.”
“That’s the biggest fear. Then the only way to get around the Supreme Court is to have a new Supreme Court or make a new constitutional amendment, but obviously that’s a very onerous process, and we can’t even get legislation through this congress.” - Libby Adler professor of law and women’s, gender, and sexuality studies, Northeastern University https://news.north eastern.edu/2022/06/01/law-legalizing-abortion-constitutional-challenges/
Adler needn’t have worried. Very few amici (140 Amicus Briefs were filed in Dobbs by prolife and prodeath organizations) asked SCOTUS to protect all baby people, but the official plaintiff, Missouri’s Attorney General told the Dobbs court “Mr. Stewart: “Justice Kavanaugh, you had it exactly right when you -- when you used the term scrupulously neutral. I think that’s a very good description of what we're asking for here. ...there are interests here on...both sides.... This is unique for the woman. It’s unique for the unborn child too whose life is at stake in all of these decisions.” (Oral arguments, December 1, 2021)
“Scrupulous” isn’t a word that goes with being “neutral” about whether to count these 60 million butchered babies as humans. "Scrupulous" is a synonym of "virtuous". Being “scrupulously neutral” about murder is not a virtue.
But at least baby killer lawyers agree with me, that were prolifers to make “babies are people, which makes killing them legally recognizable as murder” the reason no state can be allowed to legalize their murder, along with the consensus of fact finders that no one can refute, courts in every state would have to get out of the way of outlawing every form of baby killing.
But will that happen?
So long as prolifers avoid that central reason for outlawing infanticide, the 14th Amendment could actually be invoked to force states to legalize baby killing!
Congress could also attempt to justify such a law using the 14th Amendment of the Constitution. Section 5 of the amendment is the congressional Enforcement Clause, which allows the legislative body to enforce the prohibition on states from depriving people of life, liberty, or property without due process. This clause could potentially be used to back a law protecting pregnant people from anti-abortion laws passed by states. https://news.northeastern.edu/2022/06/01/law-legalizing-abortion-constitutional-challenges/
The other ground of Congress’ jurisdiction over baby killing discussed by the Northeastern U. lawyers and by Washington Post lawyers was the “Commerce Clause” of the Constitution. That was made the doorway to constitionality of the Civil Rights Act of 1964.
But “even the liberal justices noted the awkwardness of arguing over whether hamburger meat crossing state lines meant a restaurant such as Ollie’s BBQ in Alabama had to allow Black patrons to sit at the counter, or whether an Atlanta hotel near an interstate highway had to allow Black guests because its travelers moved between states. Still, the Supreme Court unanimously upheld the Civil Rights Act.” https://www.washingtonpost.com/politics/ 2022/05/04/roe-overturned-congress-abortion-law/
However, SCOTUS has stepped away from justifying every manner of Congressional intervention in state matters with the Commerce Clause. Thank God! Because the reason for the clause was to make the standards and dimensions of roads, and later railroads, telegraphs, and radios uniform from one state to another, both so operators only have to learn one set of rules instead of 50 and so users can still know how to travel and communicate after they cross a state border. The reason for the clause was never to be an excuse for Congress to meddle in all kinds of state business where uniformity is not an issue.
The Civil Rights Act of 1964 should have received its jurisdiction over state violations of “privileges and immunities”. The act bars “unequal application of voter registration requirements, racial segregation in schools and public accommodations, and employment discrimination” (according to Wikipedia).
Had SCOTUS not deplatformed the Privileges and Immunities clause, segregation perhaps could have been addressed through “the right of the people peaceably to assemble”. Employment discrimination could perhaps have been addressed through “nor be deprived of life, liberty, or property, without due process of law”. Job discrimination reduces liberty, and its lower wages robs workers of as much property as they earn. Unequal voting requirements violates “the right of the people...to petition the Government for a redress of grievances.”
If these examples seem at all a stretch, it must be acknowledged a miniscule stretch next to charging through the Commerce Clause!
The Washington Post article points out another reason baby killers should worry about trying to keep baby murder legal in every state:
With these negative Commerce Clause decisions and an even more conservative Supreme Court supermajority installed for the foreseeable future, it is likely that the same five justices who appear poised to overrule Roe v. Wade would find reason to strike down the Women’s Health Protection Act as exceeding Congress’s power.
If the Supreme Court rules that Congress has the power to protect abortion through legislation, Congress also would have the power to prohibit abortion through legislation. As Chief Justice John Marshall famously concluded in an 1824 Commerce Clause case, the power to regulate necessarily includes the power to prohibit.
Ultimately, any victory for abortion rights the Democrats might claim with the WHPA would be temporary, lasting only until Republicans regained control. https://washingtonpost.com/ politics/2022/05/04/roe-overturned-congress-abortion-law/
The actual WHPA passed by the House last year covers all bases: the Commerce clause AND Section 5 of the 14th Amendment AND the “necessary and proper” clause:
(25) Congress has the authority to enact this Act to protect abortion services pursuant to—
(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States;
(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and
(C) its powers under the necessary and proper clause of section 8 of Article I of the Constitution of the United States.
(26) Congress has used its authority in the past to protect access to abortion services and health care providers’ ability to provide abortion services. In the early 1990s, protests and blockades at health care facilities where abortion services were provided, and associated violence, increased dramatically and reached crisis level, requiring Congressional action. Congress passed the Freedom of Access to Clinic Entrances Act (Public Law 103–259; 108 Stat. 694) to address that situation and protect physical access to abortion services. https://www.congress.gov/ bill/117th-congress/house-bill/3755/text
However, should prolife lawyers be found who will make “babies are people, which makes killing them legally recognizable as murder” the reason no state can be allowed to legalize their murder, along with the consensus of fact finders that no one can refute, courts in every state will have to acknowledge that Congress has no authority to require states to legalize baby killing, because Congress has no authority to require states to violate constitutional rights.
Congress does have the authority, and indeed the commission, to require states to outlaw baby killing along with every other violation of the constitutional rights of human beings. But neither Congress nor courts have any authority from the Constitution to order states to permit mass murder. - ↑ More about “The rights subject to federal enforcement are not those made up by SCOTUS allegedly based on the ‘Due Process’ clause”
Justice Clarence Thomas in McDonald v City of Chicago (2010):
[The invention of “Incorporated” rights.] At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States.
[Not “fundamental” enough.] The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e.g., Hurtado v. California, 110 U. S. 516 (1884) (grand jury indictment requirement); Maxwell v. Dow, 176 U. S. 581 (1900) (12-person jury requirement); Twining v. New Jersey, 211 U. S. 78 (1908) (privilege against self-incrimination).
[Fundamental enough, after all.] That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within §1’s [section one’s] guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e.g., Benton v. Maryland, 395 U. S. 784 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g., Gitlow v. New York, 268 U. S. 652, 666 (1925) (right to free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 707 (1931) (same).
[Treating State & Federal Violations Differently.] In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e.g., Betts v. Brady, 316 U. S. 455, 473 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel . . . result[ed] in a conviction lacking in . . . fundamental fairness”).
[Wait - Treating State & Federal Violations the Same.] In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante, at 17–18 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante, at 37, 42–44 (plurality opinion)—a term the Court has long struggled to define.
[Rights have to be “deeply rooted in history.” Or maybe not.] While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 19 (plurality opinion) (quoting Glucksberg, 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas, 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). [overturning sodomy laws] Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g., Lochner v. New York, 198 U. S. 45 (1905); Roe v. Wade, 410 U. S. 113 (1973); Lawrence, supra.
All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not.
Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post, at 14 (Stevens, J., dissenting); see post, at 6–8 (Breyer, J., dissenting), while the plurality [majority] makes yet another effort to impose principled restraints on its exercise, see ante, at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.
To be sure, the plurality’s[majority’s] effort to cabin [bridle] the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post, at 7 (Breyer, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post, at 22 (Stevens, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights [Legal term: “Substantive rights” involve a right to the substance of being human, like freedom of religion, as opposed to a right to a “procedural right”, like a right to a jury trial, a legal procedure to enforce that right] this Court’s cases now claim it does.
I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process [Legal term: an oxymoron that is made the foundation of SCOTUS usurpation of authority to define and enforce rights: see Lonang Institute explanation following this paragraph] framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed....
Digression: explanation of the legal term “Substantive Due Process” by the amicus brief filed in Dobbs v. Jackson by Lonang Institute: [www.supremecourt.gov/DocketPDF/19/19-1392/185037/20210727131024868_19-1392%20tsac%20Lonang%20Institute.pdf]
A review of the text of the fourteenth amendment reflects no textual support for any “substantive due process” clause. Even the term is an oxymoron. If we took the words in their ordinary meaning, “due process” merely signifies a proper procedure. The word “substantive,” on the other hand, means rights and duties as opposed to the procedural rules by which such things are established or enforced. Thus, the term “substantive due process,” in plain English, means non-procedural proper procedure. Logically, “substantive due process” is a type of “A = Not A” statement, where something is procedural and not procedural simultaneously. But unlike philosophy or mathematics, An “A = Not A” statement in a legal context is just plain illogical. Either the Court, when invoking substantive due process, is talking about procedure or it is not. If yes, then due process as a legal doctrine stands on its own and there is no need to resort to substantive due process. If no, then due process does not affect the matter, for it does not relate to procedure. - ↑ More about “The rights subject to federal enforcement are...listed in the Constitution...”
Documenting The Original Meaning
of the 14th Amendment
The previous footnote explains how in Slaughterhouse (1873) SCOTUS nullified the clause of the 14th Amendment which had said Congress can intervene when states violate the “privileges and immunities” (constitutional rights) of their citizens. And as late as 2010, in McDonald v. Chicago, SCOTUS still follows that dark precedent, leaving that clause without any meaning that SCOTUS recognizes.
Justice Clarence Thomas wrote a Concurrence in McDonald explaining what is irrational and illegal about redefining out of existence any provision of the constitution. He quotes from what must be SCOTUS’ favorite precedent, the one that started the idea of courts “reviewing” (overturning) laws: Marbury v. Madison (1803). Thomas quotes from that SCOTUS Heaven of precedents to show that in redefining the “privileges and immunities” clause out of existence, SCOTUS violated the very principle that SCOTUS had turned into authority to assert its interpretation of the Constitution over that of Congress.
Here, Thomas begins by quoting Marbury:
II “It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803) (Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text.
The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U. S., at ___ (slip op., at 3) (quoting United States v. Sprague, 282 U. S. 716, 731 (1931)). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at ___ (slip op., at 3).
In 1868, when the 14th Amendment was ratified, “privileges and immunites” was a common phrase meaning “rights enumerated (specifically listed) in the Constitution”.
Thomas establishes that fact with quotes from official sources that fill the following five pages.
A 1 At the time of Reconstruction, [after the Civil War which ended in 1865] the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum [pre-Civil War] judicial decisions used the terms in this manner. See, e.g., Magill v. Brown, 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g., N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); id., at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); id., at 1140 (defining “right” as “[p]rivilege or immunity granted by authority”).[Footnote 2]
The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. ...
The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying antebellum usages of these terms).
...For example, a Maryland law provided that “[A]ll the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England . . . .” Md. Act for the Liberties of the People (1639), in id., at 68 (emphasis added).[Footnote 3]
As tensions between England and the Colonies increased, the colonists adopted protest resolutions reasserting their claim to the inalienable rights of Englishmen. Again, they used the terms “privileges” and “immunities” to describe these rights....the First Continental Congress declared in 1774 that the King had wrongfully denied the colonists “the rights, liberties, and immunities of free and natural-born subjects … within the realm of England.” 1 Journals of the Continental Congress 1774–1789, p. 68 (1904)....
3 Even though the Bill of Rights did not apply to the States, other provisions of the Constitution did limit state interference with individual rights. Article IV, §2, cl. 1 provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The text of this provision resembles the Privileges or Immunities Clause, and it can be assumed that the public’s understanding of the latter was informed by its understanding of the former.
Article IV, §2 was derived from a similar clause in the Articles of Confederation, and reflects the dual citizenship the Constitution provided to all Americans after replacing that “league” of separate sovereign States. Gibbons v. Ogden, 9 Wheat. 1, 187 (1824); see 3 J. Story, Commentaries on the Constitution of the United States §1800, p. 675 (1833). By virtue of a person’s citizenship in a particular State, he was guaranteed whatever rights and liberties that State’s constitution and laws made available. Article IV, §2 vested citizens of each State with an additional right: the assurance that they would be afforded the “privileges and immunities” of citizenship in any of the several States in the Union to which they might travel.
What were the “Privileges and Immunities of Citizens in the several States”? ...
[According to an early precedent] Article IV, §2 did not guarantee equal access to all public benefits a State might choose to make available to its citizens. See id., at 552. Instead, it applied only to those rights “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Id., at 551 (emphasis added). Other courts generally agreed with this principle. See, e.g., Abbott v. Bayley, 23 Mass. 89, 92–93 (1827) (noting that the “privileges and immunities” of citizens in the several States protected by Article IV, §2 are “qualified and not absolute” because they do not grant a traveling citizen the right of “suffrage [the right to vote] or of eligibility to office” in the State to which he travels)....
When describing those “fundamental” rights, Justice Washington thought it “would perhaps be more tedious than difficult to enumerate” them all, but suggested that they could “be all comprehended under” a broad list of “general heads,” such as “[p]rotection by the government,” “the enjoyment of life and liberty, with the right to acquire and possess property of every kind,” “the benefit of the writ of habeas corpus,” and the right of access to “the courts of the state,” among others....
...the weight of legal authorities at the time of Reconstruction indicated that Article IV, §2 prohibited States from discriminating against sojourning citizens when recognizing fundamental rights, but did not require States to recognize those rights and did not prescribe their content. The highest courts of several States adopted this view, ...
(describing Article IV, §2 as designed “to prevent discrimination by the several States against the citizens and public proceedings of other States”); 2 J. Kent, Commentaries on American Law 35 (11th ed. 1867) (stating that Article IV, §2 entitles sojourning [traveling] citizens “to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other”). This Court adopted the same conclusion in a unanimous opinion just one year after the Fourteenth Amendment was ratified. ...
Article IV, §2 of the Constitution protected traveling citizens against state discrimination with respect to the fundamental rights of state citizenship....
B I start with the nature of the rights that §1’s [Section One of the 14th Amendment] Privileges or Immunities Clause protects. Section 1 overruled Dred Scott’s holding that blacks were not citizens of either the United States or their own State and, thus, did not enjoy “the privileges and immunities of citizens” embodied in the Constitution. 19 How., at 417. T...
1 Nineteenth-century treaties through which the United States acquired territory from other sovereigns routinely promised inhabitants of the newly acquired territories that they would enjoy all of the “rights,” “privileges,” and “immunities” of United States citizens. ...
It is therefore altogether unsurprising that several of these treaties identify liberties enumerated in the Constitution as privileges and immunities common to all United States citizens....
For example, the Louisiana Cession Act of 1803, which codified a treaty between the United States and France culminating in the Louisiana Purchase, provided that
“The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.” Treaty Between the United States of America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat. 202, T. S. No. 86 (emphasis added).[Footnote 8]
The Louisiana Cession Act reveals even more about the privileges and immunities of United States citizenship because it provoked an extensive public debate on the meaning of that term. In 1820, when the Missouri Territory (which the United States acquired through the Cession Act) sought to enter the Union as a new State, a debate ensued over whether to prohibit slavery within Missouri as a condition of its admission. Some congressmen argued that prohibiting slavery in Missouri would deprive its inhabitants of the “privileges and immunities” they had been promised by the Cession Act. See, e.g., 35 Annals of Cong. 1083 (1855) (remarks of Kentucky Rep. Hardin). But those who opposed slavery in Missouri argued that the right to hold slaves was merely a matter of state property law, not one of the privileges and immunities of United States citizenship guaranteed by the Act.[Footnote 9]
Daniel Webster was among the leading proponents of the antislavery position. In his “Memorial to Congress,” Webster argued that “[t]he rights, advantages and immunities here spoken of [in the Cession Act] must . . . be such as are recognized or communicated by the Constitution of the United States,” not the “rights, advantages and immunities, derived exclusively from the State governments . . . .” D. Webster, A Memorial to the Congress of the United States on the Subject of Restraining the Increase of Slavery in New States to be Admitted into the Union 15 (Dec. 15, 1819) (emphasis added). “The obvious meaning” of the Act, in Webster’s view, was that “the rights derived under the federal Constitution shall be enjoyed by the inhabitants of [the territory].” Id., at 15–16 (emphasis added). In other words, Webster articulated a distinction between the rights of United States citizenship and the rights of state citizenship, and argued that the former included those rights “recognized or communicated by the Constitution.” Since the right to hold slaves was not mentioned in the Constitution, it was not a right of federal citizenship.
Webster and his allies ultimately lost the debate over slavery in Missouri and the territory was admitted as a slave State as part of the now-famous Missouri Compromise....Missouri Enabling Act of March 6, 1820, ch. 22, §8, 3 Stat. 548. But their arguments continued to inform public understanding of the privileges and immunities of United States citizenship. In 1854, Webster’s Memorial was republished in a pamphlet discussing the Nation’s next major debate on slavery—the proposed repeal of the Missouri Compromise through the Kansas-Nebraska Act, see The Nebraska Question: Comprising Speeches in the United States Senate: Together with the History of the Missouri Compromise 9–12 (1854). It was published again in 1857 in a collection of famous American speeches. See The Political Text-Book, or Encyclopedia: Containing Everything Necessary for the Reference of the Politicians and Statesmen of the United States 601–604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J., at 1294–1296 (describing Webster’s arguments and their influence)....
Establishing that Thomas’ interpretation
was not just the opinion of a few legal scholars
but of the whole nation.
The next 6 pages of early American quotes proves EVERYONE defined “privileges and immunities” as rights listed in the Constitution.
2 Evidence from the political branches in the years leading to the Fourteenth Amendment’s adoption demonstrates broad public understanding that the privileges and immunities of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing “to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason . . . with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.” 15 Stat. 712.
Records from the 39th Congress further support this understanding.
a After the Civil War, Congress established the Joint Committee on Reconstruction to investigate circumstances in the Southern States and to determine whether, and on what conditions, those States should be readmitted to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 57 (1986) (hereinafter Curtis). That Committee would ultimately recommend the adoption of the Fourteenth Amendment, justifying its recommendation by submitting a report to Congress that extensively catalogued the abuses of civil rights in the former slave States and argued that “adequate security for future peace and safety . . . can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic.” See Report of the Joint Committee on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th Cong., 1st Sess., p. XXI (1866).
As the Court notes, the Committee’s Report “was widely reprinted in the press and distributed by members of the 39th Congress to their constituents.” Ante, at 24; B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 264–265 (1914) (noting that 150,000 copies of the Report were printed and that it was widely distributed as a campaign document in the election of 1866). In addition, newspaper coverage suggests that the wider public was aware of the Committee’s work even before the Report was issued. For example, the Fort Wayne Daily Democrat (which appears to have been unsupportive of the Committee’s work) paraphrased a motion instructing the Committee to “enquire into [the] expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument.” The Nigger Congress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added).
...b Statements made by Members of Congress leading up to, and during, the debates on the Fourteenth Amendment point in the same direction. The record of these debates has been combed before. See Adamson v. California, 332 U. S. 46, 92–110 (1947) (Appendix to dissenting opinion of Black, J.) (concluding that the debates support the conclusion that §1 was understood to incorporate the Bill of Rights against the States); ... In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean....
Three speeches stand out as particularly significant. Representative John Bingham, the principal draftsman of §1, [section one] 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.
Bingham’s first draft of §1 was different from the version ultimately adopted. Of particular importance, the first draft granted Congress the “power to make all laws … necessary and proper to secure” the “citizens of each State all privileges and immunities of citizens in the several States,” rather than restricting state power to “abridge” the privileges or immunities of citizens of the United States.[Footnote 11] 39th Cong. Globe 1088. [In other words, the enacted 14th is reactive, not proactive like the first draft. It waits for states to abridge rights before Congress reacts.]
... the Times’ coverage of this debate over §1’s meaning suggests public awareness of its main contours—i.e., that §1 would, at a minimum, enforce constitutionally enumerated rights of United States citizens against the States.
... By the time the debates on the Fourteenth Amendment resumed, Bingham had amended his draft of §1 to include the text of the Privileges or Immunities Clause that was ultimately adopted. Senator Jacob Howard introduced the new draft on the floor of the Senate in the third speech relevant here. Howard explained that the Constitution recognized “a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, . . . some by the first eight amendments of the Constitution,” and that “there is no power given in the Constitution to enforce and to carry out any of these guarantees” against the States. 39th Cong. Globe 2765. Howard then stated that “the great object” of §1 was to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” …
In describing these rights, Howard explained that they included “the privileges and immunities spoken of” in Article IV, §2. Id., at 2765. Although he did not catalogue the precise “nature” or “extent” of those rights, he thought “Corfield v. Coryell” provided a useful description. Howard then submitted that “[t]o these privileges and immunities, whatever they may be— . . . should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, [and] . . . the right to keep and to bear arms.” Ibid. (emphasis added).
[Thomas selectively lists “the right to bear arms” in this case because this 2010 precedent is where SCOTUS finally jettisons Cruikshank’s holding that the Amendment does not require states to honor their citizens’ right to carry guns. Thomas still objects because this precedent still doesn’t jettison the notion that SCOTUS gets to decide which of the Constitution’s listed rights it will protect. Thomas continues:]
News of Howard’s speech was carried in major newspapers across the country, including the New York Herald, see N. Y. Herald, May 24, 1866, p. 1, which was the best-selling paper in the Nation at that time,...
N. Y. Times, May 24, 1866, p. 1. The following day’s Times editorialized on Howard’s speech, predicting that “[t]o this, the first section of the amendment, the Union party throughout the country will yield a ready acquiescence, and the South could offer no justifiable resistance,” suggesting that Bingham’s narrower second draft had not been met with the same objections that Hale had raised against the first. N. Y. Times, May 25, 1866, p. 4.
As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.... [courts were never authorized to swap the constitution’s list of rights for its own].
Both proponents and opponents of this Act [Civil Rights Act of 1866] described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit[ing] any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id., at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia, “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”)....
Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities Clause protected constitutionally enumerated individual rights....
Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” and which is codified in the still-existing 42 U. S. C. §1983. That statute prohibits state officials from depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Rev. Stat. 1979, 42 U. S. C. §1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape, 365 U. S. 167, 171 (1961)....
A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g., United States v. Hall, 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We think, therefore, that the . . . rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States”). Italic text
In addition, two of the era’s major constitutional treatises reflected the understanding that §1 would protect constitutionally enumerated rights from state abridgment. [Footnote 14] A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in §1 had “already been guarantied” by Article IV and the Bill of Rights, but that “[t]he new feature declared” by §1 was that these rights, “which had been construed to apply only to the national government, are thus imposed upon the States”).
Another example of public understanding comes from United States Attorney Daniel Corbin’s statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared: “[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that, as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, under ‘privileges and immunities.’ ” Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872).
This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rBold textights, including the right to keep and bear arms.
C The Privileges or Immunities Clause opens with the command that “No State shall” abridge the privileges or immunities of citizens of the United States. Amdt. 14, §1 (emphasis added). The very same phrase opens Article I, §10 of the Constitution, which prohibits the States from “pass[ing] any Bill of Attainder” or “ex post facto Law,” among other things. Article I, §10 is one of the few constitutional provisions [before the 14th Amendment] that limits state authority. ....Thus, the fact that the Privileges or Immunities Clause uses the command “[n]o State shall”—which Article IV, §2 does not—strongly suggests that the former imposes a greater restriction on state power than the latter.
This interpretation is strengthened when one considers that the Privileges or Immunities Clause uses the verb “abridge,” rather than “discriminate,” to describe the limit it imposes on state authority. [This responds to the argument of the defendant in the case that thought they could ban handgun possession so long as they did not “discriminate” but banned it for everyone equally.] - ↑ More about “...the ‘privilege’ of life and ‘immunity’ from...execution....”
As explained in other footnotes, “privileges and immunites” cited in Section One of the 14th Amendment refers to all the rights listed in the Bill of Rights, especially in the first Eight Amendments, and also a few rights named in the original Constitution. ‘
“Life” is a “privilege” named in the Fifth Amendment: “No person shall...be deprived of life...without due process of law.” Here is the complete Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The 8th Amendment prohibits “cruel and unusual punishments”, which certainly describes the several methods of murdering babies. The complete Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
These examples are given to illustrate how “privileges and immunities” is a natural way to describe the rights in the Bill of Rights; some define access to benefits - “privileges”, while others define protection from harms - “immunities”. - ↑ More about “Enumerated Rights recognized before the Constitution existed are not excluded from Congress’ protection.”
That statement will startle only a few lawyers who recognize that broadside attack on the whole SCOTUS claim of its own exclusive authority to decide what counts as a “fundamental constitutional right”.
The rest of us can only shake our confused heads and ask “Did someone say Congress can’t protect rights listed in the Constitution? Or that rights can’t be protected if they are too ancient? I thought you said what makes a right constitutional is if it is well settled in history and tradition. And now you say a right isn’t constituional if it is too well settled? I haven’t had a conversation like this since last night with my two-year-old.”
You see, that is exactly SCOTUS’ basis for robbing Congress of its 14th Amendment authority to enforce constitutional rights.
Justice Thomas pointed out how this works, but he was way too scholarly. Too “nice”. Too morally neutral. He never even described it as “evil”, “illegal”, “corrupt”, “fraud”, or even “unconstitutional”.
So I will quote his explanations, but add a little emotion.
Let’s start with the official “holding” of the 2010 case that SCOTUS still follows this warped reasoning:
Issue: Whether the Privileges or Immunities Clause of the Fourteenth Amendment requires the application of the Bill of Rights in its entirety to state and local governments.
Holding: No. The holding in the Slaughter-House Case remains in effect, and incorporation is the appropriate way to selectively apply provisions in the Bill of Rights beyond the federal government.
- McDonald v. City of Chicago 561 U.S. 742 (2010) _Chicago
Translation:
Issue: Whether “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” means Congress can intervene when states fail to protect the rights of their citizens that are listed in the Constitution. (When it was ratified, “privileges and immunities” meant “constitutional rights”.)
Holding: No ho! Remaining in effect is the idiotic holding in the 1873 Slaughter-House Case, that gutted the 14th Amendment just 5 years after it was ratified in 1868! That was cool how we did that! We used the flim flam that constitutional rights “of the United States” can’t mean rights that predated the United States! Good, huh? That excludes virtually every Constitutional right from enforcement by Congress! But that doesn’t mean WE can’t protect rights! No ho! Except that we won’t fuss with that “privileges and immunities” clause which would limit us to rights listed in the Constitution, which we don’t like. So we will redefine that clause into nonexistence, and then we will come back in through the next clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law”. We like that a lot better because it doesn’t tell us what to count as rights, which leaves US to make up whatever we please! Courtroom Heaven! Instead of being limited to rights that are “Constitutional”, meaning clearly listed in the Constitution, we will protect rights that strike us as “fundamental”, like for example the right to murder your baby, marry a homo, and never have to listen to a single Bible verse. And if we later decide we like a Constitutional Right after all, we will just call our incorporation of that right under the Due Process clause the “Incorporation Doctrine”. That will be legal-sounding enough to satisfy airhead voters. So how do we decide if a right is “fundamental”? Why, we look to see if it is “well ordered in history”! Isn’t that rich? The very criteria we use to say Congress CAN’T protect rights – that it predates the Constitution, is exactly the criteria we use to say We CAN make up a right that was never in the Constitution! And Americans let us get away with it!
Perhaps that is enough background to explain this official summary of the McDonald defense:
Four Chicago residents, including Otis McDonald, challenged a Chicago ordinance that required the registration of [guns, with an annual fee, and surrender of guns if a payment was missed]....McDonald also offered the novel argument that the Fourteenth Amendment's Privileges or Immunities Clause should be allowed to apply the Bill of Rights to state and local governments, overturning the Court's 1873 decision in the Slaughter-House Case. This doctrinal shift would have allowed the Bill of Rights to be applied directly to non-federal governments without the need for incorporation. It could have had an impact on other parts of the Bill of Rights to which incorporation had not yet been applied.
Before we go to Justice Thomas’ excerpts, let’s look at that official holding one more time, untranslated:
Issue: Whether the Privileges or Immunities Clause of the Fourteenth Amendment requires the application of the Bill of Rights in its entirety to state and local governments.
Holding: No. The holding in the Slaughter-House Case remains in effect, and incorporation is the appropriate way to selectively apply provisions in the Bill of Rights beyond the federal government.
Here is the official summary of Thomas’ concurrence at justia.com:
Concurrence, Clarence Thomas (Author) Summary: Thomas would have accepted McDonald’s bolder argument and overruled the Slaughter-House Case, finding that the Privileges or Immunities Clause of the Fourteenth Amendment automatically applied all of the protections in the Bill of Rights to states and cities.
Now some Thomas excerpts from McDonald v. City of Chicago 561 U.S. 742 (2010) _Chicago:
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history. [Which is important because today’s ruling reached the right position on the Right to Bear Arms as if by accident; following the Constitution better would have spared us holding the wrong position for the past century, and would correct other horrendous precedents.]
Applying what is now a well-settled test, the [stupid] plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)).
I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause....
Thomas points out that not only are the rest of us confused about what “rights” SCOTUS will invent next, but SCOTUS itself can’t decide which “rights” are “fundamental”:
....the Court has held that the [Privileges and Immunities] Clause prevents state abridgment of only a handful of rights,
....As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of §1 [Section One of the 14th Amendment] in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” - ↑ More about “ ‘Substantive Due Process’ ...turned the Constitution’s Authority...to Enforce Rights, into its own authority to reclassify abominations as ‘rights’.”
Christian Legal Society (http://www.supremecourt.gov/ DocketPDF/19/19-1392/185104/20210728115957257_19-1392%20Amicus%20Brief%20%20Christian%20Legal%20Society%20et%20al.pdf) Some of this Court’s most ignominious decisions emerged from expansive and unchecked conceptions of substantive due process. The “most salient instance . . . was, of course, the case that the [Fourteenth] Amendment would in due course overturn, Dred Scott v. Sandford.” Glucksberg, 521 U.S. at 758 (Souter, J., concurring in the judgment). A half-century later, Lochner v. New York inspired a line of “deviant economic due process cases” that “harbored the spirit of Dred Scott in their absolutist implementation of” substantive due process. Id. at 761. Roe fares no better under a proper constitutional analysis.
Lonang Institute in its amicus in Dobbs. (www.supremecourt.gov/ DocketPDF/19/19-1392/ 185037/20210727131024868_19-1392%20tsac%20Lonang%20Institute.pdf A review of the text of the fourteenth amendment reflects no textual support for any “substantive due process” clause. Even the term is an oxymoron. If we took the words in their ordinary meaning, “due process” merely signifies a proper procedure. The word “substantive,” on the other hand, means rights and duties as opposed to the procedural rules by which such things are established or enforced. Thus, the term “substantive due process,” in plain English, means non-procedural proper procedure. Logically, “substantive due process” is a type of “A = Not A” statement, where something is procedural and not procedural simultaneously. But unlike philosophy or mathematics, An “A = Not A” statement in a legal context is just plain illogical. Either the Court, when invoking substantive due process, is talking about procedure or it is not. If yes, then due process as a legal doctrine stands on its own and there is no need to resort to substantive due process. If no, then due process does not affect the matter, for it does not relate to procedure. This brings us back to Eden [when the Serpent offered an alternative interpretation of what God meant] where the argument was first made that the words of the law do not mean what they say. While we acknowledge the argument has the weight of time behind it, originating in great antiquity, we respectfully urge the Court not to follow that ancient precedent.
Professor Nathan Schlueter shows from historical speeches that Congress was limited in its authority to define constitutional rights:
It is quite clear from the history of the Amendment that its framers did not intend to give Congress [unlimited power to define the scope of constitutional rights] for due process and equal protection purposes. An early draft of the Amendment stated: “Congress shall have the power to make all laws which shall be necessary and proper to secure the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.”
Several Republicans objected to this language because it would merely “effect a general transfer of sovereignty over civil rights from the states to the federal government, while effectively failing to limit the exercise of state power that had produced the black codes.” Instead, the framers of the Amendment chose to lodge the prohibition in the Amendment itself, while leaving Congress corrective power. The Amendment clearly does not give Congress plenary [absolute, unlimited, complete] power over the meaning of the first section of the Fourteenth Amendment. The strong implication of the text and history is that the courts would have a strong hand in enforcing its provisions. Scalia’s interpretation is implausible and would effectively emasculate the Amendment.
Adding these truths to the findings of a prolife law will knock down a hornet’s nest bigger than abortion, but also deadlier physically and spiritually, because it is the nest of almost every Precedent from Hell that has attacked and still threatens America, beginning with a defense of the 300 “white supremacist” Democrats who murdered over 150 mostly black Republicans and burned down the courthouse they were defending, after Democrats had tried to seize the courthouse by voter fraud. See Cruikshank (1876) and the Civil Rights Cases (1882).
Justice Thomas has already softened the resistance with his concurrence in Dobbs v. Jackson, in which he cites his writings on the subject in other cases. A few of the 140 amicus briefs filed in that case offer further light. An earlier analysis was made years ago by professor Nathan Schluetter, who even sparred in print with Judge Bork.
The very fact that abortion was the worst of the ways the United States Supreme Court has turned American law upside down creates an opportunity to heal that branch of our government, and heal all the harm to our nation and its culture and morals that it has caused. As Professor Schluetter observes, “We must not let this opportunity pass to boldly challenge the prevailing jurisprudence and its attendant epistemological and moral skepticism with respect to abortion.”
How SCOTUS morphed the Constitution’s end of racial tyranny
into its own tool of judicial tyranny
in only eight years
(You can see that I am having trouble settling on a headline for this section)
The Civil War raged from 1860 to 1865. In 1866 the 13th Amendment was ratified which outlawed slavery except as punishment for a crime. So Southern state legislatures made it a crime to have weapons, and to gather in meetings of more than 4 – if you are Black! So two years later, in 1868, the 14th Amendment was ratified, which authorized Congress to correct deprivation of “equal protection of the laws” to anyone under the “jurisdiction” of the [state] laws.
Justice Thomas explains how quickly the Supreme Court emasculated those protections, and how, in McDonald v. City of Chicago, 561 U.S. 742 (2010)
Justice Clarence Thomas. After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, §1 [Section One] of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that “[a]ll 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.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id., at 405–406.
The meaning of §1’s [section one’s] next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status. [An example of a “privilege” would be freedom of religion. An example of an “immunity” would be immunity from “cruel and unusual punishment”.]
This Court’s precedents accept that point, but define the relevant collection of rights [so] narrowly [as to leave them without effect, violating the obvious principle that] ....“It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803)
....[The trashing of the Privileges and Immunities clause began] in the Slaughter-House Cases, 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided [5-4] decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, .... In other words, the Court defined the two sets of rights as mutually exclusive....and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id., at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79.
(For example, this would exclude protection rights which existed before our national government, such as our God-given “unalienable rights” to “life, liberty, and the pursuit of happiness”.)
This arguably [logically] left open the possibility that certain individual rights enumerated [listed] in the Constitution [especially in its first Eight Amendments] could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.
That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause.
Chief among those cases is United States v. Cruikshank, 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553.
In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.
After reading Thomas’ synopsis of Cruikshank, I wanted to read the ruling itself. Had SCOTUS indeed acquired no more regard for blacks than they had in its 1857 Scott v. Sandford ruling that blacks are “property”? Did SCOTUS actually let off three leaders of a mass-murdering KKK mob? and only 10 years after the Civil War, and 7 years after the 14th Amendment “guaranteed” “equal protection of the laws” for blacks, after certifying all blacks as full citizens with full voting rights?
And more important for today, did SCOTUS’ 1876 evasion of the 14th Amendment establish the same evasion that still drags America towards Hell a century and a half later?
My first excerpt from the case is the breathtaking logic described by Thomas as “the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because ‘[t]he right . . . existed long before the adoption of the Constitution.’ ” Huh? Can you decipher that? Here is how Cruikshank literally said it:
Cruikshank Itself. The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It “derives its source,” to use the language of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 211, “from those laws whose authority is acknowledged by civilized man throughout the world.” It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.
Let me see if I read that right: When Congress codifies a law of God, or an “unalienable right”, federal courts have no jurisdiction to enforce it because its origin is ancient! Never mind that the right to peaceably assemble is hardly universal in human governments, but is in fact historically rare!
Do we have the stomach for another excerpt? Here we learn that while everyone who passed the 14th Amendment thought it empowered Congress to correct trampling of rights in states, no-ho, not so!
The Government of the United States, when established, found it [the right to assemble, already] in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id., 22 U. S. 203, subject to State jurisdiction.
Not till half way through the ruling is the 14th Amendment even mentioned, so at least they had heard of it, but there we learn that “life, liberty, and property” can’t be legally taken by a state. But if individuals take it, legally, without violating state law, the 14th Amendment only winks. The Amendment targets only murders by states, not by individuals, and if state law refuses to criminalize murder of minorities that doesn’t count. Here’s how Cruikshank said it:
The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.
Here is another excerpt that reasons as if the 14th Amendment “equal protection of the laws” had never been imposed on states:
The first amendment to the Constitution prohibits Congress from abridging “the right of the people to assemble and to petition the government for a redress of grievances.” This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id., 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, “the scope and application of these amendments are no longer subjects of discussion here.” They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.
And again,
The particular amendment [the 14th] now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
Not even by the 14th? What then was left of the 14th to so trouble the South that the Northern states made the South accept it as a condition of sending representatives to Congress again? Hmmm.
Senator Bingham, “Father of the 14th Amendment” [2], lived until 1900. What did he think of the Cruikshank ruling? My googling didn’t turn up an answer. He was the U.S. Ambassador to Japan 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?
Justice Thomas elsewhere proves that “privileges and immunities” meant, to the Amendment’s authors and to the general public who ratified the Amendment, the rights listed in the Constitution – especially in its Bill of Rights, the first 10 Amendments. (The first 8 are rights of individuals.) Those rights are what the 14th is now supposed to enforce against states which violate them. The Cruikshank majority decision rejects that understanding, saying those rights still bind only Congress – not states.
Cruikshank: The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. ...[likewise] “bearing arms for a lawful purpose”...is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. [States may infringe it. And individual citizens of states may infringe it. And Congress can’t do anything about it.]
In other words, SCOTUS refused to accept that its Dred Scott precedent of only 19 years before could be overturned by a mere Amendment to the Constitution! Or by a mere Civil War!
On Sunday, April 13, 1873, an armed white conservative militia attacked African-American freedmen, who had gathered at the Grant Parish courthouse in Colfax, Louisiana to protect it from the pending Democratic takeover. Although some of the black people were armed and used their weapons, estimates were that 100–280 were killed, most of them after surrendering, including 50 being held prisoner that night. Three white people were killed, two perhaps by friendly fire. www.en.wikipedia.org/wiki/United_States_v._Cruikshank
This was in the tense aftermath of months of uncertainty after the disputed gubernatorial election of November 1872, when two parties declared victory at the state and local levels. The election results were still undetermined at the beginning of spring, and both Republican and Fusionists, who were endorsed by the Democrats, had certified their own candidates for the local offices of sheriff (Christopher Columbus Nash) and justice of the peace in Grant Parish, where Colfax is the parish seat. Federal troops reinforced the election of the Republican governor, William Pitt Kellogg.
Some members of the white gangs were indicted and charged by the Enforcement Act of 1870. The Act had been designed primarily to allow Federal enforcement and prosecution of actions of the Ku Klux Klan and other secret vigilante groups against blacks, both for violence and murder and for preventing them from voting. Among other provisions, the law made it a felony for two or more people to conspire to deprive anyone of his constitutional rights. The white defendants were charged with sixteen counts, divided into two sets of eight each. Among the charges included violating the freedmen's rights to lawfully assemble, to vote, and to bear arms. www.en.wikipedia.org/wiki/ United_States_v._Cruikshank
The Cruikshank ruling itself:
“The Government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States.” (Hmmm. But didn’t the 14th Amendment expressly place protection of “privileges” of citizens of all the states under the jurisdiction of Congress?)
The Court found that the First Amendment right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone,” thus “for their protection in its enjoyment ... the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” [Hmmm. Surrendered. Not even by the 14th Amendment, one of the semi-official terms of surrender - a condition of participating in Congress - from losing the war?]
The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the “powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police”, “not surrendered or restrained” by the Constitution of the United States.
https://en.wikipedia.org/wiki/United_States_v._Cruikshank continues: The Court also ruled that the Due Process and Equal Protection Clauses applied only to state action, and not to actions of individuals: “The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.” Concurrence by Justice Clifford.
Cruikshank has been cited for more than a century by supporters of restrictive state and local gun control laws such as the Sullivan Act. ...
Cruikshank and Presser v. Illinois, which reaffirmed it in 1886, are the only significant Supreme Court interpretations of the Second Amendment until the ambiguous United States v. Miller in 1939. Both preceded the court's general acceptance of the incorporation doctrine and have been questioned for that reason.
The majority opinion of the Supreme Court in District of Columbia v. Heller suggested that Cruikshank and the cases flowing from it would no longer be considered good law as a result of the radically changed opinion of the Fourteenth Amendment when that issue eventually comes before the courts:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
This issue did come before the Supreme Court in McDonald v. Chicago (2010), in which the Supreme Court “reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.”
Regarding this assertion in Heller that Cruikshank said the first amendment did not apply against the states, Professor David Rabban wrote Cruikshank “never specified whether the First Amendment contains ‘fundamental rights’ protected by the Fourteenth Amendment against state action.”
The Civil Rights Cases (1883) and Justice Rehnquist's opinion for the majority in United States v. Morrison (2000) referred to the Cruikshank state action doctrine.
Justice Clarence Thomas: Detailed Proof that the turning the “Due Process” clause into a magic wand for SCOTUS to reclassify abominations as “rights” has been a disaster from the beginning, and Proof that sticking to the “Privileges and Immunities Clause” would be simpler, more predictable, and more just.
The following section is solid Thomas excerpts from a couple of cases. I’m telling you that instead of indenting and using quotes. The only rare times I comment, I put my comments [in brackets].
For example, Thomas’ concurrence begins, “I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents [abortionists] invoke one source for that right [to murder babies]: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty [?to murder babies??], or property without due process of law.”
It is surreal that an abortionist could base his “liberty” to murder babies on the same sentence that guarantees those same babies a right to “Life”! A novel about it will have Satan quoting the phrase to demand “liberty” for murderers, and laughing as the befuddled public hesitates to observe that “Life” is listed first.
It is also surreal, that Thomas does not mention this irony, nor mention at all the right to life for babies which abortion can’t be allowed to snuff out!
His focus in his Dobbs Concurrence is to show that the “Due Process” clause of the Amendment, upon which Roe based its imaginary “fundamental right to abortion”, is no basis for identifying any rights at all; it is the previous clause with the words “privileges and immunities” which legitimately authorize court protection. But Thomas notes no right of babies to live in that clause either.
Most surreal of all: even after quoting the text of the 14th Amendment that lists “Life” as the focus of its protection, it seems not to occur to him, at any point in his concurrence, that the lives of babies belong in the discussion. He never addresses it, focusing only on the lack of right to aborticide. And not because aborticide is murder, but because the “right” is not “enumerated”. (Specifically listed in the Constitution.)
He does conclude that “there is no abortion guarantee lurking in the Due Process Clause.” But is it “lurking” in the “privileges and immunites clause” which he says is the only legitimate authority for courts to define and protect rights? He answers, “...even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.”
Yet he only finds zero support for a right to aborticide; neither does he mention any right of babies to live.
Justice Clarence Thomas spreads his grasp of the 14th Amendment through several precedents, yet not even in Dobbs v. Jackson, the June 2022 precedent that knocked down Roe v. Wade and Planned Parenthood v. Casey, does Thomas observe that since the rights SCOTUS is authorized to protect are those listed in the Constitution, and the Right to Life is listed in the Constitution, therefore no state can violate that Right to Life by legalizing the murder of babies.
So I will make that point.
Isn’t “life” enumerated by the 5th Amendment requirement of due process and jury trials before taking life, combined with the fact that the Preamble to the Constitution applies its protections not only to citizens but to posterity?
Preamble: We the people of the United states of America, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. Amendment 5: No person shall...[be] deprived of life...without due process of law;... Can “due process of law” mean anything less than all the legal rights listed in the 5th and 6th Amendments, right to trial, to face accusers, etc? Can an objection be that babies are not accused of crimes so we can kill them without giving them a chance? Can the innocent have fewer rights than the guilty? How can any “process of law”, which means equal in its operation upon all, protect so many expensive rights to the most obviously criminal, but deny any protection at all (from criminals) to the most obviously innocent?
Now here are several pages of Thomas quotes from two cases he cites in Dobbs:
“Fundamental rights” are undefined, confusing, inconsistent, an oxymoron, and unconstitutional
United States v. Carlton, 512 U.S. 26 (1994)JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
“ ‘substantive due process’ ” is not “a constitutional right” but “rather...an oxymoron”.
.... “I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process”...
In “the due process reasoning the Court applies to its identification of new so-called fundamental rights, such as the right to structure family living arrangements, see Moore v. East Cleveland, 431 U. S. 494 (1977) (plurality opinion), [which strikes down a city zoning ordinance that keeps a grandmother from living with her grandchild] and the right to an abortion, .., the Court strikes down laws that concededly [admittedly] promote legitimate interests, ...[yet] ...the Court upholds [some other law] because it rationally furthers a legitimate interest...
The picking and choosing among various rights to be accorded “substantive due process” protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called “economic rights” (even though the Due Process Clause explicitly applies to “property”) unquestionably involves policymaking rather than neutral legal analysis.
I would follow the text of the Constitution, which sets forth certain substantive [substantial, not imaginary, not subordinate] rights [in the “privileges and immunites” clause] that cannot be taken away, and adds, beyond that, [in the following “due process” clause] a right to due process when life, liberty, or property is to be taken away.
SCOTUS STILL refuses to protect all constitutional rights, STILL usurping the power to decide for itself which rights it likes
McDonald v. City of Chicago, 561 U.S. 742 (2010)
...many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge.
The overarching goal of pro-slavery forces was to repress the spread of abolitionist thought and the concomitant risk of a slave rebellion. Indeed, it is difficult to overstate the extent to which fear of a slave uprising gripped slaveholders and dictated the acts of Southern legislatures. Slaves and free blacks represented a substantial percentage of the population and posed a severe threat to Southern order if they were not kept in their place. According to the 1860 Census, slaves represented one quarter or more of the population in 11 of the 15 slave States, nearly half the population in Alabama, Florida, Georgia, and Louisiana, and more than 50% of the population in Mississippi and South Carolina. Statistics of the United States (Including Mortality, Property, &c.,) in 1860, The Eighth Census 336–350 (1866). ...c
After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics.” K. Stampp, The Era of Reconstruction, 1865–1877, p. 104 (1965) (hereinafter Era of Reconstruction).
As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. See ante, at 23. Some States formally prohibited blacks from possessing firearms. Ante, at 23–24 (quoting 1865 Miss. Laws p. 165, §1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. See, e.g., La. Statute of 1865, reprinted in id., at 280. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.” Ante, at 24.
The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, see ante, at 23–24 .... Section 1 guaranteed the rights of citizenship in the United States and in the several States without regard to race. But it was understood that liberty would be assured little protection if §1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before §1’s adoption, “the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together.” In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83–84....
This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that “[n]o State shall … abridge” the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.[Footnote 19]
[Surely then, also, was the Right to Live.] III
Slaughterhouse Cases
My conclusion is contrary to this Court’s precedents, which hold that the Second Amendment right to keep and bear arms is not a privilege of United States citizenship. ....
This Court rejected the butchers’ claim, holding that their asserted right was not a privilege or immunity of American citizenship, but one governed by the States alone. The Court held that the Privileges or Immunities Clause protected only rights of federal citizenship—those “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” id., at 79—and did not protect any of the rights of state citizenship, id., at 74. In other words, the Court defined the two sets of rights as mutually exclusive.
After separating these two sets of rights, the Court defined the rights of state citizenship as “embrac[ing] nearly every civil right for the establishment and protection of which organized government is instituted”—that is, all those rights listed in Corfield. 16 Wall., at 76 (referring to “those rights” that “Judge Washington” described). That left very few rights of federal citizenship for the Privileges or Immunities Clause to protect. The Court suggested a handful of possibilities, such as the “right of free access to [federal] seaports,” protection of the Federal Government while traveling “on the high seas,” and even two rights listed in the Constitution. Id., at 79 (noting “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus”);....
Cruikshank: next to Roe, Leader of Abomination Cases
https://journals.law.harvard.edu/crcl/wp-content/uploads/sites/80/2011/09/385_Pope.pdf Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon
by James Gray Pope
United States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the Privileges or Immunities Clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washington v. Davis, announced that the Fourteenth Amendment’s Equal Protection Clause protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boerne v. Flores, first excepted the Fourteenth Amendment from the general principle that Congress enjoys discretion to select the means of implementing its constitutional powers.
Historically, if the argument of this Article holds true, Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s. The circuit court opinion of Justice Joseph Bradley unleashed the second and decisive phase of Reconstruction-era terrorism, while the ruling of the full Court ensured its successful culmination in the “redemption” of the black-majority states.
Despite its enormous jurisprudential and historical importance, however, Cruikshank has been omitted from the mainstream narrative and pedagogical canon of constitutional law. The results have been obfuscation and distortion.
Unlike the Civil Rights Cases, Slaughter-House, Davis, and City of Boerne —from which students learn the principles actually announced in Cruikshank —Cruikshank lays bare the true origin of those principles in affirmative judicial intervention immunizing overtly racist terrorism against effective law enforcement.
By contrast, Plessy v. Ferguson, the legal profession’s chosen focus for confession and atonement, merely let stand the legal product of a white supremacist state government that owed its existence to Cruikshank. With Cruikshank safely off stage, American law students are treated to a happy tale of progress from Plessy to Brown [v. Board of Education] starring the Supreme Court as the primary protector of civil rights — a role that, ironically, the Court carved out for itself by truncating Congress’s civil rights powers in Cruikshank. Add Cruikshank, and the entire narrative shifts in ways that upset time-honored notions in the dimensions of federalism, separation of powers, popular constitutionalism, and class.
Many influential leaders, including Bradley and various members of Congress, read Slaughter-House to hold that although the Fourteenth Amendment did not incorporate unenumerated rights, it did include “rights mentioned in the constitution.”
Cruikshank also announced the principle that the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment’s ban on racial exclusions from voting protected African Americans only against provably intentional race discrimination. Finally, Cruikshank first excepted the Fourteenth Amendment from the general principle, announced in McCulloch v. Maryland, that Congress enjoys discretion to select the means of implementing its constitutional powers. Judged by its jurisprudential impact, then, Cruikshank belongs at the center of our pedagogical canon.
The same conclusion follows from Cruikshank’s impact on the ground. Considered together, the circuit court and Supreme Court rulings provide — if the argument presented below holds true — a dramatic demonstration of the judiciary’s capacity to alter the course of political development. Justice Bradley’s circuit court opinion disrupted the federal enforcement effort and unleashed a coordinated campaign of paramilitary terrorism that ousted numerous county-level Republican officials and made possible the “redemption” of Alabama and Mississippi. The full Court’s ruling rendered Bradley’s judgment permanent, terminated day-to-day civil rights enforcement, and left open only the possibility of enforcing voting rights at election time — not enough to prevent white supremacists from regaining control of the black-majority states.
Despite its enormous jurisprudential and historical importance, however, Cruikshank receives sparse attention in mainstream constitutional law texts.
...our mainstream story has long featured the conflict between national power and states’ rights. The Supreme Court appears as a protector of state authority against national power in The Slaughter-House Cases and The Civil Rights Cases. Add Cruikshank, and those decisions slide to the periphery. It turns out that four of the most important interpretive issues raised by the Reconstruction Amendments were resolved in a case [Cruikshank] involving the exercise of national power in support of state governments struggling for survival against paramilitary insurrection.
The Cruikshank rulings protected “state” jurisdiction only in the sense that, as argued by former Confederates and President Andrew Johnson, state authority was properly grounded not on the citizenry defined in the Fourteenth Amendment, but on the pre–Civil War (white) “people” of the state. [That is, Cruikshank protected “state jurisdiction” redefined as the will of the pre-Civil War white people, not on the will of citizens as defined in the 14th Amendment.]
With regard to the three majority-black states, this reality was painfully apparent and could not have been overlooked in the Justices’ consideration of the issues. Far from protecting the rights of constitutionally sanctioned states, the Court blocked the national government from assisting official state governments in the preservation of law and order.
...our received narrative spotlights the Supreme Court as protector of civil rights against the elected branches, a role in which it sometimes shines (Strauder v. West Virginia and Brown) and sometimes fails (Plessy and Korematsu v. United States).
Add Cruikshank, however, and these cases fade in relative importance. It turns out that the Court might have exerted its greatest influence on constitutional rights not by protecting rights against the elected branches, but by stripping rights of legislative and executive protection. Had Bradley and the full Court upheld the convictions in Cruikshank, the system of Jim Crow that gave rise to Plessy and Brown might never have existed.
...White supremacists launched a ferocious campaign of terrorism during this period, but southern state governments, Congress, federal prosecutors, and southern juries responded effectively. Lower courts made this success possible by interpreting the Reconstruction Amendments broadly. Unfortunately, as recounted in Part II, first Justice Bradley and then the full Supreme Court disrupted this dynamic in Cruikshank, which imposed strict limitations on the enforcement of civil and political rights at a moment when the political and paramilitary struggle hung in the balance. Judging from the private and public writings of Justice Bradley, considerations of class and, in particular, of labor control were important in shaping the outcome.
The “Slaughter House Cases”, 3 years before, only 4 years after the 14th Amendment was ratified, were the first time SCOTUS gutted the Privileges and Immunities clause in which the 1st and 2nd Amendments were explicitly made a right which states could not abridge, with Congress empowered to enforce it against states. The evil added by Cruikshank was to apply that emasculation of rights listed in the Bill of Rights, over which a war had just been won, to defend the mass slaughter of the very people for whom the war had been fought and the Amendment ratified.
Of course the slaughter of 165 blacks for the offense of peaceable assembly, and even the total 6,500 black casualties after the Civil War, (www.theguardian.com/us-news/2020/jun/15/lynchings-report-reconstruction-era-black-americans) is nothing compared to the slaughter of 65 million babies for the offense of being conceived. Although the 7 million slaves imported into the South during the 1700’s moves in that direction.
SCOTUS’ evasion of the Constitution operated then and now. Then, it was that the 14th Amendment enforced upon states regards only those rights which Congress invented and which had never before existed. Today, it is that mere lowly Supreme Court Justices can’t tell if a baby of a human is a human (Roe) but even if they could tell, that shouldn’t interrupt our national discussion about whether to kill them.(Dobbs). What is common to both, and that Justice Thomas struggles to correct, is that SCOTUS ignores the “privileges and immunities” of citizens, which the ratifying public understood to mean the rights listed in the first eight Amendments of the Bill of Rights. As for what rights SCOTUS will defend, that flip flops every generation or two.
The dissent in Cruikshank is interesting because it throws out the majority’s nonsense about states not being subject to the 14th Amendment with:Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens thereof, and the Fourteenth Amendment also provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Congress may, doubtless, prohibit any violation of that provision, and may provide that any person convicted of violating the same shall be guilty of an offence and be subject to such reasonable punishment as Congress may prescribe.
But the dissent finds a different reason not to prosecute the KKK mob: because there were no facts alleged in the indictment. No where, who, when.
It was suspicious to me, reading the case, that a jury would convict a KKK mob, a courageous feat in itself in those violent days, and there would be nothing in the record allowing any judge who cared, to reconstruct what happened. Every other case I have read explains the facts of the case. Not this case. We read what laws various defendants were charged with, but we don’t know what anyone did that broke those laws. Justice Thomas provides details from other, unnamed sources.
A separate article in this document, “What Happened to Constitutional Rights?” quotes Thomas further, along with a few other legal scholars, to explain how the Supreme Court developed its “Substantive Due Process” sophistry to (1) ignore violations of truly fundamental rights with which we are “endowed by our Creator”; (2) create new, allegedly “fundamental”, rights based not on law, tradition, religion, science, medicine, or facts of any nature, but on the personal “values” of justices, thus blocking our God-given rights with protection of Bible-defined “abominations”; and (3) take from Congress the authority, explicit in Section Five of the 14th Amendment, to restore deprivations of rights, which logically authorizes and requires Congress to define those rights which it restores. - ↑ More about “[‘Substantive Due Process’] is an illegal, unconstitutional, Freedom-crushing fraud from Hell fomenting a long line of Landmark Abomination Cases.”
Landmark Abomination Cases
The following landmark Abomination Cases are among those listed as “Establishment Clause” cases at https://supreme.justia.com/cases-by-topic/religion and as “Due Process” cases at www.supreme.justia.com/cases-by-topic/due-process.
“Establishment Clause” cases are so categorized because their jurisdiction is based on the clause of the 1st Amendment that reads: “Congress shall make no law respecting an establishment of religion....” Originally that meant the federal government can’t force you to attend, or give money to, their favorite church. Now it means no government statement or policy can say anything nice about the Bible.
“Due Process” cases are so categorized because their jurisdiction is based on the clause of the 14th Amendment that reads, “...nor shall any State deprive any person of life, liberty, or property, without due process of law....” The 5th Amendment has the same right, but only applied when federal prosecutors go after someone for violating a federal crime. It is the 14th Amendment that gives federal courts jurisdiction when states deprive someone of “Due Process”. (Although the 14th only gives courts jurisdiction to prosecute violations of federal law; the authority to intervene when there is no federal law was given to courts by themselves.)
There are two kinds of “Due Process” that lawyers talk about.
The original kind is “Procedural Due Process”, which is not controversial, is not the source of abominations, and is the only kind the Constitution authorizes. It simply means that when people are prosecuted, they should have the same opportunity to defend themselves – the same legal procedures (right to a jury, to a lawyer, to know the charges, to face accusers, etc) that they would if they were rich, famous, powerful, and “important”. The new kind is called “Substantive Due Process”. The quotes from Justice Clarence Thomas and other scholars below, explain that “Substantive Due Process” is made up by judges to give themselves authority the Constitution denies, in order to violate the rights specified in the Constitution and wage war against God. (Not that these authorities dare to observe out loud that SCOTUS is at war with God, but a look at their Landmark Abomination Cases makes clear that is what they are doing, and Christian literature often perceives spiritual warfare in their rulings.)
Courts didn’t start using the phrase “Substantive Due Process” until after 1900, but their anti-reasoning was at work in the 1857 case that sparked the Civil War, Dred Scott v. Sandford, in which a black slave sued for freedom when his master took him into a state that had outlawed slavery, but SCOTUS said Dred Scott was “property” with no right to appeal in court – and any man ought to be allowed to carry his “property” across state lines without forfeiting it.
(See “‘Substantive Due Process’: how SCOTUS usurped the Constitution’s Authority to Define Rights, and Congress’ Authority to Enforce Rights, into its own authority to reclassify abominations as ‘rights’ )
The following “Due Process” cases invoke “Substantive Due Process” in whole or in part.
Background: The 14th Amendment was ratified in 1868, three years after the Civil War ended, to force Southern states to give Blacks all the rights given others. It enables Congress to force states to protect their citizens’ rights that are listed [“enumerated”] in the Constitution, especially in its first Eight Amendments – when states are not otherwise willing. It describes those enumerated rights as “privileges” (ie. freedom of religion, right to bear arms, publish the truth) and “immunities” (ie. freedom from “cruel and unusual punishment”).
At least that was the understanding of the authors of the 14th Amendment, and of the voters who ratified it in 1868, according to Justice Thomas in several dissents, including in Dobbs v. Jackson.
But as Thomas explained, it took SCOTUS only five years (1873, Slaughterhouse Cases) to take Congress’ power over states to itself, (in Section 5 of the Amendment), and to remove all of the enumerated rights in the Bill of Rights from what SCOTUS allowed the 14th Amendment to protect!
And it was not long afterward that SCOTUS seized the power to define which rights are “constitutionally protected” from the list in the Constitution, by imagining in the 14th Amendment’s “Due Process” clause the authority to dream up whatever seemed right to them.The 14th Amendment gives federal courts power
to stop states from violating federal laws
that protect Constitutional Rights.
SCOTUS misused its new power over states
to stop states and Congress
from protecting Constitutional Rights
that "violate" unconstutional "rights"
that SCOTUS likes
The 14th Amendment defines as “rights”
those which are listed in the Constitution.
(Right to life, freedom of speech and religion, etc.)
It took SCOTUS only 5 years
to reduce the list of rights
which it allows Congress to protect
to only those in the Constitution which it likes,
and those not in the Constitution which it makes up
The 14th Amendment, Section 5, gives Congress,
not courts,
the power to “enforce” the amendment,
which subsumes the authority
to define the scope of rights.
But SCOTUS says Congress can only enforce
rights that SCOTUS says are rights,
and to only the extent that SCOTUS permits.
That history, supported by quotes from Justice Thomas and others, is summarized in ‘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."
The 14th Amendment. Here is the 14th Amendment itself. Notice that Section One has four clauses. Lawyers refer to them by their key words: the “citizenship clause”, the “privileges and immunities” clause, the “due process” clause, and the “equal protection clause”. Each clause protects a distinct set of very important rights, over which judges and lawyers continually battle along with Section 5 which names Congress, not courts, as the enforcer of rights.
(Section 1) 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....
(Section 5) The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
The last 4 Clauses protect the Right to Live. The “Privileges and Immunities” clause protects unborn babies. The clause refers to every right listed (“enumerated”) in the Constitution, and the right to live is “enumerated” in the following “Due Process” clause, besides being the Number One “unalienable right” listed in the Declaration of Independence, which declares protection of that right to be the primary purpose of governments.
The “Equal Protection” clause protects unborn babies. A state deciding whether to let them live certainly exercises “jurisdiction” over them, so babies must have “equal protection” with judges – a baby’s life should have the same protection in law as the life of any judge.
The “Due Process” clause protects unborn babies. SCOTUS has extracted dozens of rights from that poor little clause, none of which are as “fundamental” as the right to live, which Dobbs v. Jackson refuses to protect from murder-driven voters.
The “Congress shall have the power to enforce” clause protects unborn babies. Unlike mere Supreme Court justices who declared themselves less competent than doctors and preachers to understand whether a baby of humans is a genuine human, Congress figured it out in 2004.
This protection needs to be pointed out in public and in court as part of stopping courts from grabbing rights-defining and -enforcing authority from the “due process clause”.
For now, here is a list of...
Landmark Abomination Cases
The summaries of each case listed here are excerpted from the cases themselves by justia.com, except for the second and third cases – Slaughterhouse Cases and Cruikshank – which demand more explanation. See https://supreme.justia.com/cases-by-topic/religion and www.supreme.justia.com/cases-by-topic/due-process.
Protecting Slave Owners.
Dred Scott v. Sandford (1857). “An act of Congress that deprives a citizen of the United States [a slave owner] of his liberty or property [his slave] merely because he came or brought his property [his slave] into a particular territory of the United States [a state that outlawed slavery] could hardly be dignified with the name of due process of law.”
Protecting the Ku Klux Klan.
United States v. Cruikshank, 92 U. S. 542 (1876).
Justice Clarence Thomas, writing in McDonald v. City of Chicago, 561 U.S. 742 (2010), writes about Cruikshank:
There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. [It was a privilege of state citizenship, so only the state had jurisdiction to protect it, or the choice to let Democrat slavery-loving terrorists trample it! The 14th Amendment only gave federal authorities jurisdiction over federal rights which did not duplicate state rights or ancient, God-given rights!]
Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553.
In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth. That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. [That is, SCOTUS still follows that warped reasoning.]
More from https://journals.law.harvard.edu/crcl/wp-content/uploads/sites/ 80/2011/09/385_Pope.pdf :
For the first time, the Court held that rights guaranteed in the Bill of Rights (here, the right to assemble peaceably and the right to bear arms) were not among the privileges or immunities of national citizenship [including the rights listed in the Bill of Rights] and thus could not be reached [protected] by Congress under the Fourteenth Amendment.
Mr. Pope challenges the “received wisdom” that the Slaughterhouse majority, three years before, had so held: that none of the rights in the Bill of Rights could be protected from states by Congress.
But there are three ways Cruikshank outdid outdid even the worst of which Slaughterhouse is accused:
(1) Slaughterhouse did not specify the right to assemble peaceably and the right to bear arms as being unprotectable, (2) Slaughterhouse ruled against the butchers partly because they saw the 14th Amendment’s purpose as to protect blacks, not a whites-only fraternity of butchers, and (3) there was no national emergency that might have moved the Slaughterhouse Court to enforce the right to assemble peaceably and the right to bear arms, but there was an environmental emergency caused by the white butchers that cried out for the Court to rule against them.
After election fraud by Democrats, (déjà vu), Republicans, who had controlled the courthouse, organized a defense of it by mostly black Republicans. (Blacks were overwhelmingly Republicans, since the mostly Republican North had gone to war to set them free, while the Democrats who dominated the South had gone to war to keep them slaves.)
Although some were armed, they were peaceably and lawfully assembled, until they were attacked by terrorist Democrats.
....Cruikshank grew out of a pitched battle between black Republicans and white supremacist Democrats. After a dispute over the 1872 election results in majority-black Grant Parish, Louisiana, armed Republicans occupied the Parish courthouse at Colfax. By Easter Sunday, 1873, about 150 [mostly unarmed] black defenders were positioned behind an arc of shallow earthworks. A force of white Democrats, about twice as numerous and far better armed, surrounded the Republican positions. After a three-hour battle, the Democrats prevailed and took a number of prisoners. Some hours later, a contingent of whites led by William Cruikshank murdered most of the prisoners, probably between twenty-eight and thirty-eight.
U.S. Attorney James Beckwith brought charges under the Enforcement Act of 1870. At each stage of the proceedings, the government was met with determined resistance, including beatings and murders of potential witnesses and a concerted effort to shield suspects so effective that — despite the use of an ironclad riverboat and a force of soldiers — only nine of the ninety-eight men initially indicted could be located and arrested.
Prosecutors, grand jurors, and petit jurors all risked their lives to participate, and one witness was nearly killed in a retaliatory knife attack. Black witnesses, corroborated by an undercover white Secret Service agent who had gathered accounts from white participants, testified that the perpetrators had taunted their victims with racial epithets while cutting and shooting them to death. The jury, which included nine whites, one person of color, and two persons of uncertain racial identity, acquitted six of the defendants but convicted the remaining three of conspiracy to interfere with the constitutional rights of two black Republicans [Only two?] ...to assemble peaceably, to bear arms, to enjoy life and liberty unless deprived thereof by due process of law, to enjoy the equal benefit of all laws, and to vote.
...Supreme Court intervention came early, as Justice Joseph P. Bradley, riding circuit, issued an opinion in June of 1874 overturning the convictions. Two years later, the full Court upheld Bradley’s ruling, embracing his reasoning on all but one of the central points.
The effect of this SCOTUS Landmark Abomination Case was to unleash terror across the South for the next few generations. Until the Court unleashed this violence, Republican forces, through the 13th and 14th Amendments and enforcement legislation, had brought peace to the South.
...(After years of murder and torture by white Democrats from the end of the Civil War in 1865 was finally largely suppressed by the work of Congress), By 1872, Frederick Douglass [the eloquent black leader] could observe with satisfaction that the “scourging and slaughter of our people have so far ceased.” Despite the tiny proportion of perpetrators actually imprisoned, the federal government, together with southern witnesses and juries, had reestablished a degree of law and order in most of the South. The election of 1872, the most peaceful of the Reconstruction era, [the decades after the Civil War] saw Republican victories across the South, including the recovery of the Alabama governorship, the only time that democracy was restored in a state that had been “redeemed” by the Democracy. After the election, it appeared that African Americans might be able to exercise their constitutional rights without risking torture and death.
At this juncture, however, the Justices of the United States Supreme Court intervened. (The massacre was in 1873. A single Supreme Court judge voted to acquit the terrorists in 1874. The full Supreme Court agreed with him in their 1876 ruling.)
... The Impact of Justice Bradley’s Ruling on the Ground Immediately after Bradley’s ruling, federal officials predicted that it would unleash white supremacists to resume their campaign of violence across the South, and they were soon proven correct. Whites celebrated in Colfax by holding a mass meeting, riding out in the night, and slitting the throat of Frank Foster, a black man who happened to be walking along the road. Two days later, Christopher Columbus Nash, the first named defendant in the Cruikshank indictment, led an armed force to a nearby town and ejected five Republican officials from office. In August, a crowd of whites that reportedly included Nash marched to the Republican stronghold of Coushatta and murdered three leading African Americans, torturing one to death in front of a crowd. The next day, armed white supremacists executed six white Republican office holders, one of whom had warned that resistance would be futile “thanks to Justice Bradley.” Coushatta marked the first time that white supremacists had staged a massacre of their own race.
Three months after the ruling, on July 4, 1876, the Democrats brought their paramilitary strategy to South Carolina, where the black majority exceeded 60%. “Rifle clubs” converged on the Republican stronghold of Hamburg, defeated an all-black contingent of the state militia, and murdered five prisoners after the battle.
During a subsequent series of paramilitary attacks in majority-black Barnwell County, white supremacists assassinated a black Republican state representative in full view of passengers on a train. Rifle clubs systematically disrupted Republican campaign meetings, rode through Republican towns shooting guns, and openly called for the murder of Republican leaders.
As the election approached, Attorney General Alphonso Taft issued a circular ordering U.S. Marshals to protect voters in “the free exercise of the elective franchise,” and, on October 17, President Grant committed federal troops. By that time, however, the Democrats had established dominance in too many localities. Using a combination of terrorism and election fraud, they managed to prevail in the initial counts from every southern state.
...The Republican-controlled state electoral boards in Louisiana, South Carolina, and Florida invalidated the returns from their states, bringing on the controversy that would eventually result in the “Great Compromise” of 1877. [In which] The Democrats accepted Hayes as President, and Hayes withdrew the federal troops guarding the Louisiana and South Carolina state houses, leaving the Democrats free to stage bloodless coups against the last two Reconstruction governments.
After 1877, the struggle continued, but in a greatly altered landscape. African Americans had lost the capacity to exercise and defend their rights in most of the South most of the time. https://journals.law.harvard.edu/crcl/wp-content/uploads/sites/80/2011/09/385_Pope.pdf
Today SCOTUS casts itself as the champion of individual rights that are trampled by state laws. But Cruikshank was only the second or third of a long line of Landmark Abomination Cases in which SCOTUS blocked states from defending the rights listed in the Constitution and in the Bible so SCOTUS could protect the “rights” it made up to protect perverts and murderers against law-abiding Christians.
The 14th Amendment gave Congress power to enforce the Amendment against states that won’t protect these rights of their own citizens, by passing laws against such attacks, which Congress had done. But in 1873, it was the state, with a Republican majority of its elected leaders, which was trying to protect the right to peaceably assemble by prosecuting Democrat violence. Congress had not only passed a law enabling prosecution of Democrat terror, but had commissioned federal troops to assist local elected authorities in restoring law and order.
It was the Supreme Court which intervened, blocking the state’s power to protect constitutional rights. (That is, if by “state” we mean the government that represents the majority of voters. The white supremacist minority considered itself “the state”, as the majority, by refusing to count blacks as citizens as the 14th Amendment had established.)
Here is a summary of the objects of violence which Southern states had nearly brought under control before the Supreme Court intervened:
Slaves [before the Civil War] had been prohibited from learning to read and write; the...Ku Klux Klan and other secret...societies [after the war] burned the freed people’s new schools and terrorized their teachers.
defense; the societies were particularly outraged when blacks dared to defend themselves against white abuses. They confiscated African Americans’ guns and ransacked their homes for weapons and booty.
Slaves and free blacks had been excluded from the franchise [right to vote]; the societies [after the war] blocked blacks from voting, punished those who nevertheless succeeded, and — following the lead of John Wilkes Booth — attacked and assassinated Republican office holders and grassroots leaders. Slaves had been prohibited from gathering without permission; the societies broke up unauthorized assemblies whenever possible. Slaves had been permitted to conduct religious services only under white pastors; the societies burned black churches and attacked their ministers.
It had been a crime for slaves to lift a hand in self-
The state never asked the Supreme Court for help defending itself from Democrat terrorists. The only reason SCOTUS got involved was because a visiting SCOTUS “circuit” (traveling) judge, Bradley, was given the honor of sitting in on the trial of the Cruikshank defendants. Bradley was given honor, and his presence gave prestige to the trial.
Bradley was given a vote equal to the vote of the district judge. The district judge voted to convict; Bradley voted to acquit. The tie would have to be broken by the full SCOTUS.
A. Justice Bradley’s Circuit Court Opinion in Cruikshank
....Justice Joseph P. Bradley, riding circuit in New Orleans, joined Circuit Judge William B. Woods on the bench during trial. On June 27, 1874, Bradley announced his opinion overturning the convictions. Judge Woods disagreed, splitting the court and ensuring Supreme Court review. ...Even after the [full] Court announced its own opinion in 1876, Bradley’s would sometimes be cited in preference, including by the Court itself....
Forgive me for repeating the following irrationality of the case, but it is so ignorant, that I just want to make sure you don’t think it is a misprint:
Bradley, and later the full SCOTUS ruling, described themselves as ruling for the state against usurpers. But their ruling was against the right of Republicans, elected by the majority of voters, to defend themselves against the murder and terror of Democrats, the minority party. The discrepancy is explained by President Andrew Johnson’s answer to a black delegation, why they should still have no voice in government. (Before the 15th Amendment, which gave them the right to vote.) Johnson had been Vice President under Lincoln.
Johnson explained that “the state” means the white voters before the war, excluding the newly freed blacks. He said the state can’t be forced (by the Constitution) to redefine itself without its permission. The 14th Amendment later redefined the citizenship of “the state” to include the freed blacks, but white Democrats stuck with Johnson’s view.
The “state” jurisdiction that Bradley and Waite defended against federal encroachment was not that of the official state governments constituted by the full citizenry [as] defined in the Fourteenth Amendment, but that of the sovereign people of the South defined by Johnson and the paramilitary insurgents. It was in this sense of the word “state” that later commentators would praise Waite [the Chief Justice who authored the Cruikshank opinion] for terminating the “radical plan to protect the Negro by subjection of the states.”
When I read the Cruikshank ruling, I was confused and amazed that the ruling didn’t describe what anyone did that broke the law. Every other ruling reports both “the law and the facts”; that is, what the defendants did that broke the law, and what law they broke. Not Cruikshank! All we read there is what the laws prohibit, implying someone must have done that, but there is no “who did what, where and when”. Mr. Pope explains why:
Chief Justice Waite wrote for the [full Supreme] Court. At a time when many newspapers were denying the existence of white supremacist terror, [Chief Justice] Waite followed Bradley in refraining from reporting the underlying facts of the massacre.
Finally, we’re done with Cruikshank until we get to Chapter 3’s analysis by Justice Thomas. On with more Landmark Abomination Cases:
Civil Rights Cases (1883) “It is state action of a particular character that is prohibited by the Fourteenth Amendment. Individual invasion of individual rights is not the subject matter of the amendment.”
That was the Justia.com excerpt. This logic would have legalized slavery again! Slaves were not owned by states, but by individuals!
This was no new logic but only repeated the trashing of the 14th Amendment by the Slaughterhouse Cases.
Sterilizing “Imbeciles”
Buck v. Bell (1927) “A state may provide for the sexual sterilization of inmates of institutions supported by the state who are found to be afflicted with a hereditary form of insanity or imbecility.”
This of course violated the rights of those deemed “insane” or stupid. Surely it comes under “cruel and unusual punishment”. But SCOTUS had removed Congress’ voice in the matter, and supported a state in this cruelty.
Had SCOTUS stuck to its 14th Amendment authority it never would have taken the case, because the reason the case existed was to challenge state laws which made sterilizing girls illegal, and the 14th Amendment gives SCOTUS no authority to overturn state laws which protect the rights of state citizens. The Amendment gave Congress, not courts, authority to enforce rights.
The Wikipedia article about this (https://en.wikipedia.org/wiki/ Buck_v._Bell) gives many details about the lies told about Carrie Buck in order to fool the court, which apparently wasn’t that hard to do. It says the ruling has never been overturned, although it is ignored.
But “between 1907 and 1983, more than 60,000 people were involuntarily sterilized” with a boost from the Supreme Court’s 1927 ruling, according to the Amicus Brief filed in Dobbs v. Jackson by AfricanAmerican, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organizations. (www.supremecourt.gov/DocketPDF/19/19-1392/184908/20210726131118652_19-1392_Amici%20Brief%20In%20Support%20of%20Petitioners.pdf)
The brief was defending Mississippi’s standing to protect life, from a district judge who reminded everyone that a Mississippi hospital had sterilized six out of 10 women in the past, so the brief points out that the total casualty list is more like 60,000, and the perp is not the state of Mississippi but the Supreme Court ruling of 1927; and further, the instigator of that Supreme Court ruling was the District Judge’s personal heroine: Margaret Sanger with her Eugenics madness.
The brief’s characterization of the Buck ruling by SCOTUS:
“In Buck, the Court approved the compulsory sterilization of an allegedly ‘feeble minded’ woman who had been falsely adjudged ‘the probable potential parent of socially inadequate offspring.’ Buck, 274 U.S. at 205, 207. In a short opinion, Justice Oliver Wendell Holmes, Jr., joined by seven other Justices, ‘offered a full-throated defense of forced sterilization...as a means to ‘prevent’ society from being ‘swamped with incompetence’”
Outlawing Public Reliance on God
Engel v. Vitale (1962) “State officials may not compose an official state prayer and require that it be recited in public schools, even if the prayer is denominationally neutral, and even if students may remain silent or be excused.” (Still in effect.)
Abington School District v. Schempp (1963) “No state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in public schools, even if students may be excused from attending or participating upon written request of their parents.”
Had SCOTUS stuck to its 14th Amendment authority it never would have taken the case, because the reason these cases existed was to challenge state laws which enabled majorities to publicly acknowledge God without compelling minorities to participate. The Amendment gives SCOTUS no authority to decide this public prayers or Bible reading constitutes “establishment of religion” and then to outlaw it. The Amendment gives Congress alone that authority, and Congress had raised no objection to these acknowledgments of God.
Protecting Contraception
Griswold v. Connecticut (1965) “A state law forbidding the use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.” (Still in effect.)
Had SCOTUS stuck to its 14th Amendment authority it never would have taken the case, because the reason the case existed was to challenge state laws which defended unborn babies against slaughter, and the 14th Amendment gives SCOTUS no authority to overturn state laws which protect the right to life of babies.
The Amendment gave Congress, not courts, authority to enforce rights, and Congress had not objected to saving the lives of tiny humans. Much less had Congress opined that congressmen aren’t smart enough to know if a tiny human is a human.Even if Congress had so opined, the 14th Amendment gives Congress authority to enforce only those rights listed in the Constitution, and the right to kill unborn babies isn’t among them.
Driving God Out of Government
Lemon v. Kurtzman (1971) “To comply with the Establishment Clause, a law must (1) have a secular legislative purpose, (2) its principal or primary effect must neither advance nor inhibit religion, and (3) it must not foster an excessive government entanglement with religion.” (Not still in effect technically, but no clear replacement is in effect.)
The Supreme Court website summarizes the facts: “Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-public elementary and secondary school teachers’ salaries, textbooks, and instructional materials for secular subjects. Rhode Island’s statute was passed in 1969 and provided state financial support for non-public elementary schools in the form of supplementing 15% of teachers’ annual salaries.” https://www.oyez.org/cases/1970/89 Wikipedia adds that this compensation was for teachers “who taught in these private elementary schools from public textbooks and with public instructional materials.”
Had SCOTUS stuck to its 14th Amendment authority it never would have taken the case, because the reason the case existed was to challenge state laws which gave modest compensation to private school teachers to encourage them to teach from public school materials. The 14th Amendment gives SCOTUS no authority to overturn state laws which benefit state citizens.
The Amendment gave Congress, not courts, authority to enforce rights, and Congress had not objected to incentivizing private school teachers to use public school materials.
Even if Congress had thought that counted as “establishment of religion”, the authority of courts given by the 14th Amendment is limited to enforcing a law of Congress. It does not extend to usurping Congress’ authority to enforce rights, which subsumes the power to define the scope of rights.
Protecting Baby Killing
Roe v. Wade (1973) “The Due Process Clause protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Although the state cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a compelling point at various stages of the woman’s approach to term.” (Officially overturned in 2022, but its demonic spirit still possesses many lower court judges.)
Had SCOTUS stuck to its 14th Amendment authority it never would have taken the case, because the reason the case existed was to challenge state laws which defended unborn babies against slaughter, and the 14th Amendment gives SCOTUS no authority to overturn state laws which protect the right to life of babies.
The Amendment gave Congress, not courts, authority to enforce rights, and Congress had not objected to saving the lives of tiny humans. Much less had Congress opined that congressmen aren’t smart enough to know if a tiny human is a human.
Even if Congress had so opined, the 14th Amendment gives Congress authority to enforce only those rights listed in the Constitution, and killing unborn babies isn’t among them. The driving force is not only blood lust and contempt for innocence, but dehumanization of “inferior races” which need to be exterminated: in other words, Eugenics, as pointed out by the Amicus Brief filed in Dobbs v. Jackson by AfricanAmerican, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organizations. (www.supremecourt.gov/DocketPDF/19/19-1392/184908/20210726131118652_19-1392_Amici%20Brief%20In%20Support%20of%20Petitioners.pdf)[What an admission from Justice Ginsberg:] “And as the late Justice Ginsburg once observed: ‘[A]t the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding of abortion.’”
[Now the tie-in to abortion today: The racism, the extermination of blacks especially, is not just in the past. It’s now.] “In Mississippi, 3,005 abortions were reported in 2018. Of those abortions, 72% were performed on black women, compared to just 24% on White women and 4% on women of other races.” [The brief has pages of stats like that.] “The racial disparity in abortions is largely intentional: A study based on 2010 Census data shows that nearly eight out of ten Planned Parenthood abortion clinics are within walking distance of predominantly Black or Hispanic neighborhoods. More specifically, Planned Parenthood intentionally located 86 percent of its abortion facilities in or near minority neighborhoods in the 25 U.S. counties with the most abortions. These 25 counties contain 19 percent of the U.S. population, including 28 percent of the Black population and 37 percent of the Hispanic/Latino population.”
[The relevance to the case before us:] “states have a compelling interesting in ‘preventing abortion from becoming a tool of modern-day eugenics.’ Id. at 1783. And that interest far outweighs this Court’s judicially fashioned distortion of the Constitution.”
[So LC concludes,] “The Court should condemn the district court’s disparaging rhetoric, reverse the decision below, and finally overrule Roe v. Wade and its progeny.”
[This brief associates abortion, abortionists, and abortion-supporting courts, with the Eugenics movement] “THAT ELIMINATES ‘LESS DESIRABLE’ RACES AND CERTAIN CLASSES OF PEOPLE TO EVOLVE A SUPERIOR HUMAN POPULATION.” [It starts off with a shot at the district judge who insulted Mississippi’s motives as part of a long string of racist denials of rights; this Liberty Counsel brief accuses the whole abortion movement, including Roe, Doe, Casey, etc. as the gold standard of racism.]
“The sinister goal of the eugenics movement was to eliminate ‘unfit’ and ‘undesirable’ people—those with mental and physical disabilities as well as certain races.”
The brief points out the rest of the title of Darwin’s racist “Origin of Species” which today’s atheists normally leave out of their proud citations: “or, the Preservation of Favoured Races in the Struggle for Life”! Many quotes are given from Darwin’s 1871 book, “The Descent of Man”, which must be terribly embarrassing for any atheist or evolutionist. He makes a Ku Klux Klan Grand Wizard look like a paragon of intelligent tolerance.
A sure indication that man’s laws have strayed far enough from God’s laws for even children to notice, is when man’s laws and court rulings become just plain irrational. Crazy. Aside from their cruelty, their pure evil, they are internally inconsistent. Hypocritical. They make no sense.
This feature of Roe v. Wade was analyzed in the Amicus Brief filed in Dobbs v. Jackson by Senators Josh Hawley, Mike Lee, and Ted Cruz. [www.supremecourt.gov/DocketPDF/19/19-1392/184947/20210726160225898_2021-07-26%20Hawley%20Amicus%20Brief%20FINAL%20-%20PDFA.pdf]
Some excerpts:
“Justice Scalia called the undue burden standard ‘ultimately standardless’ and ‘inherently manipulable,’ with the result that it ‘will prove hopelessly unworkable in practice.’”
“Asking whether a state interest in protecting fetal life or ensuring informed decisions about abortion outweighs any burdens on the abortion decision is like asking ‘whether a particular line is longer than a particular rock is heavy.’”
“When the lower courts cannot consistently apply—or even understand—a standard after nearly thirty years of development, something is wrong.”
“Casey’s failure to provide adequate guidance for state legislatures has led national abortion rights organizations to immediately file for an injunction any time a law protecting prenatal life is enacted—if only to ‘give it a try.’ See, e.g., Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 218–19 (6th Cir. 1997) (Boggs, J., dissenting) (“The post-Casey history of abortion litigation in the lower courts is reminiscent of the classic recurring football drama of Charlie Brown and Lucy in the Peanuts comic strip.”
https://slate.com/culture/2014/10/the-history-of-lucys-pulling-the-football-away-from-charlie-brown-in-peanuts.html
https://www.cracked.com/article_37831_good-grief-how-lucy-pulling-the-football-away-from-charlie-brown-became-a-signature-peanuts-gag.html
Law can’t have “saving lives” as its purpose
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
(For commentary, see previous entry.)
Legalizing Sodomy
Lawrence v. Texas (2003) “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.” (Still in effect.) Had SCOTUS stuck to its 14th Amendment authority it never would have taken the case, because the reason the case existed was to challenge state laws which outlawed a behavior not only criminalized by the Bible, but which spreads the worst of diseases, cuts human lifetimes twice as short as smoking (about 7 years for smokers, about 15 years for sodomites), raises children in a high suicide and crime environment, and can’t just keep to itself but which flaunts its perversion as publicly as it can get away with, even suing people out of their livelihoods just for declining to publicly “affirm” them.
Isaiah 3:9 For the look on their faces bears witness against them; they proclaim their sin like Sodom; they do not hide it. Woe to them! For they have brought evil on themselves. (ESV)
The 14th Amendment gives SCOTUS no authority to invent “rights” to commit disease-breeding practices that are so disgusting that if you describe them in public even their supporters are angry at you for talking such filth! 14th Amendment authority is limited to protecting rights listed in the Constitution. Sexual perversion isn’t among them. 14th Amendment authority is also limited to enforcement by Congress, and Congress never moved to legalize sodomy. Congress has no authority either to force states to legalize these harms, no “right” to them being “enumerated”.
Although now that society has been so poisoned by courts on the subject, Congress surely would protect sodomy now, if courts withdrew their support. Except that not even Congress has authority from the 14th Amendment to force states to honor rights not found in the Constitution.
So when Christians finally shove SCOTUS back to its constitutional authority, states will absolutely regain the right, once again, to outlaw sodomy, and also to keep from enabling it more, just as much as their voters will permit.
Establishing Sodomite “Marriage”
Obergefell v. Hodges (2015) “The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed outside the state.”
(Still in effect.)
(For commentary, see previous entry.)
Voters decide whether to slaughter babies based on babies’ “value” to voters Dobbs v. Jackson Women's Health Organization (2022) “The Constitution does not confer a right to abortion, and the authority to regulate abortion must be returned to the people and their elected representatives.” This decision overruled Roe and Casey. (Still in effect.)
“The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes, and... ‘courts [should] not substitute their social and economic beliefs for the judgment of legislative bodies.’ ” - Dobbs v. Jackson (2022) [From 1973 through 2022, SCOTUS justices insist that on the question of whether babies of humans are humans, in the words of the Pharisees when Jesus questioned them, “we cannot tell”. Mark 11:33. Besides, they still say, that is a “social value”, though they still won’t deny that it is a fact question, or that Roe correctly treated that as a fact and said “establishing” that fact would “of course” require all states to outlaw abortion.]
This ruling declares that “our decision is not based on any view of when prenatal life as having rights or legally cognizable interests”, rejecting Congress’ finding that “prenatal life” “at every stage of gestation” does have “legally cognizable interests”, which makes killing babies legally recognizable as murder. Congress did not at that time challenge SCOTUS by criminalizing abortions protected by SCOTUS, but they declared the fact that justifies outlawing all abortion, and protected as much as they thought they could. See Finding #7, concerning 18 U.S.C. 1841(d).
This case overturns two previous cases which never would have existed had SCOTUS limited itself to its constitutional authority, so this case would likewise have never existed.
Before SCOTUS added infanticide to its list of Landmark Abomination Cases, states had taken a variety of positions on the right to life of babies. Congress had not previously taken a position on the issue. It could have then, and can now, outlaw all abortions; everyone today acknowledges that power, now that SCOTUS has stepped aside.
But most people today imagine that SCOTUS has the equal 14th Amendment authority to legalize abortion up until voting age, if they want. Not so, if Congress sticks to its 14th Amendment authority, which is to correct state violations of the rights of their citizens. 14th Amendment authority does not extend to forcing states to violate the right to life of babies. The right to murder your own baby is not listed in the Constitution.
Student Punished for Telling the Truth
Current Case. 8/21/2023 email from: Alliance Defending Freedom School officials at John T. Nichols, Jr. Middle School in Middleborough, Massachusetts say they want to create an environment of non-discrimination—but when Liam, in 7th grade, wore a T-shirt to school that read “There are only two genders,” the principal of the school and a school counselor pulled Liam out of class and demanded that he take off his shirt. They even said that if he didn’t remove his shirt, he would be sent home.
Liam missed the rest of his classes that day. He refused to deny what he knew to be true. Even after Liam’s attorney sent a letter to school officials in which he informed them of the constitutional violation, school officials refused to apologize. They even said they would continue to prevent Liam from wearing his shirt.
Soon after this incident, Liam wore another shirt to school that said “There are censored genders,” to protest the fact that his school wouldn’t allow him to express his beliefs. Immediately, Liam was sent to the principal’s office and was told he wasn’t allowed to wear that shirt either.
Since then, Liam hasn’t been permitted to wear either of these shirts even though he hadn’t received any opposition from his classmates, nor had he ever created disruption. In Liam’s words, “Everyone was actually extremely supportive of my decision.” School officials, on the other hand, were not in favor of Liam expressing his opinion. In fact, officials opposed Liam’s speech so much that one official went to Liam’s bus stop to make sure that he was not wearing a shirt that the school did not approve.
In May 2023, ADF attorneys filed a lawsuit against Nichols Middle School. In this lawsuit, attorneys asked the court to rule that the school must halt its violation of Liam’s rights and allow him to wear the shirt to school as the lawsuit moves forward. But the court denied this request.
Middleborough school’s actions against Liam are unconstitutional. Liam was simply expressing his beliefs, grounded in scientific fact.
Liam has been a student of Middleborough Public Schools since kindergarten, and lately he’s seen school administration endorsing ideas about identity that he doesn’t believe. The school even hosted a “Pride Week” during the month of June during which middle schoolers were encouraged to celebrate radical ideologies.
Liam respects free and open debate at his school and did not even protest the school’s “Pride Week”—he merely wanted to contribute to the ongoing conversation about gender at his school.
Author George Orwell once said that “In a time of deceit, telling the truth is a revolutionary act.”
Liam’s brave expression of his belief might as well have been a revolutionary act—based on their reactions, school officials certainly seemed to think so.
That Middleborough school officials would react with such opposition to Liam’s rights and target him on account of his peaceful expression shows just how much we all need to stand for First Amendment rights. If a polite and admirable middle schooler could be silenced so immediately for simply wearing a shirt, who cannot be silenced?