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The Lone Man Resisting Judicial Tyranny
The Stand ^ | Monday, May 9, 2016 | Bryan Fischer

Posted on 07/03/2016 12:41:19 PM PDT by T Ruth

The Constitution gives absolutely no authority, none, to the federal government to dictate marriage policy to the states. ***

***

When the Obergefell case was decided by the Supreme Court, its ruling legally applied only to the plaintiffs before it, as is true in any case before any court. The concept of “judicial review” - in which the Court, and not Congress, gets to decide what the law is - is not found in the Constitution anywhere. It was invented out of the ether by Chief Justice John Marshall in 1803 as a way for the Court to grant dictatorial authority to itself over the freedom-loving Thomas Jefferson. 

***

The Supreme Court’s authority is only supreme in cases in which it has jurisdiction according to Article III, and only with respect to the plaintiffs before it. Judge Moore quite correctly observed that Alabama was not a litigant before the Court in the same sex marriage controversy that led to the Obergefell opinion. So while the 16 couples who were before the Court in Obergefell can get their “marriage” licenses, its ruling has no binding authority on the state of Alabama. 

Abraham Lincoln said exactly the same thing with regard to the obscene Dred Scott opinion. He accepted the Court’s ruling with regard to Scott and his owner, but flatly denied that the Court’s ruling had any binding or precedential effect anywhere else in the Union. 

So Judge Moore fulfilled his sacred oath of office to uphold the federal Constitution (which leaves marriage to the states) and the Alabama state constitution (which defines marriage as a man-woman institution) by declaring that same-sex-marriage is still illegal in the state of Alabama. 

***

(Excerpt) Read more at afa.net ...


TOPICS: Constitution/Conservatism; Culture/Society; Government; Politics/Elections; US: Alabama
KEYWORDS: 1803; abrahamlincoln; constitution; courts; dredscott; homosexualagenda; jefferson; johnmarshall; lincoln; marriage; marshall; moore; obergefell; roymoore; scotus; statesrights
The writer provides a good summary of the law on this important issue.
1 posted on 07/03/2016 12:41:19 PM PDT by T Ruth
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To: T Ruth

We live under Marshall Law....


2 posted on 07/03/2016 12:45:03 PM PDT by Paladin2 (auto spelchk? BWAhaha2haaa.....I aint't likely fixin' nuttin'. Blame it on the Bossa Nova...)
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To: T Ruth

Eventually it comes down to a man with a gun.


3 posted on 07/03/2016 12:50:54 PM PDT by 2banana (My common ground with terrorists - they want to die for islam and we want to kill them)
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To: Paladin2

I see what you did there ...


4 posted on 07/03/2016 1:02:45 PM PDT by smokingfrog ( sleep with one eye open (<o> ---)
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To: T Ruth

Pray for Judge Moore.


5 posted on 07/03/2016 1:07:04 PM PDT by thecodont
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To: T Ruth; All
From the referenced article:
"The Constitution gives absolutely no authority, none, to the federal government to dictate marriage policy to the states. You can read the Constitution left to right, right to left, backwards, upside down while hanging from the ceiling, and in Sanskrit and you will not find the word “marriage” in there anywhere."

Mr. Fischer overlooks that all that you need to do to find “marriage” in the Constitution is to order a pair of “ACME magic reading glasses” from the Supreme Court's online souvenir and gift shop. /sarc

Remember in November !

Patriots need to support Trump by also electing a new, state sovereignty-respecting Congress that will work within its constitutional, Article I, Section 8-limited powers to not only support Trump’s vision for making America great again for everybody, but will also fire state sovereignty-ignoring activist justices.

6 posted on 07/03/2016 1:14:49 PM PDT by Amendment10
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To: T Ruth
The Constitution gives absolutely no authority, none, to the federal government to dictate marriage policy to the states. You can read the Constitution left to right, right to left, backwards, upside down while hanging from the ceiling, and in Sanskrit and you will not find the word “marriage” in there anywhere.

Sigh. Does anyone EVER want to know how the Constitution REALLY works? It's fun to rant about how out of control the judges are, vents the spleen, makes you feel righteous. But then when you're done, what have you achieved? Nothing.

But how are problems fixed - ALL problems? By understanding them, that's how. And people DON'T understand the Courts. Everyone is lazy - they tell each other, and themselves, that the Courts are "out of control." And what they mean by that - and examine this inside yourself to see if I'm right here - is that judges or justices will rule without rhyme or reason solely to fulfil political goals, mainly liberal political goals. Right? Isn't that what you think?

Well what if you're wrong, would that matter? What if there was a LEGAL SECRET that you didn't know, and that no attorney or judge would tell you, because they make their living charging you (both ways) for you NOT knowing. That would make sense, right - that would be a good reason for them not to tell you. Right?

Well then, what if I told you, right now, what that legal secret is. What the MECHANISM is that ALL the Courts, and judges and justices use, and that EVERY SINGLE LAWYER KNOWS - but you don't. Yep, right here, right now. Would you give a damn? Would you pay attention? Most importantly, would you value it? We'll see, because here it comes, ready or not.

Here it is: The power of the federal government to reach into every tiny little thing, is by presumng that every little thing is a corporation. You, your life, your marriage, your house, your job everything - all a corporation. And the place where they've interpreted the Consitution allows them to make that presumption, is in the 14th Amendment.

That's it. That's the big secret. That's what THEY know, and YOU don't. That's what they use for EVERYTHING.

And the REASON they do that is because CORPORATIONS HAVE NO RIGHTS. Corporations are made BY the government, and so, as their creator, the government OWNS them. They only have government-granted privileges, and they exist solely at the pleasure of the government. That's literally what they are - slaves. I'm not talking about GM and Ford. I'm talking abut the LEGAL CONCEPT of a corporation.

So what the Courts have done is allowed the government to PRESUME you, or your life, or your marriage, is a corporation. Or that it is a corporate type entity of whatever kind. Or that you are, when you engage in such activity as they want to control. Because since people can freely engage in corporate activities, and work on behalf of corporations, then how is the government to know whether you are doing that - and therefore have privileges, and no rights - or not, and hav your rights intact? Answer: They PRESUME you're acting as a corporation, and require YOU to say you are NOT. And so, if you don't challenge your corporate status and refuse it, they assume you ARE, in effect, freely and of your own will, a corporation or acting on behalf of one. And then they pounce, because they own ALL corporations through the laws that they create defining them.

So: Presumption that marriage is a corporate act -> supported by the 14th Amendment -> waiting for you to say your marriage is not incorporated -> receiving into evidence a marriage license issued by the government to incorporate marriages -> government control of the definition of CORPORATE marriage.

So where is the definition of a NON corporate marriage, work, life, person, or anything else? Well, it's hidden, that's where it is. Because if you found it, the government couldn't control you. So it's hidden in sections of law you'll never look in, and in definitions you'll never find, and legal constructions you don't know can be made. So fighting this means people have to learn such things. Yes it's hard. But look around you - what we have now is the result of not doing that work. And it won't change until we do. Not one or two of us - but millions of us. Only then will we be free again, no matter who is president.

And here's why the United States of America is so very, very precious: because ONLY HERE is this a secret. Only here can we learn, and dig, and discover where the law limits corporations, and therefore where we are actually free. ONLY HERE. Everywhere else YOU CAN'T DO IT. Because everywhere else, YOU HAVE NO RIGHTS. Everywhere else, you dig and dig and dig, and you're still a corporate entity - by law. A "subject."

REFUSING SUBJECT STATUS is what the Founders gave us - THAT. And that's what the 4th of July is REALLY all about. As Franklin famously said, "A Republic, madam, if you can keep it." Well, CAN we keep it? The question remains unanswered to this day.

7 posted on 07/03/2016 1:22:30 PM PDT by Talisker (One who commands, must obey.)
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To: T Ruth
It was invented out of the ether by Chief Justice John Marshall in 1803

And has stood as precedent for well over 200 years. It will not -- repeat NOT -- be overturned, so you might as well shout into the wind.

8 posted on 07/03/2016 1:31:32 PM PDT by IronJack
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To: T Ruth

For more on Judge Moore and the attack upon him: http://www.freerepublic.com/tag/roymoore/index?tab=articles

Also these links:

Feb 3, 2015 - Alabama Chief Justice Roy S. Moore Memorandum to Alabama Probate Judges

http://media.al.com/news_impact/other/Chief%20Justice%20Moore%27s%20memorandum.pdf

- - -

Mar 3, 2015 - Opinion of the Alabama Supreme Court upholding the constitutionality of the Sanctity of Marriage Amendment and the Marriage Protection Act

https://acis.alabama.gov/displaydocs.cfm?no=642402&event=4AN12324A

- - -

Jan 6, 2016 - Administrative Order of the Chief Justice of the Alabama Supreme Court

https://lc.org/PDFs/Attachments2PRsLAs/2016/010616ALAdminOrder.pdf

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Mar 4, 2016 - Order of the Albama Supreme Court

http://cases.justia.com/alabama/supreme-court/2016-1140460.pdf?ts=1457109007

= = =

Jun 21, 2016 - Motion to Court of the Judiciary (COJ) to dismiss charges brought by the Judicial Inquiry Commission (JIC)

http://lc.org//PDFs/Attachments2PRsLAs/2016/062116CJMooreMotiontoDismiss.pdf

- - -

June 22, 2016 - Judicial Inquiry Commission motion to the U.S. District Court for the Middle District of Alabama Northern Division to dismiss Complaint filed by the Hon. Roy S. Moore, Chief Justice of the State of Alabama

https://docs.google.com/gview?url=http://WBRC.images.worldnow.com/library/9dd3f3c1-5631-4056-a23d-a419a3f40da0.pdf&embedded=true

- - -

June 23, 2016 - Motion For Oral Argument Before the Entire Court on the Pending Motion to Dismiss

http://judicial.alabama.gov/judiciary/COJ46MotionForOA_06_23_2016.pdf

= = =


9 posted on 07/03/2016 1:34:34 PM PDT by Ray76 (The evil effect of Obergefell is to deprive the people of rule of law & subject us to tyranny!)
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To: T Ruth

Of course, the problem is that we have to choose whether to have a Supreme Court which has the final say over the constitutionality of statutes. How can we deny the Court’s power to rule on the constitutionality of marriage laws but preserve the Court’s power to rule on the constitutionality of anti-gun laws? Either the Court will have the final say or it won’t. For more than 200 years, the Court has been claiming and exercising that power.


10 posted on 07/03/2016 1:40:26 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: T Ruth
The enemies of freedom have used such dishonest and manipulative devices to justify to the American people other innovations on the ideas and principles of the Constitution. Witness their convenient misquoting of Marshall in support of the counterfeit idea of a "living constitution," as documented and explained in the following essay by Dr. Walter Bern, published in the Bicentennial Volume, "Our Ageless Constitution," and titled, Do We Have a Living Constitution?

Do We Have A Living Constitution?

“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act.” – Alexander Hamilton

In the first of the eighty-five “Federalist Papers,” Alexander Hamilton emphasized that:

… it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government fromreflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even know ­ ledge of their sentiments, can warrant their represen ­ tatives in a departure from it prior to such an act.”

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature-even an act subsequently authorized by the judiciary-is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

Neither civil society (or as Madison puts it, “the people in their social state’) nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life – or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became “the People of the United States” in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established “this Constitution for the United States of America.”

In this formal compact THE PEOPLE specified the terms and conditions under which “ourselves and posterity,” would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

The Framers had designed a constitutional structure for a government which would be limited by that structure – by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit 11 within which such systems are to revolve” And to the judges they assigned the duty, as “faithful guardians of the Constitution,” to preserve the integrity of the structure, for it is by the structure (more than by “parchment barriers”) that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would “live” as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton’s words in Federalist No. 1 and conclude that, under some conditions, some “societies of men” are capable of “establishing good government,” but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time – of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions – but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role – in some cases a major role – in the writing of their countries’ constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them – conspicuous among these the people of America – have an experience of stable constitutional govern­ment. In that sense, we surely have “a living Constitution.” That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As A Thing Without Form or Substance: New Definitions Of ‘Living’

In the language of many today, a “living Constitution” is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its “flexibility” or better, its “adaptability.” It is this quality ” ­ adaptability” that allows it to be “kept in tune with the times,” as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution – one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the “judicial power” school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

“Let’s be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called “landmark decisions” of both ofU.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered “right” simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

“In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history ..”

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere – for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

The ‘Living Constitution’ school and the ‘Judicial Power’ school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. ‘Judicial Power’ is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of “creating” constitutional rights (Moore v. City of EastCleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his bookTaking Rights Seriously . It is Dworkin who has purportedly given this sort of “constitutional lawmaking” what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been “a fusion of constitutional law and moral theory,” and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion “has yet to take place.”

As it turns out, however, the moral theory he propounds, and which he hopes to “fuse” with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin – justice John Marshall. A former president of the American Political Science Association argues that the idea of a ” ‘living Constitution’…can trace its lineage back to John Marshall’s celebrated advice in McCulloch v. Maryland (1819): ‘We must never forget that it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs’ ” The words quoted are certainly Marshall’s but the opinion attributed to him is at odds with his well-known statements that, for example, the “principles” of the Constitution “are deemed fundamental [and] permanent” and, except by means of formalamendment, “unchangeable” (Marbury v. Madison). It is important to note that the discrepancy is not Marshall’s; it is largely the consequence of the manner in which he is quoted – ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify “all the subdivisions of which its great powers will admit;” if it attempted to do so, it would “partake of the prolixity of a legal code” (McCulloch v. Maryland), In the second statement, Marshall’s subject is the legislative power, and specifically the power “to make all laws which shall be necessary and proper for carrying into execution” the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be ‘appropriated’ by the living Constitution school to support their erroneous views. Marshall’s and the Founders’ concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

At this point, it is well to remember Hamilton’s strong warning about unwarranted presumptions by those in government of a power to depart from the people’s established form as quoted in the title of this essay.

Marshall referred to the “principles” which he called “permanent,” and the “basis on which the whole American fabric has been erected” Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to “…allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.” It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of “human affairs.”

Ironically, the very case cited by the “living Constitution” school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill “for raising revenue,” but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto – Who would, in principle, deny the need of checks on administrative agencies? – but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called “presentment clause” in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of “enacting” the pending ERA. “But Brennan was accustomed to having the Court out in front, leading any civil rights movement,” a major publication stated. Hence, we are further told, he saw “no reason to wait several years for the states to ratify the amendment.” No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use “convenience” or “frustration” as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: “the whole American fabric has been erected.”

We are told that it is unreasonable – even foolish – to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: “Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported.” The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a “Living Constitution” – but let that not be claimed by those who would use the language to subvert the structure.


Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates,1987) Part VII:  ISBN 0-937047-01-5: (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns’ article by the same title in National Forum , The Phi Kappa Phi Journal, Fall 1984)

11 posted on 07/03/2016 1:57:56 PM PDT by loveliberty2
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To: Ray76

Thanks for your links.


12 posted on 07/03/2016 2:13:08 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: Tau Food
How can we deny the Court’s power to rule on the constitutionality of marriage laws but preserve the Court’s power to rule on the constitutionality of anti-gun laws?

I don't think you can. The truth is the Court does not have the authority -- right now it does have the power -- to repeal laws. However, the Court's exercise of that power is illegitimate. It is not a super-legislature, and new institutional responses will have to be developed to deal with the question of unconstitutional laws.

13 posted on 07/03/2016 2:17:14 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: loveliberty2

Thanks for your post (but it was a long read). The author makes good points.


14 posted on 07/03/2016 2:22:07 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: T Ruth
However, the Court's exercise of that power is illegitimate. It is not a super-legislature, and new institutional responses will have to be developed to deal with the question of unconstitutional laws.

Well, in fairness to the Supreme Court, it never claimed to be a super-legislature. It claimed that determining the constitutionality of a statute is a necessary judicial function:

"If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each."

In short, the Court's argument is that the judicial branch is authorized only to utilize constitutional laws in the performance of its judicial duties and that it would be improper (in fact, unconstitutional) for the judicial branch to apply statutes which are unconstitutional. The Court did not, in Marbury address the question as to whether its ruling was limited to the case before it or should have broader application.

15 posted on 07/03/2016 3:14:38 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Tau Food
The problem begins with Justice Marshall's false statement: It is emphatically the province and duty of the Judicial Department to say what the law is.

Under Article I, section 1, "All legislative Powers herein granted shall be vested in a Congress . . .." Since all legislative powers are vested in Congress, that means no legislative powers are vested in any other branch.

In fact it is the province and duty of Congress to say what the law is. That is called legislation. The repealing of a law is a legislative function. Who would deny that Congress has the power to repeal laws? Since Congress has that power, the Court does not have it.

Therefore as far as the federal government goes, that function is vested in Congress not the courts. So, the Court can interpret a law, including the Constitution, in deciding a case or controversy, but to declare a law void is not within the Court's delegated powers.

So, just as the article which I posted said: "Judge Moore quite correctly observed that Alabama was not a litigant before the Court in the same sex marriage controversy that led to the Obergefell opinion. So while the 16 couples who were before the Court in Obergefell can get their “marriage” licenses, its ruling has no binding authority on the state of Alabama."

The Court has the delegated power to decide cases and controversies, even incorrectly, as in Obergefell. But the decision only has proper effect between the parties to the lawsuit.

16 posted on 07/03/2016 3:41:53 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: T Ruth
Obviously, the Court's answer is that it is an equal branch of the government and that it is the equal branch of the government that is obligated to decide the cases before it. Your argument seems to be that the legislature (another equal branch of the government) has the authority to tell the judicial branch how it is to perform its functions, that the legislature can force the judicial branch to utilize and apply statutes that the legislature passes whether or not the legislature has the power to pass those laws under the Constitution.

The Court put the argument slightly differently. The Court said that they were faced with two inconsistent documents - the statute improperly passed by the legislature and the Constitution. The Court argued that it could not enforce both because they were inconsistent and that they were forced to choose whether to enforce the Constitution or instead to enforce a statute that was in violation of the Constitution. The Court chose to enforce the Constitution.

Both sides of the argument played word games. The question of judicial review was inevitable and it probably should have been addressed in the Constitution. But, it wasn't.

Marshall's genius was to claim this power in a case that gave the executive branch a victory. Since the executive branch won the case, there wasn't anything that President Jefferson could do. The Court did not require that Jefferson do anything to enforce the Court's judgment. So, Jefferson had to just watch and seethe.

17 posted on 07/03/2016 3:58:21 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Tau Food
Your argument seems to be that the legislature (another equal branch of the government) has the authority to tell the judicial branch how it is to perform its functions, that the legislature can force the judicial branch to utilize and apply statutes that the legislature passes whether or not the legislature has the power to pass those laws under the Constitution.

No, that's not my argument. The courts have plenary power to decide cases however they choose; what they cannot do is declare statutes void.

The question of judicial review was inevitable and it probably should have been addressed in the Constitution. But, it wasn't.

It wasn't addressed because the Founders could not agree on a solution. It is a knotty problem. However, the pragmatic usurpation of power by the courts has outlived its usefulness. The current situation is simply intolerable. A new set of institutional remedies has to be developed.

18 posted on 07/03/2016 4:50:21 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: Amendment10

>
Patriots need to support Trump by also electing a new, state sovereignty-respecting Congress that will work within its constitutional, Article I, Section 8-limited powers to not only support Trump’s vision for making America great again for everybody, but will also fire state sovereignty-ignoring activist justices.
>

One not need wait, nor should one even LOOK to Fedzilla for ‘resolution’.

Affirmation of the 9th/10th are all that are needed. IE: Each and EVERY State need only flex their Constitutional muscle and tell Fedzilla, and the Court, to F*-off.

Unfort., IMO, that would start the tumble of this house-of-cards they call a ‘Democracy’ (of the last 100+yrs). I do not foresee any such articulation happening anytime soon (and will gladly eat crow should it ever come to pass).


19 posted on 07/03/2016 6:31:45 PM PDT by i_robot73 ("A man chooses. A slave obeys." - Andrew Ryan)
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To: T Ruth; Tau Food

>
How can we deny the Court’s power to rule on the constitutionality of marriage laws but preserve the Court’s power to rule on the constitutionality of anti-gun laws?

I don’t think you can. The truth is the Court does not have the authority — right now it does have the power — to repeal laws. However, the Court’s exercise of that power is illegitimate. It is not a super-legislature, and new institutional responses will have to be developed to deal with the question of unconstitutional laws.
>

There is *only* THREE things needed for said response: lamp-post, rope and the will to use them together.

Failing that, the last ‘box’ of necessity (as soap and ballot have failed).


20 posted on 07/03/2016 6:38:16 PM PDT by i_robot73 ("A man chooses. A slave obeys." - Andrew Ryan)
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To: Tau Food

>
The Court did not, in Marbury address the question as to whether its ruling was limited to the case before it or should have broader application.
>

No, the ‘Court’ *never* addresses such. It finely choices and cherry-picks that which advance its own narrative.

It used precedent instead of the simple English of the Constitutions as its basis of rulings. Never does it deal in absolutes but, like the lawyer-speak of their teachings, weave their pretzel-logic of verbiage ‘til even the word ‘NOT’ does not mean what it means.

No, the Commerce clause and/or General Welfare somehow BROADEN A1S8 constraints; regardless of all other verbiage (5th/9th/10th), ‘shall not be infringed’ is usurped by ‘govt Right/police powers’ (as if govt has ‘RIghts’)


21 posted on 07/03/2016 6:53:32 PM PDT by i_robot73 ("A man chooses. A slave obeys." - Andrew Ryan)
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To: Talisker

The Federal government does not issue marriage licenses.


22 posted on 07/03/2016 7:15:25 PM PDT by piasa
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To: piasa
The Federal government does not issue marriage licenses.

No, but they define the legal terms of marriage licenses. That's more than enough.

And think about it - if there was no marriage license connection with federal law, what would it matter that the SCOTUS legalized gay marriage at the federal level?

23 posted on 07/03/2016 7:36:09 PM PDT by Talisker (One who commands, must obey.)
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To: T Ruth
No, that's not my argument. The courts have plenary power to decide cases however they choose; what they cannot do is declare statutes void.

Well, let's consider what you are saying. Suppose the Congress were to pass a law making it a felony to own or possess a firearm (even in the home) and a provision requiring federal officials to begin confiscating firearms. Let's suppose that the President then vetoes the statute because he believes that the statute is unconstitutional. Let's suppose that the Congress then overrides the President's veto by passing it again with the support of 90% of the members of Congress.

Would the President be acting appropriately if he refuses to confiscate weapons because he believes the statute to be unconstitutional?

If it would be appropriate for the President to refuse to enforce the statute by declaring it unconstitutional, why would it be inappropriate for a court to refuse to apply the same statute by declaring it unconstitutional?

In other words, why should it be assumed that the Congress should have the last word in determining constitutionality?

Since the President has sworn to preserve and protect the Constitution, isn't he required by his oath to refuse to enforce that statute? And, aren't judges (who take a similar oath) required to refuse to treat that statute as a valid law?

These are some of the problems that result from a branch of government exceeding its constitutional authority. I don't claim to know what the proper answers are, but I know that those answers aren't obvious or simple. If the drafters of the Constitution had included language that required the executive and the judiciary to enforce and apply any statute passed by the Congress (whether constitutional or unconstitutional), I am not at all sure that we would have a system better than the system that we have right now.

24 posted on 07/03/2016 10:42:06 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Talisker
"A Republic, madam, if you can keep it." Well, CAN we keep it? The question remains unanswered to this day.

No I think it has been pretty much answered, we will know for sure in November.

25 posted on 07/03/2016 10:57:26 PM PDT by itsahoot (Trump kills PC-Hillary kills USA-Pick one.)
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To: Tau Food
Thanks for your thoughtful responses. They point up why this issue is so difficult that the Founders could not agree on a solution. However, the difficulty not withstanding, we must press through to new political understandings and arrangements. The current situation is not to be tolerated.

Would the President be acting appropriately if he refuses to confiscate weapons because he believes the statute to be unconstitutional?

If the President has a reasoned opinion from his Attorney General that the statute is unconstitutional, then, yes, he should refuse to enforce the law.

why should it be assumed that the Congress should have the last word in determining constitutionality?

I do not assert that Congress should have the last word. However, if one of the three branches must have the last word, then better Congress or the President than the Court because:

a) Since governments derive their just powers from the consent of the governed, Congress and the President are more legitimate repositories of power because they are elected, as opposed to the judges who are not elected; and

b) The people have a chance to change Congress and the President frequently and regularly, whereas judges are appointed for life.

Thus the Court is the least suitable of the three branches to have the last word on what the law is.

Rather than give any of the three branches the last word, however, it would be better to give the people the last word within the framework of the republican government established by the Constitution. See the example below.

Since the President has sworn to preserve and protect the Constitution, isn't he required by his oath to refuse to enforce that statute?

As per above, yes.

And, aren't judges (who take a similar oath) required to refuse to treat that statute as a valid law?

Yes. The judges can refuse to give the law validity in deciding a case or controversy. They cannot, however, declare the law invalid for other parties or future cases.

To work with your example: Suppose the Congress were to pass a law making it a felony to own or possess a firearm (even in the home) and a provision requiring federal officials to begin confiscating firearms. Contrary to your example, however, let's suppose that the President signs and enforces the law.

Suppose now Hapless Harry is arrested and convicted for possession of a firearm. He appeals all the way to the Supreme Court, which reverses his conviction. Harry is now free. However, the law is still on the books and the President can still enforce it.

Suppose Luckless Larry is arrested for possession of a firearm. The trial court may refuse to convict, following the Supreme Court, or it might convict, in which case Larry can appeal and ultimately have his conviction reversed. But, the law is still on the books and the President can still enforce it.

Suppose now Conceal Carrie is arrested for possession of a firearm. The trial court may refuse to convict, following the Supreme Court, or it might convict, in which case Carrie can appeal and ultimately have her conviction reversed.

The question will soon become: who is first going to get tired of this fol-de-rol? The legislature could repeal the law; the executive could cease to enforce it (which raises the question: may the President refuse to enforce a law which he believes, supported by a reasoned opinion from the Attorney General, is constitutional, or does the AG have to revise his opinion?); or the judiciary could change its opinion of the constitutionality of the law (a more likely occurrence in the case of a 5 to 4 decision).

All of these questions will devolve into a question of the support of the people. If a large majority of the people really want this law, then the executive, and the legislature which passed the law, will feel that support and persevere. On the other hand, if a large majority of the people don't really want this law, then the executive and the legislature will feel it at the ballot box. In either case, it becomes a political question, rather than having the Supreme Court act as super-legislature telling the people how they may govern themselves.

26 posted on 07/04/2016 4:49:23 PM PDT by T Ruth (Mohammedanism shall be defeated.)
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To: T Ruth
Yes, you're correct to point out that the Supreme Court's justification in Marbury does not support a power to declare a law unconstitutional in a global sense. However, on behalf of the Court it might be pointed out that the Court did not clearly demand that other institutions beyond the judiciary follow its lead. It is the executive branch that makes the decision on behalf of the executive branch to defer to the judiciary and it is the legislative branch that makes the decision to do the same thing. Of course, it would be a more confusing landscape if every branch of the government were to begin interpreting the Constitution differently.

And, you're right about how a lot of these problems ultimately get resolved. The Congress can adjust the jurisdiction of the judiciary. The Congress can impeach and remove a president. The president and the Congress control the makeup of the judiciary and also the budget of the judiciary. The judiciary can and does refuse to participate in the enforcement of laws it believes to be beyond the power of the legislature, etc, etc.

An argument that can be made on behalf of the judiciary is that the judiciary must depend upon the executive to enforce any of its affirmative orders and must depend upon the legislature to pay for its building, its books, its computers, and even its yellow pads. It really has nothing but its ability to persuade others to follow its lead. And, I suspect that the judiciary is acutely aware of its institutional weaknesses and limitations.

Somehow, we muddle through. ;-)

27 posted on 07/04/2016 8:02:58 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Ray76

Jul 26, 2016 - REPLY TO THE RESPONSE OF THE JIC TO CHIEF JUSTICE MOORE’S MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO THE JIC’S CROSS-MOTION FOR SUMMARY JUDGMENT

https://www.lc.org/PDFs/Attachments%20to%20PRs%20and%20LAs/2016/072716MooreMSJReplyResponse.pdf


28 posted on 07/28/2016 3:30:11 PM PDT by Ray76 (The evil effect of Obergefell is to deprive the people of rule of law & subject us to tyranny!)
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