U.S. Constitution Exceptions Clause, and Gay Marriage

Canada Free Press ^ | 02/01/15 | Douglas V. Gibbs

[Sean_Anthony]

States can simply nullify unconstitutional laws and rulings, for how can they be forced to follow these federal laws and rulings if they are illegal from a constitutional point of view, in the first place?

An email I received recently asked about the Exceptions clause in Article III of the United States Constitution. Here is my reply:

Dear XXXXXX,

First, we must establish a proper premise. Part of the problem with dealing with folks that either oppose the Constitution, or have fallen for the “case law” interpretation, is that they don’t understand the argument because they are operating from a different foundational premise.

[Pikachu_Dad]

Doesn’t this article violate all rules of prudence?

The Canadian free press espousing views on the U.S. Constitution?

[WriteOn]

Didn’t know that. Good article.

[Terry L Smith]

dear sean,

you wrote:
“Doesn’t this article violate all rules of prudence?

The Canadian free press espousing views on the U.S. Constitution?”

I suggest you look closely at this long-standing news outlet, and then research the word, ‘irony’, instead of simply writing what you did.

[OneWingedShark]

how can they be forced to follow these federal laws and rulings if they are illegal from a constitutional point of view, in the first place?

Simple: look at the template that the War on Drugs uses.
Nothing in the Constitution authorizes the prohibition of substances at the federal level, for if it did then the Eighteenth amendment would not have been needed to authorize prohibition. (And, in fact, if you look at the cases upon which the precedence upon which the War on Drugs is justified you will find Prohibition cases… which all ought to be legal nullity, as the Twenty-First amendment repealed the Eighteenth.)

[Phlyer]

Sometimes, the only place you can get an "American" view published is in the foreign press. Actually, it's not 'The Canadian Free Press' espousing views, it's a US citizen espousing views in that forum. This is not written as a staff editorial.

The article itself is pretty good, and in fact for most of it I was agreeing completely. For example: The federal government had no authority to interject itself into Roe v. Wade.

I do disagree on the topic of judicial review on one aspect. The US Constitution is our contract with ourselves, and in it we delegate certain authority to the federal government. In particular, we grant to the federal court system 'original jurisdiction' when one of the States is a party to the dispute. Among the authority we delegate to the federal government is the responsibility to see that the rights established in the Constitution are upheld ("not infringed").

In the case of a law passed by either Congress or a State that violated the 'privileges and immunities of a Unites States citizen' (once that amendment was passed) for example, it would be proper for the federal courts to strike it down as unConstitutional. However, there is a world of difference between the very narrow authority to say that something is unConstitutional, (To say, "no" on something) and the activist legislation from the bench of saying what 'yes' must be.

[Amendment10]

Excellent article!

Unless I’ve got the wires crossed, I’d like to find out more about how the Exceptions clause is being used to defend gay marriage.

Also, as mentioned in related threads, pro-gay, PC interpretations of the 14th Amendment’s (14A) Equal Protections Clause (EPC) are also wrongly being used to protect gay marriage. The problem with using the EPC to argue in favor of gay marriage is the following.

Both the Supreme Court and John Bingham, Bingham the main author of Section 1 of the 14A, had clarified that 14A applies only those privileges and immunities that the states have amended the Constitution to expressly protect to the states.

• “3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had [emphasis added].” —Minor v. Happersett, 1874.

• “Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of the United States as guaranteed by the amended Constitution and expressly enumerated in the Constitution [emphasis added].” — Congressional Globe, House of Representatives, 42nd Congress, 1st Session. (See lower half of third column.)

In other words, subjectively reading rights into the EPC as pro-gay activist judges have been doing to argue that state laws banning constitutionally unprotected gay rights are unconstitutional is the wrong way to interpret the EPC. Activist judges actually have no constitutionally enumerated gay rights to apply to the states that have banned gay marriage.

[Jacquerie]

Given the problems of state centrality under the Articles of Confederation, its still a pity the constitution didn't include a state override provision of federal statutes/Scotus decisions. James Madison and Thomas Jefferson drafted the VA/KY Resolutions which howled of usurpations, stepped up to the line, yet did not nullify the Alien and Sedition Acts.

In their opinion, and justifiably, the parties to the constitutional compact have the right to act collectively as judges of the last resort to violations of the charter. To them, when a state acted by itself, it meant minority rule, for local interventions in the general sphere could raise the devil that wrecked the Articles of Confederation. Seven other states condemned the VA/KY Resolutions.

Among Mark Levin's fabulous, recommended liberty amendments are two which provide for repeal/overturn of statutes/Scotus decisions on three fifths vote of the states. Along with the rest of his amendments, our nation is in dire need of these two.

Article V NOW!

[Phlyer]

This arises from the 17th Amendment. Until then the States *could* control the judiciary by not confirming anyone who did not respect States rights and the limitations of the Constitution. It is not a coincidence that about a generation after the 17th Amendment, FDR was trying to 'pack the court' to get his UnConstitutional acts passed, and then didn't need to because he was able to replace enough of the last of the supreme court justices who had been confirmed by a Senate the truly represented the States.

On the other hand, I am not a proponent of an Article V convention. There is no way that can help. If the written words of the Constitution mattered to the statists, then we'd be okay today. The Constitution (particularly the 10th Amendment) provides all the limitation on the federal government that we should need - and it's consistently ignored. More written words would just be ignored as well.

The only people who would be limited by a new Constitution are those who feel we should abide by the written words. Why should we allow even the risk (and it's virtually a certainty) that the statists would get some new words that limited us while ignoring any words we might get that limited them?

[Jacquerie]

I don't mean to appear to be short by posting a link, but your concern is not uncommon, and I posted a vanity in November 2014 which dealt with it.

Just Enforce the Constitution We Have

[Jacquerie]

Oops. I forgot to add, the only worthwhile amendments are structural, like repeal of the 17th, which cannot be ignored any easier than even calendar year elections.

[Phlyer]

. . . the only worthwhile amendments are structural . . .

This is probably true, but there isn't any obvious way to limit an Article V convention in this way. Even if - somehow - the charter under which the convention was convened established this restriction, it doesn't mean that the convention would abide by it.

. . . which cannot be ignored any easier than . . .

Unfortunately, when 'shadows and penumbras' of what's written are used to ignore the plain language of the 10th Amendment, there's no guarantee that even structural changes wouldn't be 'interpreted' into something that we never intended.

For example: If we repealed the 17th Amendment, then what is to stop the States from holding elections for Senator, with the State legislatures then confirming whoever won the election? And if elections can still be used to select Senators, what is to stop the Supreme Court from deciding - based on 'shadows and penumbras' of the 14th Amendment - that the 'privileges and immunities of US citizens' included the right to vote for their Senators?

I guess my bottom line is: If we actually followed the Constitution as written, all the rest of the problems (like excessive government spending and police-state intrusion into our lives) would be 'fixed.' If I somehow had the power to choose, I'd chose to follow what we already have over any amendment that I could name - or any that I've seen suggested by others.