Toward an Annual Article V State Amendments Convention (II)

In Part I, I examined how and why an Annual Article V State Amendments Convention should become a regular feature of the American governing scene.

To further support my thesis, I shall illustrate here the impropriety of allowing scotus to be the sole arbiter of our rights. The right and duty to define them and determine their practical reach ultimately belongs to We The People when acting in our sovereign capacity via Article V. I will show that scotus fails to keep to its own standards of what constitutes legitimate law, rights and liberty interests. To scotus, the notion of rights is a moving target in which social justice is dressed up in the drag of rights which ultimately deny us self-government. If we allow scotus to continue on its current path, to deny self-government and free government, despotism will continue to be enshrined as law.

Central to scotus abuse is its near wholesale rejection of the necessary and proper clause to enumerated congressional powers. By this standard, a law must be necessary to achieve an enumerated end, and should avoid violation of individual or societal rights.

Progressive judicial activism kicked into gear during the New Deal. Among a slew of infamous court decisions was United States v. Carolene Products Co (1938) in which the court did not formally reject the necessary and proper clause, but decided it would generally defer to congress. Scotus wrote, “ The existence of facts supporting the legislative judgment is to be presumed, . . . . (that the law) rests upon some rational basis within the knowledge and experience of the legislators.” Since Carolene, congressional statutes were presumed to be constitutional, both necessary and proper, unless a law obviously impinged a specific and fundamental right, such as those in the Bill of Rights (BOR).

In 1942, the scotus’ Wickard v. Filburn decision, which repudiated the long established limits on regulation of commerce, further strengthened scotus’ Carolene decision. At their cores, Carolene, Filburn, and other related decisions so much as struck the necessary and proper clause from Article I section 8, and replaced it with a presumption of constitutionality for national legislation. No longer need statutes be necessary to achieve an enumerated end. No longer need statutes demonstrate propriety, meaning justness in accordance with the Law of Nature. Instead, the courts would strive to give any law that appears to have a rational basis a free pass to legitimacy.

By the close of WWII, the new standard was a loose conception of necessity and presumed all acts of legislatures to be valid, except when an enumerated right listed in the BOR was infringed. In cases which involve the BOR, the court would demand proof of necessity and propriety. Unless an enumerated right was impacted, all other rights were left to the mercy of legislative majorities. These lesser rights were termed “liberty interests.” Adios to the 9th Amendment.

This contrived rubric didn’t last long. Only twenty years later in Griswold v. Connecticut, (1965) scotus danced around its previous approach. Not only did it not presume the constitutionality of a Connecticut law that prohibited conception-preventing drugs, it created a new right to privacy based on “penumbras, formed by emanations” from specific guarantees in the BOR. Without reliance on the 9th Amendment, which would have the court justify preventing life as being in accordance with Natural Law, scotus attempted to square a circle and fit its social justice whims into a box of its own making.

Going forward from Griswold, scotus would fake its strict scrutiny standard of legislation that affected the BOR. In its place, social justice rights protected by those penumbras and emanations soon became supreme over the BOR and the 9th Amendment.

Lawrence v. Texas (2003) struck down laws in fourteen states. From the majority opinion: “Holding that the Texas statute furthers no legitimate state interest (no rational basis) which can justify its intrusion into the personal and private life of the individual", the court struck down the anti-sodomy law as unconstitutional. Where the presumption of constitutionality? Neither Texas nor any other state relinquished their police powers. The right to sodomy isn’t enumerated in the BOR, but social justice demands it be read into the BOR or, increasingly, the 14th Amendment.

By its own standards, scotus must set a high bar to any infringement of the BOR. Yet does it? Take a slow stroll through the BOR. Pause at each clause. Are they secure? What of Kelo v. City of New London? Here, scotus let its social justice proclivities trash the Fifth Amendment’s taking clause. Instead of subjecting the taking of private property for private use to strict scrutiny as it should have under its own guidelines, scotus felt that the taking was rational, that it served a legitimate government purpose.

In 2008, California amended (Proposition 8) its constitution to define that which all civilizations recognize: marriage is the formal union of a man and a woman. In Obergefell v. Hodges (2015), Chief Justice Roberts utilized the court’s earlier framework, that of presuming constitutionality. He determined the amendment was rationally related to a governmental interest, that of preserving the traditional definition of marriage. However, the majority disagreed. Once again, it elevated something of its own creation, a liberty within the 14th Amendment for everyone to “define and express their identity.” Obergefell v. Hodges denied the sovereign people of California their God-given Natural Right to comply with His laws.

Let’s return to the purpose of this squib. Through perversion of the necessary and proper clause, scotus has not only expanded the breadth and reach of congressional statutes, it has taken upon itself to devastate the BOR and replace it with whatever passes for fuzzy social justice rights of the moment. Recall the right to privacy between a woman and her doctor? How can there be any privacy for anyone when allmedical data is entered into a standardized HHS database? What passed for social justice in 1965 doesn’t quite work toward the leftist goals of 2016, so it must be ignored today. In sum, scotus has proved itself to be not only a poor defender of our unalienable rights, it is the first violator and worst enemy of its own shifting social justice standards.

Scotus isn’t sovereign; we are. It is up to We The People to discern, assert and defend our Natural Rights and not accept the passing fancies of a majority of Ivy League lawyers. Alexander Hamilton said as much in The Federalist #33:

The price of liberty truly is eternal vigilance, and the Framers provided the institution to secure it, an Article V state convention to propose constitutional amendments. We cannot fully comprehend today the effect that a regularly occurring convention would have on those convinced they are beyond our reach. Let’s do it.

We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign the COS Petition.

Reference:
Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Princeton, NJ: Princeton University Press, 2004. Book.

http://www.thisnation.com/library/antifederalist/78-79.html

http://www.thisnation.com/library/antifederalist/80.html

http://www.thisnation.com/library/antifederalist/82.html

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only, so that a series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion. The people will be told that their state officers, and state legislatures, are a burden and expense without affording any solid advantage; that all the laws passed by them might be equally well made by the general legislature. If to those who will be interested in the change, be added those who will be under their influence, and such who will submit to almost any change of government which they can be persuaded to believe will ease them of taxes, it is easy to see the party who will favor the abolition of the state governments would be far from being inconsiderable. In this situation, the general legislature might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution. If the states remonstrated, the constitutional mode of deciding upon the validity of the law is with the supreme court; and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees. Had the construction of the constitution been less [more?] with the legislature, they would have explained it at their peril. If they exceed[ed] their powers, or sought to find in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, . . . Indeed, I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice. But in order to enable them to do this with the greater facility, those whom the people choose at stated periods should have the power in the last resort to determine the sense of the compact. If they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil. But when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not constitutionally accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.

BRUTUS

Kangaroo court with kabuki theater collectivism has subjugated states and locked out liberty.

Thanks for your work, Jacquerie.

—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Declaration and Constitution...

Best friends until one becomes a criminal.

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