Hijackers in Black Robes

How has homosexual “marriage” gone from a theory in the homosexual agenda to the performance of ceremonies of dubious legality in a number of jurisdictions on both coasts? It is notable that no such ceremonies have cropped up in fly-over country between the coasts. The source of all these is a single decision, by a 4 -3 vote, of the Supreme Judicial Court of Massachusetts, the highest court in that state.

Admittedly, the problem is metastasizing because of the actions of mayors and city councils in other states. But without the example of the Massachusetts court I doubt that those local officials would have been emboldened to thumb their noses at the laws of their jurisdictions and authorize homosexual marriages elsewhere.

And though homosexual marriage is a large problem that reaches into all parts of the country, the underlying problem is much larger than that. First, why does a decision by a Massachusetts court present a national problem? That’s due to the Full Faith and Credit Clause of the US Constitution, which requires all states to recognize the official acts of other states. And a marriage certificate from one state is clearly represents an official act, when that couple travels to another state.

There is a common denominator between the Massachusetts “marriage” decision this year and the US Supreme Court decision late last year that the Campaign Finance “Reform” Act did not violate the First Amendment, even though that Act flatly told citizens and groups of citizens that they could not run certain broadcast ads in the months before primary and general elections. I don’t mean to neglect other courts in other jurisdictions that have also contributed to this legal house of horrors. Last year the New Jersey Supreme Court issued a decision allowing a Democrat State Senator under an ethical and criminal cloud to drop out and be replaced by another candidate AFTER the deadline to do that had passed under the plain language of the state’s election law. That court had done the same thing the year before with respect to a US Senate candidate replacement. How could there be a tight connection between these three state decisions and a federal one, on radically different cases?

In first two instances, a bare majority of the judges/Justices on the court decided that a long-held understanding of their respective constitutions would be thrown out, and replaced with something new that the majority had just invented (excuse me, discovered) in those constitutions. In both of those cases there was a vigorous dissent, objecting that the majority was doing what no judge/Justice should do, that they were changing their constitutions in a way that belonged only to the amendment process. To the shame of the New Jersey Supreme Court, it generated no dissent that the law means what the law says, and that the court should both obey it and enforce it.

The lamestream media referred to the judges in Massachusetts and the Justices of the Supreme Court who made up the one-vote majorities in their cases as “activists.” This has the implication that they were the “good guys” and doing what should be done. Both the implication and the actions of the judges/Justices were dead wrong.

To explain why that is, we turn to Paul Newman as Judge Roy Bean in Langtry, Texas, who famously said, “I am the law West of the Pecos.” Or in modern English, these judges were saying that “The law is what I say it is, no more, no less.” The proper term for any judge who acts like that is not “activist.” It is “outlaw.” Such judges are placing themselves above the law they are sworn to enforce, and above the constitutions under whose jurisdiction they sit.

Which is more dangerous: an outlaw who wears a mask and carries a nickel-plated revolver, or an outlaw who wears a black robe and carries a gold-filled pen? The first will probably take your wallet and watch, things that can be replaced. The outlaw in a black robe can take your birthright as an American citizen, and that cannot be replaced. A harsh judgment – here are the reasons for it.

The basic premise of American government is popular sovereignty. It wasn’t new in the US Constitution, or in any of the colonial charters. It appears in the very first “governmental” document in North America, the Mayflower Compact. For those who fell asleep in high school civics class (which includes, apparently, an unfortunate number of judges), here’s how that concept was carried out.

We have three branches of government. The legislative, which is elected by us, writes the laws. The executive, president or governor are also elected, and carry out or execute the laws generally. The judicial branch judges the cases of citizens who may have violated the law, civil or criminal. In most states and on all federal benches, the judges are not elected. They are the public officials most removed from the people, except in one way. Judges serve under the authority of state or federal constitutions, and a constitution is the most basic and enduring way that the people express their political decisions.

You see where this is headed. When judges decide to amend the constitution on their own, they are attacking the most basic political right that Americans have. In the Declaration of Independence it is expressed as “the right to Alter or Abolish their Forms of government.” In Article V, the amendment provisions, it is expressed as the power of two-thirds of Congress to propose, and three-fourths of the states to ratify, any change in the Constitution. Similar provisions appear in all state constitutions, usually including a referendum by the people. THIS is what judges are stealing when they arrogate to themselves the power to rewrite a constitution.

More than 23 bills and resolutions are currently introduced in Congress to deal with aspects of this problem. First we dispense with one that hasn’t yet been formally suggested in the House. Some of my more rabid friends on the Internet have urged that judges who violate their oath “to preserve and protect the Constitution” should be impeached, convicted and removed from office. While facially appealing, there’s a serious defect in this idea. The independence of judges is an essential part of our form of government. To impeach one judge for the contents of one decision, even for a grossly incompetent decision, sets a precedent that all future Congresses could remove any future judges for little or no cause. The long-term dangers of that far outweigh the short-term benefits.

The second solution is for Congress to remove part of the jurisdiction of the federal courts. The US Constitution expressly provides for this. It has been used before, most recently at the behest of former Majority Leader of the Senate, Tom Daschle. (Most state constitutions don’t provide this option.) For some issues, this solution would be sufficient. But it is necessarily temporary, since the next Congress can undo what this one has done.

The only true solution to this general problem is to place the correction in the Constitution, beyond the reach of future Congresses, and undeniably binding on all judges and justices. Here is the text that I submit should be added as the “Interpretation Clause” in the Marriage Amendment:

All provisions of the US Constitution and of the various state constitutions shall be interpreted as meaning what the drafters and ratifiers of those provisions intended, whether in 1789, 1992, or any other time.

In case anyone might misunderstand this provision, which on ratification would be binding on all judges, this WHEREAS clause should be added: The purpose of the Interpretation Clause is to restore popular sovereignty to the people of the United States and of the various states over their constitutions, by restraining any amendments to those constitutions other than by the means specified in such constitutions.

Without going into chapter and verse in mind-numbing detail, there are instances in which the federal courts have accepted rules of interpretation that were established by mere laws, written by Congress. But there are also instances of the Supreme Court refusing to be bound by such rules in the form of mere laws. If the interpretation provision is placed in the Constitution itself, even the most obstinate Justice would be forced to acknowledge its power over the Court.

Lastly, a common straw man should be addressed. Many of those who want judges to continue to use a free-form approach to the Constitution say that such a rule of interpretation would be too restrictive. Note that the rule does not bar the use of common sense. It does no violence to the intent of the drafters to apply the Interstate Commerce Clause to cars, trucks and trains, which obviously cross state lines but were unknown to the Framers. It does no violence to the First Amendment to apply the word “press” to media like TV, films and the Internet that today fill the function of the hand-cranked letter presses known to the drafters of that amendment.

Judges who would prefer to write laws, run governments, and amend constitutions are welcome to resign from the bench and run for election to those parts of government that legitimately carry out those duties. But as long as judges remain on the bench, their oaths of office require them to obey and enforce the constitutions which grant their power to act. This is a simple, but powerful concept. Since some judges have forgotten their high school civics class, this clause would remind them in a way they could neither forget, nor avoid.

For most of our 215 years under our Constitution, both the courts and the citizens have respected the Constitution. By a narrow margin, it is not too late to try that again.

Post Script: I feel it necessary to add a brief comment about the criticism of President Bush for “trading on the dead” by using 3 seconds of his new campaign ad to show brief images from 9/11. This is false. In fact, the opposite is true. Some of the relatives are “trading” on their own dead family members.

Most of those family members who cropped up to criticize the President are associated with a left-wing (Democrat) organization known as “September 11 Families for Peaceful Tomorrows.” Tomorrows is in turn “a project of the Tides Foundation.” And the major funding for Tides, which is a pass-through charity, comes from the two foundations created by the Heinz Corporation and John and Teresa Heinz. So the bottom line is that this supposedly impartial criticism is as close as one can get to being funded by John Kerry himself. The facts and documents for this assertion are well-known to veteran Internet users. This is still unknown to the lamestream media, including the New York Times. The Times and others have been informed of these connections, but have chosen so far not to confirm and publish the story. I thought my readers might appreciate the heads-up.

About the Author: John Armor is an author and columnist on politics and history. He currently has an Exploratory Committee to run for Congress.

This is embargoed until tomorrow but will run then on ChronWatch.com The following day I'll present this as a speech to some movers and shakers who have a chance to propose this to the Congress.

All of the subjects presented here are of obvious strong interest to FReepers, based on active interest in threads on these. I am especially grateful to the FReepers who assembled the information on the "ketchup money" connection to some of the 9/11 families. I put that in the post script to this column.

Let me know what y'all think of this.

John / Billybob

Excellent as always. Your thoughts remind me of someone else:

"Whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:110

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419

I think it's a start.

If the Constitution is to be amended, the Amendment should fix the problem permanently.

Your proposal is not self-interpreting. In most cases of judicial lawmaking, there is no record of original intent that is probative.

And if the judges ignore what you and I consider to be original intent, who or what can correct them?

I am inclined toward a fixed, non-renewable term for Federal judges and Justices of the USSC, and a supermajority Congressional veto for court decisions that have the effect of changing the law.

It's time for more radical surgery. For a start, Federal judges should receive an initial appointment for 5 years. Thereafter, they should hold office only if they are reconfirmed in that office by a vote of citizens within their district, such vote to be held every five years.

If that doesn't do it, it's time for stronger measures.

I assume you've see the position of the Chief Justice in the UK when Parliament proposed to remove judicial review from the new immigration bill. His answer was that Parliament didn't have the authority to do that, and this in a system that I always thought had Parliament as the supreme authority.

Jack

Personally, I am against amending the constitution in such a way. Don't get me wrong. I am totally against gay marriage. But the fact of the matters are 1) I believe the constitution and amendments if anything should be to limit the powers of the government and I do not want to set a precedent of amending it to limit the people, even if for something I don't believe in 2) I think it will take too great of an expenditure of political capital that.

That being said, the packing of the bench with radical liberal politicized judges that are willing to rule as the party, special interest groups, and foreign nations want them to have left little to no choice in the matter. It is the only tool left to circumvent an activist judiciary waging culture warfare on us. It makes me sick that they have pushed us to this bring.

Never forget, it is not George Bush that is waging the culture war. It is a mayor in a medium California's city and 4 appointed judges in MA who are trying to modify US domestic policy and thousands of years of human tradition.

miserable failure miserable failure miserable failure miserable failure war criminal

There are instances of the Supreme Court being bound by interpretation rules, even in mere statutes. In the Black Lung Benefits Act, Congress specified that the responsibility for costs for a miner who developed that disease would be presumed by any court as being caused by his employment in the mines and would be proportional among the mine owners based on the number of years worked for each employer.

Mine owners challenged this law on the grounds that it invaded the province of the courts to determine the facts of a case and was therefore unconstitutional as a violation of separation of powers. The Court found that this was a reasonable conclusion given the problem of black lung disease, which builds up over the decades and becomes explicit only late in life.

So, if the Court was willing, in certain circumstances, to obey an interpretation rule in a mere law, all but the most blind and stubborn judges/Justices should obey one that is placed in the Constitution itself. (When I refer to blind and stubborn, why is it that the name Ruth Bader Ginsburg comes to mind?)

There is good reason to think that this would work, IF it was in the Constitution. I agree that judges/Justices would try to get out from under the provision IF it was only in a statute.

Congressman Billybob

Click here, then click the blue CFR button, to join the anti-CFR effort (or visit the "Hugh & Series, Critical & Pulled by JimRob" thread). Please do it now.

I believe the constitution and amendments if anything should be to limit the powers of the government and I do not want to set a precedent of amending it to limit the people, even if for something I don't believe in

A Constitutional Amendment defining marriage doesn't stop anyone from doing anyting. If they want to play house fine, just don't expect everyone to play along.

But isn't the real problem the institution of judicial review itself?

When first activist judge -- John Marshall -- fashioned the concept of judicial review from whole cloth, wasn't it inevitable that the judicial branch would eventually reach its current state: an unelected body of elitists reading their capricious notions of justice into our constitutions, both federal and state?

I believe Marbury v. Madison effectively stole the Constitution from the American people. Fast-forward to today, and we see widespread apathy toward the Constitution, simple because the average person views the Consitution as the property of elite lawyers and the judiciary, not of the American people.

I believe the constitutional amendment we truly require is one that will put an end to judicial review.

This is a good idea. A problem that will be encountered in trying to implement it is that activist judges are drawing from a school of legal philosophy ("legal realism", popularized at Yale by followers of Justice William O. Douglas) which relativizes the historical meaning of legal documents (for some good info on this see David Brock, The Seduction of Hillary Rodham, Chapter 2, which discusses how Hillary was exposed to legal realism at Yale); and to support their position on this in recent years they have drawn from deconstruction, a French theory of literature which similarly tries to strip written documents of any historically-fixed meaning. To counter the tendency towards judicial activism I suspect there will also have to be academic resistance to the legal realism and deconstruction which are used to rationalize the judicial activists' legal philosophy.

There were six STATE court decisions prior to the writing of the Constitution that ruled that state laws in violation of state constitutions could and should be voided by the courts. One of those decisions, Caton v. Commonwealth was written by Judge George Wythe.

Who was George Wythe, I here you cry. He was none less than the first Professor of Law in the history of the United States. Among his students were Thomas Jefferson, George Mason, James Madison, Patrick Henry, you get the idea. In short, the Framers were well aware of this concept when they sat down to write the Constitution, and especially the phrase "supreme Law" as the Constitution calls itself in its text.

I could describe some of the other cases, but I won't bore you with details. Bottom line, there is no problem with judicial review, as long as the judges who use it feel bound at all times by the text of the Constitution, and so they did for 140 years, give or take a few.

The intent of this addition to the Marriage Amendment is to deal with the Justices and judges in Jefferson's words from the Kentucky Resolutions, "to bind them down with the chains of the Constitution." That's the plan.

John / Billybob

Which is more dangerous: an outlaw who wears a mask and carries a nickel-plated revolver, or an outlaw who wears a black robe and carries a gold-filled pen?

Most criminals never stop until they are incarcerated or killed.

America's mullahs have no qualms about flying their opinions into our Constitution

I am richly aware of, and thoroughly disgusted by, the literary/judicial philosophy that you refer to. A fringe benefit of this amendment clause would be to tell the Larry Tribes of this world to seek another form of employment since they are no longer needed as molders of the Constitution in their positions as Professors of Constitutional Law (tenured and in a named chair, or otherwise).

In any war, the goal is always to shoot all of the enemy, until the survivors decide to surrender. I am hoping that the enemy in this case are sufficiently cowardly that the killing will be minimal and the surrendering will be wholesale. But that can't occur until we begin to fight.

John / Billybob

You honor me, my friend, by comparing my words to those of Jefferson. Yes, I am aware of those statements by Jefferson, and the one in which he calls the federal judiciary, "the most dangerous branch."

It was not that way in Jefferson's time. But as with many things, his vision reached across the cneturies. He saw what the federal judiciary could degenerate into. And as usual, he was right.

John / Billybob

Fine. I acknowledge your comments about JR, and we could (and probably will at some point) have a great discussion about its historical origins in this country.

But I want to talk about your amendment...

" as long as the judges who use it feel bound at all times by the text of the Constitution, and so they did for 140 years, give or take a few. "

They no longer do. So what is the value of creating another amendment that leftist judges will either completely circumvent, or othwerwise twist for their own purposes?

And when they ignore the new amendment, what price will they pay? Will the leftist media call them on it? No. Will the American people stand up and hold judges accountable for subverting the Constitution, when they haven't for fifty years? Forget it.

You are a Consitution-loving Quixote tilting at judicial windmills. Any amendment taking a conservative position in the culture wars is dead on arrival.

The issue is the corrupt judiciary, and since mass ipeachment is not politically viable, the next best thing is to eliminate the power of judicial review.

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