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.

My experience with these issues, I say, issues because I believe there are several issues that are related.. from (homo)sexual freedom to pregnant mother freedom(abortion)...

The bill of rights are guaranteed by God according to our Contitution not our government. Thats what is being attacked and thereby an attack on our society.. Guaranteed by WHAT GOD ? is the question.. The Judeo-Christian God or some other kind of God or Psuedo-God.. It appears this attack is being successful, so far.. Defeat the attackers on this (what God ?)issue and you will defeat them on all the others. Loose to them this (what God?)issue and the other issues will fall too.. The world has a zillion gods and america takeing in immigrants take in their Gods too.. In that sense little wonder america is confused. We only have one word for God but many of the suckers.

It appears to me that the God of the majority is a pagan God that likes homosexuality and murdering babies.. and other nasty things.. Am I a defeatist, no, a realist.. and thats what seems real to me..

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).

That would be a nice fringe benefit :) IMO these liberal judges are going to keep on breeding until we clean out their nests in the law schools, so if this amendment would hit them there as well, it's right on target.

I'm not keen on a marriage amendment, but your "judical inerpretation amendment" suits me okay. Not that the hijackers in black robes would respect it.

With regard to the links between Tide Foundation and the 9/11 widows, it's my impression that the NYT and other media HAVE been presented with the allegations, but have not reported the connection yet. Your article says certain media outlets do not even have the information (and if they don't then it's perfectly reasonable for them to not report on it).

"The opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." -- Thomas Jefferson

The hijackers of the constitution and our freedoms are lawyers, period. Lawyers rule this country with an iron fist, almost all judges are lawyers, the state and federal legislatures are predominately lawyers. Lawyers make the laws and then for good measure lawyers as judges interpret the meaning of laws. It is like putting foxes in the hen houses to do the maximum damage, and they have.

The Bard said kill all the lawyers, and he was right.

CBB I understand denigrating the Founding Fathers by instead calling them the "Framers" is the latest politically correct thing to do. I strongly disagree with this move and am sorry you have succumbed. Please come back from the dark side :)

I care not what reason others have for using the word Framers, rather than the phrase Founding Fathers. My reason is quite specific. To my view, the FF refers only to those who met in Philadelphia to write the Constitution.

On the other hand, to my view the Framers are ALL of those who played critical roles in the creation of our nation. Sam Adams was nowhere near Philadelphia -- but I count him as a Framer because he created the Sons of Liberty. Tom Paine was not there, but he wrote the words that made us a nation in Common Sense and The American Crisis. Patrick Henry refused to take his elected position in Philadelphia because, as he his purported to have said, "I smelt a rat."

My purpose is to include all of them, including the one that almost no one pays attention to, George Wythe, when I use that word. There's no "dark side" in my writing and thinking.

John / Billybob

Keep in mind that the most numerous single profession among the 55 who went to Philadelphia, and the 39 who were there when the Constitution was signed on 17 September, 2004, were lawyers. Not all lawyers are bad.

With that said, I agree that the law has descended as a profession since then. We are at risk of becoming a nation of the lawyer, by the lawyer and for the lawyer -- and that kind of lawyer is the lowest of the breed, trial lawyers. Like John Edwards.

John / Armor

I agree with your sentiment, but I think you have your terms reversed. According to my dictionary, the word frame, in its verb form, means (among other things) "to compose, to compress in words, frame a treaty or a question."

I would call the people you named Founding Fathers because their influence goes beyond framing the Constitution. I would also add the signatories of the Declaration of Independence and George Washington as Founding Fathers, too. For me, the word Framer doesn't do Washington justice.

Just my opinion...

-PJ

Nonsense, upchuck. 'Founding Fathers' refers to those involved in the Declaration of Independence, 'Framers' refers to those involved in the writing of the Constitution more than a decade later.

upchuck upchucked thusly:

CBB I understand denigrating the Founding Fathers by instead calling them the "Framers" is the latest politically correct thing to do.

. 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.

Why does this apply to gay marriage and not to concealed handgun permits?

The civil disobedience and anarchy of today is directly related to the US Supreme Court decision in Lawrence v. Texas. In fact, the canard being hoisted these days is an equal protection argument that only one justice (out of 9) agreed with, as noted by Scalia in his dissent.

Thanks for the ping, CD.

Thought provoking to the preprovoked, I must say.

I would like to comment on this one statement:

"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."

That precedent has been set by Alabama; decisions reflect the belief of the judiciary and if no accountability restraints are placed upon them, we might as well submit the future of these United States to the control of a committee of select justices - an end Abraham St. Lincoln warned of in his First Inaugural.

No, I'd rather see the people's voice heard through Congress and Congress to have the authority to impeach and disbar any justice(s) who think they are immune to laws they swore to uphold.

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