Posted on 03/07/2004 6:20:40 PM PST by Congressman Billybob
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.
That states the problem. What’s the solution?
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:
Interpretation Clause
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.
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About the Author: John Armor is an author and columnist on politics and history. He currently has an Exploratory Committee to run for Congress.
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©) 2004, Congressman Billybob & John Armor. All rights reserved.
But this does not cure the deeper problem of judges simply ignoring the plain words and intent of the Constitution for their own nefarious ends. The Campaign Finance Reform Act, twisting of the "commerce" clause, and uncountable other wholesale perversions of the 1st, 2nd, 4th, 5th, 6th, 8th, 9th and 10th Amendments which all seem pretty clearly written - and just as clearly ignored - are examples, just for starters.
What makes you think these same Soviet-style judges will obey, rather than twist, the clause in your newly minted 28th?
No. There has to be available sticks against these judges and their putrid accomplises to go along with the succulent carrots of their lofty offices.
So far, I haven't seen the right ones, but I'm sure better minds than mine can come up with them. Impeachment hasn't proven to be a deterrent. Perhaps a combination of elections and term limits is? They are too far removed from the "will of the people" and have instead become an ongoing Constitutional Convention in their own eyes.
In any event, there has to be a quick and punishing alternative for their stepping all over the clear meaning of that Constitution. I don't think merely passing some additional twistable phrases in an additional Amendment will do it for very long.
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.
It also judges cases in which the Legislative or Executive branches have overstepped their lawful Constitutional powers. Why did you omit this equally important function?
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.
Indeed, - Constitutions supposedly protect our individual rights from overzealous politicians, if the judiciary are doing their jobs.
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.
Judges haven't the power to amend. You know this, yet you keep demagoguing the issue.
When judges make decisions repugnant to our constitutions, our other branches of government are obligated to correct the matter, using their powers to check & balance.
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.
You seem to assume the constitutions check/balance system is broken. - Not so. -- The political system is broken.
That states the problem. What's the solution?
I say we change the political situation, not the constitution.
Of course, those with political aspirations prefer to increase the power of government, even to the point of altering it with unneeded amendments, -- as we see.
You want to become part of that problem John, rather than to solve it.
Question: Are states truly required to accept marriages that conflict with their own laws?
To put the question another way, let's use an example other than marriage. Say two people in Tennessee sign a contract of a kind that's illegal in Massachusetts (I don't know, maybe a yellow-dog contract or something). If they move to Massachusetts, would Massachusetts be obliged to enforce this contract?
2. A couple who are first cousins marry in a state where that is permitted. Then they move to a state which forbids first cousins from marrying. Must that marriage be recognized as valid in the second state? Held: since the marriage was valid where entered into, it remains valid in the second state. This is the case on which the proponents of homosexual marriage will hang their hats as they fan out from Massachusetts.
John / Billybob
Do you have the names of these cases?
If you want a whole bunch of cases, go on www.law.cornell.edu and do a search on "Full Faith and Credit." That should give you more cases than you can shake a stick at, in this area of constitutional law.
Cordially,
John / Billybob
Besides, the Members of the Court are getting close to "biological retirement." Without going into the details, I forsee that the Chief Justice and Justices O'Connor and Ginsburg will all announce their retirement within the next year. The question then becomes whether the replacement Justices for those will be asked and will say that they will "accept and apply the (new) Interpretation Clause."
Your suggestion of simply ending judicial review is wholely misplaced. I'va answered that argument in detail on other threads. Suffice to say, that principle was NOT created out of whole cloth by Chief Justice Marshall in Marbury v. Madison. To the contrary, there are six state court decisions holding the same principle at the state level, handed down before the Constitution was written.
One of those six, Caton v. Commenwealth, was decided by George Wythe. Wythe was the first professor of law in the United States. His students included Jefferson, Madison, Mason, and Henry, among others. The Framers both knew and respected Wythe, and would have been aware of that important case decided by him.
Your general premise seems to be that no Justices can be forced to obey and enforce the Constitution, no matter what. If things really are that bad, then a written Constitution is irrelevant, and it is time to take to the woods with guns in hand. I do not believe that. Do you?
John / Billybob
Generally, a valid marriage license from one state is valid in another. However, under a doctrine known as "conflict of laws," a state may reject the marriage license if it violates the state's strong public policy. In the past, such grounds have involved marriages of minors and certain familial unions, such as between first cousins.
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