Skip to comments.The Necessary Amendment
Posted on 10/11/2004 1:57:48 PM PDT by Ed Current
Within the next two or three years, the Supreme Court will almost certainly climax a series of state court rulings by creating a national constitutional right to homosexual marriage. The Court's ongoing campaign to normalize homosexuality-creating for homosexuals constitutional rights to special voting status and to engage in sodomy-leaves little doubt that the Court has set its course for a right to marry. This is but one of a series of cultural debacles forced upon us by judges following no law but their own predilections. This one, however, will be nuclear. As an example of judicial incontinence, it will rival Roe v. Wade, and will deal a severe and quite possibly fatal blow to two already badly damaged but indispensable institutions-marriage and the rule of law in constitutional interpretation.
The wreckage may be subtler but more widespread even than that. Such a decision would ratify, in the most profound way, the anarchical spirit of extreme personal and group autonomy that is the driving force behind much of our cultural degradation. Call it what you will-moral chaos, relativism, postmodernism- extreme notions of autonomy already suffuse our culture, quite aside from any assistance from the courts. But judicial endorsement, which is taken by much of the public to state a moral as well as a legal truth, makes the anything-goes mentality even harder to resist. The principle undergirding radical autonomy is essentially unconfineable. Thus, Justice Byron White, Senator Rick Santorum, and William Bennett have all made the point that the rationale for same-sex marriage would equally support group marriage, incest, or any other imaginable sexual arrangement.
That surely is the meaning, insofar as it has a discernible meaning, of the imperialistic "mystery passage" first articulated by three justices in a case upholding the right to abortion and repeated in the majority opinion creating a right to homosexual sodomy:
[Our] law affords constitutional protection to . . . the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty [protected by the Constitution] is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
Reading these words, it is hard to know what there is left for legislatures to do, since each individual is now a sovereign nation.
The only real hope of heading off the judicial drive to constitutionalize homosexual marriage is in the adoption of an amendment to the Constitution. The language of the amendment now before Congress is this:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
The amendment is intended primarily to stop activist courts from redefining marriage in any way they see fit, as the Supreme Judicial Court of Massachusetts has recently done. The first sentence, however, also limits legislatures by defining marriage as the people of the United States and of the West have known it.
Given that the stakes riding on the outcome of the effort to adopt the Federal Marriage Amendment (FMA) are so high, it is surprising that so many social conservatives have expressed opposition. Though these are men for whom I have the highest regard, in this instance I think they are mistaken. Their mistake, it seems to me, derives from a conservative constitutionalism which, though laudable in the past, is now, most unfortunately, obsolete. Walter Bagehot, writing of the English constitution in the nineteenth century, said, "[I]n the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now no longer true." So it is with us. Michael Greve correctly places the same-sex marriage issue in a wider context: "[T]he broader, more menacing problem is judicial usurpation. . . . [W]hat truly grates is the notion of having [homosexual marriage] dictated by willful, contemptuous judges." Conservative constitutionalism today requires taking back the original Constitution to restore the constitutional order and representative government. If that requires amending the Constitution to recall the judges to their proper function, so be it. There is no other remedy available to save or, more accurately, to restore a republican form of government.
The conservative columnists George F. Will and Charles Krauthammer, however, seem to me to illustrate Bagehot's maxim. Will has written that "amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy." To his point about the unwisdom of putting social policy in the Constitution, it is fair to reply that the entire document can be seen as expressing social policy, and certainly parts of the Bill of Rights, such as the guarantee of the free exercise of religion, do exactly that. The real difficulty with Will's position, however, is his notion that the states will be allowed to be laboratories of social policy. They will not; the Supreme Court, as in the case of Roe, will simply replace the social policies of all of the states with its own policy.
The most likely route to that ruling is the following. A homosexual couple will marry in Massachusetts, move to another state (say, Texas), and claim the status and benefits of marriage there. They will cite the Full Faith and Credit Clause of Article IV of the Constitution, which declares that states must accept the public acts of every other state. Texas will refuse recognition, relying on the federal Defense of Marriage Act (DOMA), passed in reliance on Article IV's further provision that Congress may prescribe the effect of such out-of-state acts. The couple will respond with a challenge to DOMA under the federal Due Process and Equal Protection Clauses. The Supreme Court will then uphold their challenge by finding a federal constitutional right to same-sex marriage that invalidates DOMA. The FMA would prevent this almost-certain outcome. Instead of state-by-state experimentation, we are going to have a uniform rule one way or the other: homosexual marriage everywhere or nowhere. The choice is that stark and judges are forcing us to make it.
Charles Krauthammer agrees that "there is not a chance in hell that the Supreme Court will uphold" DOMA. He concludes, nonetheless, that "I would probably vote against the amendment because for me the sanctity of the Constitution trumps everything, even marriage." His point would be well taken if it were not much too late to worry about the sanctity of a document the Supreme Court has been shredding for fifty years. Surely the Court's diktats, which are themselves profoundly unconstitutional, are not sacred. As matters now stand, the "sanctity of the Constitution" is a smoke screen providing cover for judicial activism. Taking action through authentically constitutional means to prevent yet another constitutional travesty shows greater respect for the document than standing by while five of nine justices chisel into the tablets of the law the caprices of the elite class to which they respond. An amendment preventing one instance of judicial depredation would at least represent a democratic choice-indeed a choice by supermajorities, given the requirement of a two-thirds vote in each house of Congress and then ratification by three-quarters of the states.
There is one other objection expressed by Krauthammer, however: "I would be loath to see some future democratic consensus in favor of gay marriage (were that to come to pass) blocked by such an amendment." That objection could, of course, be made to every provision of the Constitution; each and every one precludes some action by a future democratic consensus. If, for example, a national majority should want to make foreign-born naturalized citizens eligible for the presidency or to abolish jury trials in complex lawsuits, that democratic consensus would be frustrated by the Constitution.
Michael Greve suggests a constitutional amendment that would preserve the value of state experimentation while heading off the Supreme Court creation of homosexual marriage:
The United States Constitution shall not be construed to require the federal government, or any state or territory, to define marriage as anything except the union of one man and one woman.
The United States Constitution shall not be construed to require any state or territory to give effect to any public act, record, or judicial proceeding respecting a relationship between persons of the same sex that is treated as a marriage under the laws of another state or territory.
This amendment would leave states free to give effect to the acts of other states or not, as they see fit. Greve suggests that state legislatures could control the choice through legislation allowing or forbidding their courts to honor out-of-state homosexual marriages.
There seem both legal and sociological problems with this proposal. The language leaves out of account what state courts may do with state constitutions. A state supreme court could very well hold-and a number of them certainly will-that its state constitution contains a right to homosexual marriage or, alternatively, that its constitution mandates recognition of such marriages contracted elsewhere. It is not a sufficient answer that the citizenry could respond by amending the state constitution. In many states the amending process is quite difficult and time-consuming; and a state supreme court's ruling will itself affect the balance in the electorate. The cultural aristocracy-the news media, university faculties, many churches, foundations, television networks, and Hollywood-will continue, as they have already been doing, to propagandize massively and incessantly for the normality of homosexuality and the right to marry. It may be doubted that many states will muster supermajorities overruling their courts in the face of this cultural tsunami. There seems no way to guard against state court activism on this issue, which we have already seen in Hawaii, Vermont, and Massachusetts, except by a federal amendment that binds state as well as federal courts.
As seems inevitable in discussions about reining in runaway courts, some have suggested that instead of amending the Constitution, Congress should deny all federal courts jurisdiction to deal with the marriage issue. Congress has power under Article III of the Constitution to make exceptions to the appellate jurisdiction of the Supreme Court and to remove lower court jurisdiction. This proposal, though endorsed by a commentator as sound as Arnold Beichman, is, as always, a nonstarter, and merely diverts some Congressmen from addressing the problem seriously. If the Supreme Court allowed its jurisdiction over a particular subject to be abolished, which is by no means a certainty, the result would be to leave jurisdiction in the state courts. Article VI provides that "the Judges in every State shall be bound" by the Constitution and laws of the United States, and there is no power in either Congress or the state legislatures to take away that jurisdiction. The result, if Congress acted and the Court acquiesced, would be the same as under the constitutional amendment suggested by Michael Greve, except that state courts could rely upon both the federal and state constitutions to invent, as the courts of Massachusetts and Hawaii have under their state constitutions, a right to same-sex marriage.
Amending the United States Constitution to save it and marriage from freebooting judges would be extremely difficult in the best of circumstances, but it is made immeasurably more difficult because so many people ask: How does homosexual marriage affect me? What concern is it of mine or of anybody else what homosexuals do? The answer is that the consequences of homosexual marriage will affect you, your children, and your grandchildren, as well as the morality and health of the society in which you and they live.
Studies of the effects of same-sex marriage in Scandinavia and the Netherlands by Stanley Kurtz raise at least the inference that when there is a powerful (and ultimately successful) campaign by secular elites for homosexual marriage, traditional marriage is demeaned and comes to be perceived as just one more sexual arrangement among others. The symbolic link between marriage, procreation, and family is broken, and there is a rapid and persistent decline in heterosexual marriages. Families are begun by cohabiting couples, who break up significantly more often than married couples, leaving children in one-parent families. The evidence has long been clear that children raised in such families are much more likely to engage in crime, use drugs, and form unstable relationships of their own. These are pathologies that affect everyone in a community.
Homosexual marriage would prove harmful to individuals in other ways as well. By equating heterosexuality and homosexuality, by removing the last vestiges of moral stigma from same-sex couplings, such marriages will lead to an increase in the number of homosexuals. Particularly vulnerable will be young men and women who, as yet uncertain of and confused by their sexuality, may more easily be led into a homosexual life. Despite their use of the word "gay," for many homosexuals life is anything but gay. Both physical and psychological disorders are far more prevalent among homosexual men than among heterosexual men. Attempted suicide rates, even in countries that are homosexual-friendly, are three to four times as high for homosexuals. Though it is frequently asserted by activists that high levels of internal distress in homosexual populations are caused by social disapproval, psychiatrist Jeffrey Satinover has shown that no studies support this theory. Compassion, if nothing else, should urge us to avoid the consequences of making homosexuality seem a normal and acceptable choice for the young.
There is, finally, very real uncertainty about the forms of sexual arrangements that will follow from homosexual marriage. To quote William Bennett: "Say what they will, there are no principled grounds on which advocates of same-sex marriage can oppose the marriage of two consenting brothers. Nor can they (persuasively) explain why we ought to deny a marriage license to three men who want to marry. Or to a man who wants a consensual polygamous arrangement. Or to a father to his adult daughter." Many consider such hypotheticals ridiculous, claiming that no one would want to be in a group marriage. The fact is that some people do, and they are urging that it be accepted. There is a movement for polyamory-sexual arrangements, including marriage, among three or more persons. The outlandishness of such notions is no guarantee that they will not become serious possibilities or actualities in the not-too-distant future. Ten years ago, the idea of a marriage between two men seemed preposterous, not something we needed to concern ourselves with. With same-sex marriage a line is being crossed, and no other line to separate moral and immoral consensual sex will hold.
We are in a time of deep moral confusion about sex and particularly about homosexuality. Consider: the Catholic Church is berated for putting homosexual men in charge of boys while the Boy Scouts are punished for not putting homosexual men in charge of boys. At the same time, as Mary Eberstadt points out, the rightness or wrongness of pedophilia (involving boys, not girls) is "demonstrably not yet settled within certain parts of the gay rights movement." Eberstadt reports that the taboo against pedophilia is weakening. Some homosexual activists, such as the North American Man/Boy Love Association, are working to that end. Nothing, one is tempted to say, is any longer unimaginable, and what is imaginable is doable.
Is passing the FMA worth the energy and the political risk for politicians, especially when it may well be a losing battle? Social conservatives, Max Boot notes, have been fighting and losing culture wars for decades. That is obvious, but his recommendation that we acknowledge defeat on the issue of homosexual marriage and move on to other issues is bad advice. This issue seems to me so important that a fight against it, whatever the odds, is mandatory. Abandoning resistance here might nevertheless be seen by some as an intelligent strategy, but that would be true only if there were a more defensible line to fall back to. It is difficult to see what line that might be. The cultural left, including homosexual activists, will keep pressing for more. The BBC, as a foretaste of what is to come, has ordered its staff not to use the words "husband" and "wife," since that might seem to indicate that marriage is preferable to other sexual arrangements. In Canada, a pastor has been charged under a hate speech law for publishing instances of the Bible's disapproval of homosexuality. Church leaders who imagine they can negotiate immunities from laws applying to the rest of the population are almost certainly fooling themselves. Liberal autonomists have little or no respect for religion, except to the extent that some clergy can be recruited to advance their causes in the name of religion. The Catholic Church will be a particular target of attack, as it already has been in California, where the state supreme court ruled that Catholic Charities had to provide prescription contraceptive coverage in its health insurance plan for employees.
Boot's advice to cut and run on this issue thus ignores the fact that there are fewer and fewer places to run to. The autonomous drive toward cultural degradation will not leave us in peace, ever. Boot may be right to predict that Republican support for a marriage amendment would make the party "look 'intolerant' to soccer moms whose views on this subject, as on so many others, will soon be as liberal as elite opinion already is." But if that is true, it means that we will lose all the cultural battles of the future, as the soccer moms trail along behind elite opinion. If Republicans refuse to fight cultural battles on that reasoning, they will look cowardly to conservatives, which could be equally disastrous. It would be better to try to convince the soccer moms, who would not be at all happy if their children and grandchildren cohabited instead of marrying, or "married" persons of the same sex.
Finally, it is worth considering that a vigorous campaign for the FMA could have a salutary effect on the American judiciary. The debates, win or lose, might also lead the public to a more realistic view of the courts. As William F. Buckley, Jr. has written on another occasion, "The public-under the tutelage of its moral and intellectual leaders-is being trained, as regards the Supreme Court of the United States when it is interpreting the Constitution, to accept its rulings as if rendered ex cathedra, on questions of faith and morals." Thus, a constitutional amendment "done athwart the will of the Court for the first time in modern history . . . would deliver the Republic from a presumptuous ethical-legal tribunal." "The public," Buckley argues, "needs to experience a release from a subtle thralldom to judicial morality." Quite right.
Conservative opinion leaders must recognize that the illegitimacy of the rampant judicial constitution- making that is before their eyes changes all the old rules about the place of amendments in our polity. The comfortable shibboleths about a heavy presumption against amending the Constitution no longer have much relevance to the brute facts of our political life. So profound is the departure from a republican form of government that the presumption must now be in favor of amending the Constitution whenever the Court runs wild. Homosexual marriage presents just such an occasion, but if our politicians wait until the Supreme Court has done the inevitable, it will probably be too late for an effective response. Catastrophes ought not to be faced in a spirit of resignation.
Robert H. Bork is Distinguished Senior Fellow at the Hudson Institute and Tad and Dianne Taube Distinguished Visiting Fellow at the Hoover Institution. He is a professor at Ave Maria School of Law and the University of Richmond School of Law.
Mr. Bork stated, and I agree, that the "Supreme Court will ...create a national constitutional right...[that] will be forced upon us by judges following no law but their own predilections...and will deal a severe and quite possibly fatal blow to the rule of law in constitutional interpretation..."
"...it...[is] much too late to worry about the sanctity of a document the Supreme Court has been shredding for fifty years. Surely the Court's diktats, which are themselves profoundly unconstitutional, are not sacred."
Mr. Bork, I disagree with the FMA for the reason stated by Matthew J. Franck, Chairman And Associate Professor Of Political Science, Radford University before the House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary, Washington, DC. January 29, 1998, Congress, the Court, and the Constitution:
My opposition to amending the Constitution to deal with our difficulties is not rooted in mere reverence for the framers' handiwork if evidence shows its insufficiency in some respect. No institutions crafted by human beings can be truly permanent, never requiring any alterations. Yet the Constitution, as Joseph Story said, was ''reared for immortality, if the work of man may justly aspire to such a title.'' Before we take risks with a structure whose ''foundations are solid'' and whose ''compartments are beautiful, as well as useful'' (again Story's words),(see footnote 155) we should explore the building thoroughly and be certain we have not overlooked any of the useful features it already contains.
Mr. Bork, Judges are the problem, not the Constitution! Problem identification is half the solution and you need to focus on and solve the problem. Stop throwing amendments at the Constitution the way legislature likes to throw money at pork barrels. The Constitution is a very conservative document for the most part. FMA will only make it more so and serve no purpose in correcting the liberal federal courts, which are to the left of MoveOn.org: Demagoguery in Action. Additionally, the amendment process is exceedingly slow and no match for the rapidity at which the U.S. Supreme Court can generate unconstitutional opinions.
The visionary Founders included at least two additional Constitutional means to deal with the disastrous federal courts. Mr. Bork briefly mentions jurisdiction stripping and omits impeachment. The Federalist #48: "It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."
U.S. Supreme Court Justice Clarence Thomas stated the following at the Francis Boyer Lecture for the American Enterprise Institute for Public Policy Research at Washington, D.C. on February13, 2001:
The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean.
Third, this approach recognizes the basic principle of a written Constitution. We "the people" adopted a written Constitution precisely because it has a fixed meaning, a meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution. Aside from amendment according to Article V, the Constitution's meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President.
Mr. Bork states, "Conservative constitutionalism today requires taking back the original Constitution to restore the constitutional order and representative government. There is no other remedy available to save or, more accurately, to restore a republican form of government."
Mr. Thomas's comment and Mr. Bork's own comments starkly contrast with this statement from Mr. Bork:
"Their mistake, it seems to me, derives from a conservative constitutionalism which, though laudable in the past, is now, most unfortunately, obsolete. Walter Bagehot, writing of the English constitution in the nineteenth century, said, "[I]n the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now no longer true."
How in the name of almighty jurisprudence did the Impeachment Clauses and Article 3, Section 2, Clause 2 leave without taking Article 5. with them? Is this what is meant by a "living" Constitution, where the text you don't like packs up and moves off like some Disney animation? "On every question of construction [of the Constitution] let us 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 intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
"On every question of construction [of the Constitution] let us 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 intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
Religious Freedom Restoration Act (6) A fundamental maxim of law is, whenever the intent of a statute or a constitution is in question, to refer to the words of its framers to determine their intent and use this intent as the true intent of the law. Given that the stakes riding on the outcome of the effort to adopt the Federal Marriage Amendment (FMA) are so high...given the requirement of a two-thirds vote in each house of Congress and then ratification by three-quarters of the states.
Given that the stakes riding on the outcome of the effort to adopt the Federal Marriage Amendment (FMA) are so high...given the requirement of a two-thirds vote in each house of Congress and then ratification by three-quarters of the states.Amending the United States Constitution to save it and marriage from freebooting judges would be extremely difficult in the best of circumstances.
Why do you insist on Amendment, Mr. Bork, to the exclusion of a much easier and faster Constitutional means?
Mr. Bork mentions Arnold Beichman, but he needs to read cosponsor Paul:
Protecting Marriage From Judicial Tyranny by Ron Paul Since the Marriage Protection Act requires only a majority vote in both houses of Congress (and the president's signature) to become law, it is a more practical way to deal with this issue than the time-consuming process of passing a constitutional amendment. In fact, since the Defense of Marriage Act overwhelmingly passed both houses, and the president supports protecting state marriage laws from judicial tyranny, there is no reason why the Marriage Protection Act cannot become law this year.
"Congress should deny all federal courts jurisdiction to deal with the marriage issue. Congress has power under Article III of the Constitution to make exceptions to the appellate jurisdiction of the Supreme Court and to remove lower court jurisdiction."
"If the Supreme Court allowed its jurisdiction over a particular subject to be abolished, which is by no means a certainty, the result would be to leave jurisdiction in the state courts."
Only six of the nine would object and it takes more than a black robe to join the global terrorist network. Perhaps, an anger management seminar with subsidized Prozac will suffice.
Article III, Section 2 - The Washington Times: Editorials/OP-ED In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.
The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
" The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous....But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
The Supreme Court is to be invested with original jurisdiction, only ``in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.''
We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, ``with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.''
To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; PUBLIUS.
The federal branches of government are coordinate, NOT coequal and they are all subordinate to the U.S. Constitution which is the supreme law, NOT the U.S. Supreme Court:
The Avalon Project : Federalist No 78 It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.
The Avalon Project : Federalist No 51 But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates
Conservative opinion leaders must recognize that the illegitimacy of the rampant judicial constitution- making that is before their eyes changes all the old rules about the place of
The Court can run much faster and further to the left, till there is nothing left. Amendment corrects the Constitution, impeachment, jurisdiction stripping, executive non compliance (see Lincoln on Judicial Supremacy & Judicial Monopoly Over the Constitution: Jefferson's View) and interposition (Standing Between the Butcher and the Baby) deal with the unconstitutional courts.
There is another answer to the objection that "it cannot be done." There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don't think they can obtain the final goal of conviction.
It is an ancient maxim in law and politics that the potential for the abuse of a power is no argument against its use. Certainly this is true of judicial review itself, the most frequently abused power in American politics today. And if the Constitution's framers and authoritative early commentators regarded the impeachment power as perhaps the most decisive available response to judicial imperialism, it is past time to consider following their wise counsel.
When President Gerald Ford was a Congressman, he proposed the impeachment of one of the most liberal of all Supreme Court Justices, William O. Douglas. Ford, who was a moderate in every sense of the word, explained Congress's tremendous and far-reaching power of impeachment: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office."
Even though the Constitution gave the lawmaking powers to the Congress, courts have become the predominant policy making body in the nation. In fact, on public tours of the Supreme Court, one often hears the ridiculous claim that "this is the building from which all the laws in the land emanate." The Supreme Court, fully believing its own propaganda, regularly strikes down or rewrites the laws of Congress to conform to its own predilections and edicts.
Allowing the Court to enlarge its own sphere of power beyond what the Constitution authorizes, permitting the Court to usurp the powers of Congress, and tolerating the Courts' disregard of constitutional separation of powers moves America ever further from being a representative republic and ever closer toward the oligarchy against which Jefferson warned. The Court must be resisted in these attempts.
Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that "Congress sees the light when it feels the heat," and this is especially true on this issue.
The Justices are fully engaged in social and cultural engineering. George Washington said those who labor to subvert religion and morality may not be called patriots. Yet subverting religion and morality is exactly what the Court is doing. It is in the business of changing America from the Christian nation the Court said America was in 1892, to an anti-Christian secular state whose religion is secular humanism. Even though Christianity and the Bible condemn homosexuality as an evil, the Court in Lawrence said "(t)he state cannot demean" homosexuals. In Romer v. Evans, the Court invalidated a law prohibiting favored treatment of homosexuals. Such Christian condemnation was tantamount to bigotry.
The Court has even altered the meaning of the word "liberty" as used in the 14th Amendments due process clause. As originally understood, it meant only "the right to have ones person free from physical restraint." Yet the Court in Lawrence, repeating its bogus and solipsistic "sweet mystery of life" statement (as Justice Scalia called it) it first made in an abortion case, said, "At the heart of (14th Amendment) liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life." When the Framers spoke of liberty, they meant, not licentious self-indulgence, but the liberty to do that which is good, just and honest, or liberty under lawful moral constraints. They realized, as Edmund Burke said, that "men of intemperate minds can never be free; their passions forge their fetters."
What is worse, the People and their elected representatives continually, by their inaction, concede without a whimper that our imperial judiciary virtually has carte blanche to say the Constitution means anything it wants it to mean. This brings to mind an anecdote related by Robert Bork. A new State Supreme Court Justice upon meeting a U.S. Supreme Court Justice said, "I'm delighted to meet you in person because I have just taken an oath to support and defend whatever comes into your head." Congressional leaders seem to think that the only thing that can be done is to urge appointment of conservative constitutionalists to the Court, or urge passage of constitutional amendments to correct judicial excess. However, there is a better solution.
It is now generally believed that grounds for removal under impeachment must be only for treason, bribery or for violation of a criminal statute. However, David Barton, in his book "Impeachment: Restraining An Overactive Judiciary," has documented that the Framers of the Constitution had a much broader view. Barton states that "impeachments of federal judges in the century-and-a-half following the ratification of the Constitution usually revolved around non-statutory and non-criminal charges rather than todays standard of a direct violation of statutory law."
Justice Joseph Story, the U.S. Supreme Courts greatest scholar, believed such a restriction was preposterous and said, "No one has as yet been bold enough to assert that the power of impeachment is limited to offenses positively defined in the statute book of the Union as impeachable high crimes and misdemeanors." Justice Story said impeachment was for protecting the rights of the people "and to rescue their liberties from violation," and a remedy for "political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of public interests," as well as a check upon "arbitrary power." So were "unconstitutional opinions" and "attempts to subvert the fundamental laws and introduce arbitrary power."
Founding Father and later Supreme Court Justice James Wilson said "(i)mpeachments are confined to political characters, (and) to political crimes and misdemeanors.." George Mason, who is called "the Father of the Bill of Rights," saw impeachment as a remedy for "attempts to subvert the Constitution." Hamilton said the subjects of impeachment are those which may "be denominated political." Justice Samuel Chase was impeached for his judicial high-handedness and arbitrary uses of the judicial power. Barton also points out that one federal judge was impeached for supporting the secession movement. Federal judges were removed from office in 1904, 1912 and 1926 for judicial high-handedness.
The language leaves out of account what state courts may do with state constitutions. A state supreme court could very well hold-and a number of them certainly will-that its state constitution contains a right to homosexual marriage or, alternatively, that its constitution mandates recognition of such marriages contracted elsewhere. It is not a sufficient answer that the citizenry could respond by amending the state constitution. In many states the amending process is quite difficult and time-consuming; and a state supreme court's ruling will itself affect the balance in the electorate.
States vary in the means to remove/correct members of government.
Article 8 of the Declaration of Rights -Massachusetts Constitution:
"In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life. . ."
Language of bill of address, sponsored by Rep. Emile J. Goguen (D-Fitchburg), NOW before the Massachusetts Legislature:
Resolved, That both houses of the legislature hereby request the Governor by way of address, under the provisions of Article I of Chapter III of Part the Second of the Constitution, to remove Margaret H. Marshall, Chief Justice of the Supreme Judicial Court, from her office, to remove John M. Greaney, Associate Justice of the Supreme Judicial Court, from his office, to remove Roderick L. Ireland, Associate Justice of the Supreme Judicial Court, from his office, and to remove Judith A. Cowin, Associate Justice of the Supreme Judicial Court, from her office.
The bill is still in the House Rules Committee. It's been gaining support. But the leadership may not allow it to be voted on during this session. If necessary, we will have it immediately re-filed.
The Avalon Project : US Constitution : Article IV The United States shall guarantee to every state in this union, a republican form of government .
republic - yourDictionary.com - American Heritage Dictionary" A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them."
A pure democracy operates by direct majority vote of the people. When an issue is to be decided, the entire population votes on it; the majority wins and rules. A republic differs in that the general population elects representatives who then pass laws to govern the nation. A democracy is the rule by majority feeling (what the Founders described as a "mobocracy" 12); a republic is rule by law.
A republic is the highest form of government devised by man, but it also requires the greatest amount of human care and maintenance. If neglected, it can deteriorate into a variety of lesser forms, including a democracy (a government conducted by popular feeling); anarchy (a system in which each person determines his own rules and standards); oligarchy (a government run by a small council or a group of elite individuals): or dictatorship (a government run by a single individual).
The couple will respond with a challenge to DOMA under the federal Due Process and Equal Protection Clauses.
For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Bd of School Comm., 554 F. Supp. 1104 (1983) Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997) The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970
The Committee for Justice Lino A. Graglia, A. Dalton Cross professor of the University of Texas School of Law:
"....Hope once lay in the making of new appointments, but the failure of ten consecutive appointments by four Republican Presidents to change the direction established by the Warren Court has shown this hope, too, to be unreliable. Rule by judges can certainly be solved by abolishing judicial review, but the real problem resides less in judicial review as such than in the Court's reading of the Fourteenth Amendment as a text without any definite meaning. That problem could be solved either by returning the Fourteenth Amendment to its original meaning or by giving it any definite meaning, thus making it a judicially enforceable rule."
If Republicans refuse to fight cultural battles on that reasoning, they will look cowardly to conservatives, which could be equally disastrous.
The US Constitution v. rebellious federal judges and cowardly republicans ... As you can see, jurisdiction stripping is far more common and easier to accomplish than amendment or impeachment; and far more effective than hoping for a favorable decree from trained monkey, or his more liberal colleague - a federal judge.
Cached How many of you received your Constitution when you came in tonight? Well, you are going to need one! We are going to read it and that is a radical thing! When I was a student at Harvard I took Constitutional Law class and we never read the Constitution. We only read the opinions of the Supreme Court about the Constitution. Tonight as we sketch out a blueprint to for state action to recover constitutional liberty and law for America, we are actually going to look at the document and read what it says.
The following quote has been attributed to James Madison, often referred to as the "Father of the U.S. Constitution." "Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives."
AEI - Publications Beneath the Supreme Court's many astounding decisions in its 2002-2003 term, and the shifting judicial coalitions that produced those results, runs a unifying basso continuo: Constitutional law, in the sense of judicial decisions that are guided--at least in aspiration--by the text, structure, and logic of the written Constitution, is dead. It has been replaced, often as a matter of explicit doctrine, with subjective judicial impressions of popular sentiment or political utility. Federalist Outlook, The Term the Constitution Died, Michael S. Greve,Friday, July 25, 2003
Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 - Justice Scalia, with whom the Chief Justice, Justice White, and Justice Thomas join, concurring in the judgment in part and dissenting in part.
Justice Curtis's warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought tomean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
The philosopher Hegel said, "What experience and history teach us is this: that people and government never have learned anything from history or acted on principles deduced from it." Or as Winston Churchill said, "The one thing we have learned from history is that we don't learn from history."
The refrains that are often heard are: "It can't happen here," or "Our country is different." But the reality is that nations are born and die just like individuals. Their longevity may exceed the average person's lifespan. But the reality is that nations also die.
Each of the great civilizations in the world passed through a series of stages from their birth to their decline to their death. Historians have listed these in ten stages.
The first stage moves from bondage to spiritual faith. The second from spiritual faith to great courage. The third stage moves from great courage to liberty. The fourth stage moves from liberty to abundance. The fifth stage moves from abundance to selfishness. The sixth stage moves from selfishness to complacency. The seventh stage moves from complacency to apathy. The eighth stage moves from apathy to moral decay. The ninth stage moves from moral decay to dependence. And the tenth and last stage moves from dependence to bondage.
Nations most often fall from within, and this fall is usually due to a decline in the moral and spiritual values in the family. As families go, so goes a nation.
Dred Scott | Washington University in St. Louis In 1846, Dred Scott and his wife Harriet filed suit for their freedom in the St. Louis Circuit Court. This suit began an eleven-year legal fight that ended in the U.S. Supreme Court, which issued a landmark decision declaring that Scott remain a slave.
The Case for Impeaching Rogue JudgesThe American people are asking themselves, why bother voting when the judiciary can knock down laws like so many bowling pins?
Judicial Dictatorship Everyone talks about the Supreme Court, but no one ever does anything about it.
You will either take control of the federal courts via Congress and to a lesser extent the President, or they will increasingly take control of you and yours!
Some answers here from Bork about our previous discussion.
To read later
Bork is so right.
If conservatives will not give battle when they have the support of the American people, then, pray, when will they ? If sodomite marriage is conceded then "trans generational love" becomes the next issue.
Victory creates a bandwagon momentum, in the face of which Max Boot is frankly defeatist. Is the cultural left invincible ? Is it the "wave of the future" ? I see no reason to make that assumption. Culturally, is this the America of 1977 ? All the sodomites have done is to use the Clinton years to regain their 70's momentum. When Bush is reelected, watch them shrivel.
This is a hugh error made by the "public."
It is not incompatible or disasterous to our moral society to simultaneously afford constitutional rights to a "minority" of citizens, homosexuals, and retain a moral and Christian society.
The 9th Amendment, not the 14th amendment, is the constitutional basis for our federal government to recognize the "marriage" of homosexuals for all of the legal reasons, hetrosexuals are recognized.
"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."
Who you wish to "marry" is a right "retained by the people."
It will be religion's failure if there would be an increase of homosexuality after the recognition of homosexual "marriage."
Why does religion need the endorsement of a secular government in order to validate it's covenants and principles?
It is not incompatible or disasterous to our moral society to simultaneously afford constitutional rights to a "minority" of citizens, homosexuals, and retain a moral and Christian society.
Same-Sex "Marriage" and the Threat to Religious Liberty. .pdf file requires Adobe Acrobat Reader.
Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least.
I have never figured out how a State Court can declare the Constitution of the State that empowered it to be unconstitutional!
I hear this and I grieve for my country knowing that with every act of malfeasance by these 'courts' we march, step-by-perilous-step, closer to civil war. If the Courts will raise themselves as our masters then they MUST be overthrown. I would hope to God the Senate would do this but half of the Senate WANTS this to happen!
I would prefer we impeach them. Failing that, we must Act to secure our liberty or surrender it.
There's no possibility our forefathers would have ratified the 14th Amendment if they had even the slightest suspicion that their judicial employees would eventually distort it into an instrument to trash their basic values. They probably recognized that values would change, as time went on, and their laws would need to be revised accordingly; but they knew that's what we have legislatures for; and we get to elect the people who sit in legislatures.
There's no possibility our forefathers intended the 14th Amendment to empower our employees on the Supreme Court to revise the Constitution, from time to time, whenever they thought the legislatures were a bit too slow. The folks who ratified the 14th Amendment viewed the Supreme Court as "a diseased member of the body politic" that was at risk of "amputation" .
"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."
All persons hold the unalienable rights to life, liberty, and property, and therefore they hold equal dignity and protection under due process of law; [all people]
The historic family unit, rooted in heterosexual faithful monogamous marriage and the raising of children is the basic institution in society;
There are those who by choice, circumstance, or the brokenness of adversity who are unable to participate fully or partly as members of the historic family unit;
We affirm: [and there are three points of affirmation]
1. Marriage is defined as the union of one man and one woman in mutual
2. No punitive laws shall exist to restrict private association, whether heterosexual or homosexual; [And there are people on the conservative Christian right that Norm's been talking about tonight who disagree with me on that. You'll find a very strong libertarian ethic, but it's based on a prior definition of equal life for all.] and;
3. All persons shall accept accountability for the public consequences of their private associations and actions, and they shall in no way deprive others of life, liberty, or property.
What I'm saying here is that I disagree with same-sex marriage. I disagree with homosexual relationships. Nonetheless, all people are free to disagree with me as I am with them, so long as we have an understanding of unalienable rights, that everyone has life, liberty and property, free not to be violated by other people. So the real debate comes down to those boundaries. And many acts of a homosexual or heterosexual nature, or other forms of sexuality, do violate life, liberty and property. And I'm equally opposed to all of those because I'm in favor of life, liberty and property. But for those acts of any nature that do not violate them, then people have that freedom in a civil society. And you will not see me pursuing those matters.
The second thing that I want to share with you is a petition that I've circulated around the state. I led off the testimony this year in the statehouse February 11th saying "no" to same-sex marriage. I was part of the same panel last year. And this is actually the summation of my testimony one year ago. And I'll walk through the definition of terms as I go. It's entitled, "Petition to Members of the Connecticut General Assembly."
Yes to man and woman in marriage.
No to same-sex marriage.
[Now an important predicate is, I don't say "no" to anything unless I first say "yes" to something. I think you will find that my agenda is a positive one, and my only concern is to protect life, liberty and property, or should I say, to affirm a government that protects life, liberty and property. I seek to do that myself to begin with. And so the real question is, can we honor these unalienable rights while also coming to a place of difference of interpretation. So my "no" is predicated on a prior "yes."]
As a resident of Connecticut I affirm the following: [and there are four affirmations]
1. In the United States, the civil rights which we all enjoy are rooted in the laws of nature and of nature's God, in the unalienable rights to life, liberty, property and the pursuit of happiness. [I have been in contact with all 187 legislators on this matter, at least five to eight times. I've heard back from 48 of them, and none of them will dispute the statement I just gave to you.]
2. The only source for unalienable rights in all human history is the Creator, the God of the Bible. [I've had a couple of people try to dispute me on this. And some years ago one was Nadine Strossen, who is president of the ACLU. And I said that the only source is the God of the Bible, and she started off that evening, and the topic was homosexuality and civil rights that evening. And she quoted the language from Jefferson, that we hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness. And as she quoted that, I said you started at the same source that I started: unalienable rights. And so I just have one simple question. Who is the Creator that Thomas Jefferson was referring to? And Jefferson was a rationalist. He was not by any stretch an evangelical Christian as myself, and yet he and those with him who were from an orthodox Christian background in a Protestant context, appealed to a source higher than King George III. They appealed to the Creator. So I asked Nadine Strossen, who is the Creator? She looked at me and said well, you have your Creator and other people have their Creators. I said no, you've just described polytheism. In other words, that's not the context to which Jefferson was referring to. And if you look at every polytheistic culture in all of human history, they have no concept of unalienable rights. Rights go to those who are in power, whereas the concept of unalienable rights upon which this nation is founded, are rooted in the biblical understanding of the Creator, that says that all people deserve the same rights because they are people, and not because of any other secondary reason.]
3. The God of the Bible defines true marriage as one man, one woman, one lifetime. [This is the order of creation, the image of God.] The health of society is rooted in this foundation.
4. In human history, no society has ever affirmed both homosexuality and unalienable rights. [So here is an intellectual challenge, to track out history, to find out where unalienable rights are affirmed. And if you can find any society that ever has affirmed homosexuality and unalienable rights together, you won't find it.]
The Fourteenth Amendment does not impliedly extend the first eight amendments to the States. Pp. 124-126 .
We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. [n2] The relevant historical materials have been canvassed by this Court and by legal scholars. [n3] These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a shorthand incorporation of the first eight amendments, making them applicable as explicit restrictions upon the States.
Evidencing the interpretation by both Congress and the States of the Fourteenth Amendment is a comparison of the constitutions of the ratifying States with the Federal [p*125] Constitution. Having regard only to the grand jury guarantee of the Fifth Amendment, the criminal jury guarantee of the Sixth Amendment, and the civil jury guarantee of the Seventh Amendment, it is apparent that, if the first eight amendments were being applied verbatim to the States, ten of the thirty ratifying States would have impliedly been imposing upon themselves constitutional requirements on vital issues of state policies contrary to those present in their own constitutions. [n4] Or, to approach the matter in a different way, they would be covertly altering provisions of their own constitutions in disregard of the amendment procedures required by those constitutions. Five other States would have been undertaking procedures not in conflict with, but not required by, their constitutions. Thus, only one-half, or fifteen, of the ratifying States had constitutions in explicit accord with these provisions of the Fifth, Sixth, and Seventh Amendments. Of these fifteen, four made alterations in their constitutions by 1875 which brought them into important conflict with one or more of these provisions of the Federal Constitution. One of the States whose constitution had not included any provision on one of the three procedures under investigation adopted a provision in 1890 which was inconsistent with the Federal Constitution. And so, by 1890, only eleven of the thirty ratifying States were in explicit accord with these provisions of the first eight amendments to the Federal Constitution. Four were silent as to one or more of the provisions, and fifteen were in open conflict with these same provisions. [n5] [p*126]
Similarly imposing evidence of the understanding of the Due Process Clause is supplied by the history of the admission of the twelve States entering the Union after the ratification of the Fourteenth Amendment. In the case of each, Congress required that the State's constitution be "not repugnant" to the Constitution of the United States. [n6] Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact, all twelve have provisions obviously different from the requirements of the Fifth, Sixth, or Seventh Amendments. And yet, in the case of each admission, either the President of the United States or Congress or both have found that the constitution was in conformity with the Enabling Act and the Constitution of the United States. [n7] Nor is there warrant to believe that the States, in adopting constitutions with the specific purpose of complying with the requisites of admission, were, in fact, evading the demands of the Constitution of the United States.
Surely this compels the conclusion that Congress and the States have always believed that the Due Process Clause brought into play a basis of restrictions upon the States other than the undisclosed incorporation of the original eight amendments.
Homosexual Agenda Ping.
A long read, and the rebuttal of Bork's support of the amendment after. I only read part of Bork's article, liked what I read. I always like Bork. He has great arguments against the libertarian philosophy - the best I've ever read. I hope more scholarly freepers can comment; I'll read the rest later and see I can grasp any of it.
One question that those opposed to a Constitutional amendment protecting marriage have never answered is this:
If you don't want an amendment protecting marriage, how will you prevent same sex marriage from being mandated as the law of the land?
No one has answered that one satisfactorily yet. Most seem to think that "gay" marriage is no big deal.
Let me and Scripter know if anyone wants on/off this pinglist.
Two great reads BUMP. Bork's is great analysis, the latter is a great call to arms on what should really be done.
This isn't an argument against "libertarian philosophy." It's an argument against judicial legislation. And for an amendment that will simply result in more expended effort than it's worth. If the judges were actually worth a damn, this wouldn't have happened in the first place. Bork is suggesting solving the problem with a good editor, when we should be solving it with a Terminator. The problem isn't the document; it's the jackasses pretending what it says isn't important.
Not that Bork is FOR libertarian philosophy--but you don't have to be against libertarian thought to be against the rampant imaginations of Sandra Day and the Supremes. The damage they've done to the notion of a written constitution affording true protections for essential liberties and federalism is far greater than anything a whole century of Democrat presidents could have done.
When I said Bork presentes compelling arguments against libertarianism, I was referring to his book "Slouching Towards Gomorrah" which I have read twice and need to read again. Also need to read his other book... about judicial activism, I think.
Have you read "Slouching"? It's great, if you haven't yet you should.
It's a damn shame he isn't on the SCOTUS.
I have, but not recently (yes, I know, that's often code for "I haven't read it," but I read a lot). I like his stuff generally. I didn't find Slouching completely compelling, however, just as you probably wouldn't find "Ain't Nobody's Business If I Do" the great read I did. I admit that I need to read Slouching again. However, I think his theme that government needs get fixed so that it can clean up society is not one I like all that much. How about government just get out of people's business, personal and professional? That would be infinitely preferable to most people.
I need to read all Bork's stuff again, to be honest. While I disagree with him on much, as I do Justice Scalia and Justice Thomas, and most certainly that odious partisan Rehnquist, Judge Bork is one of the great legal minds of the century and it is a travesty that he is not on the court. I love reading his stuff more than Justice Thomas and almost as much as I like Justice Scalia's. Rehnquist is the legal equivalent of Bill Bennett--occasionally entertaining, but generally a hack with a highbrow attitude. Bork would have meant terror for the left. If he had been remotely telegenic he would be on the Court today and the nation would be a different place.
I have a non-educated mind and heavy reading takes several goes to partially stick.
I want to get my own copies of Slouching and his next book, can't remember the name.
I definitely do not espouse the libertarian worldview; primarily because I know without a doubt that a great many people will either (a) harm others if allowed to do so and/or (b) harm themselves to the point of affecting society (i.e. others such as me) if allowed to do so, with vicious activities if not prevented or punished.
IOW, I consider that moral absolutes are absolutely necessary for human civilization to be human, and after much study I have determined that moral absolutes are essentially the same in every monotheist religion. I am not a sectarianist, most on FR might not call me a Christian; so I am not interested in sectarian designations per se. What I am interested in is understanding what rules are necessary for peace, prosperity and freedom balanced by responsibility.
If people were different, libertarianism would work. Unfortunately they are the way they are.
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