How Federal Judges have Perverted the 14th Amendment.
5. Activist federal judges have committed grievous offenses against the U.S. Constitution with their perversions of the 14th Amendment:
a) They have evaded the constitutional limits on their power to hear cases by
fabricating individual “constitutional rights” from the 14th Amendment so that they can then pretend that the cases “arise under the Constitution”, thereby claiming “federal question” jurisdiction!
Thus, in Roe v. Wade (1973), seven judges on the supreme Court said a
right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153)
makes unconstitutional a
State Law making abortion a criminal offense! Those seven judges just made up a
“constitutional privacy right” which they said was in the 14th Amendment and which they said prohibits States from outlawing abortion!
In Lawrence v. Texas (2003), six judges on the supreme Court said a
Texas Law criminalizing homosexual contact was unconstitutional because it violated practitioners’
…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).
Those six judges just made up a
“constitutional liberty right” to have homosexual contact!
In Perry v. Schwarzenegger, Judge Walker
asserted that “Gender no longer forms an essential part of marriage” (Opinion p.113); and
determined that the “due process” clause of the 14th Amendment contains a “fundamental right” to marry persons of the same sex (p.114, etc)!
He just made up a 14th Amendment “due process right” to marry persons of the same sex!
But abortion, homosexual contact, & marriage are not
provisions expressly contained in the U.S. Constitution. So the federal courts have no “federal question” [or "status of the parties" or "diversity"] jurisdiction to hear these cases!
b) They have evaded the constitutional limits on their powers by
redefining 5 the “due process” clause of the 14th Amendment
from its original meaning of ensuring that freed slaves got fair trials before they could be deprived of life, liberty or property, to seizing power to nullify State Laws they don’t like, and Amendments to State Constitutions they don’t like!
Thus, the supreme Court in Roe v. Wade and Lawrence v. Texas used the “due process” clause to seize power to overturn State Laws criminalizing abortion and homosexual contact; and Judge Walker used the “due process” clause to overturn the Will of the People of the State of California restricting marriage to one man and one woman.
Again, the “due process” clause refers only to
judicial proceedings: That freed slaves couldn’t be lynched, deprived of their freedom, or have their property taken away except pursuant to the judgment of their peers after a fair trial.
“Due process” never involved judicial power to override Acts of the Legislature of a Sovereign State or Amendments to State Constitutions. The sole purpose of the “due process” clause was to ensure that freed slaves got FAIR TRIALS!
c) They have evaded the constitutional limits on their powers by
redefining the “equal protection” clause of the 14th Amendment
from its original meaning of
requiring States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property;
to prohibiting the States from making any “distinctions” or “classifications” in their State Statutes or Constitutions the federal judges don’t like!
Thus, in Perry v. Schwarzenegger, Judge Walker
asserted that Proposition 8 violates the “equal protection” clause of the 14th Amendment because it “disadvantages gays and lesbians without any rational justification” (Opinion p. 135).
6. So! Activist federal judges have been using the “due process” clause of the 14th Amendment to override acts of State Legislatures which outlaw conduct federal judges want to legalize! They simply make up a “constitutional right” to do those things.
Under their view, there is no limit to their powers! State Legislatures criminalize child rape, but 5 judges on the supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty and privacy right” in the 14th Amendment to have sex with children! If these “liberty and privacy rights” mean that women can abort babies, and homosexual contact is lawful; why can’t they also mean that adults can have sex with children? Why can’t they mean that people have “liberty and privacy rights” to commit any crime? What’s the limit?
There IS no limit! Justice Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, said:
…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)
Kennedy just tossed Art. III, Sec. 2 out the door! He and his ideological allies recognize no limits on their judicial power! Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”! And a Law made by a State Legislature prohibiting that act bites the dust. And since supreme Court judges claim the right to “set policy” for all of these United States (and we have let them do it), State laws throughout the land prohibiting that act also bite the dust. And
that is how we got a handful of supreme Court judges setting “policy” for everyone in the country.
7. Abortion, homosexual contact, marriage, prostitution, child sex, drugs, etc. are issues reserved to the States or The People. The federal government is not granted power in the Constitution over these objects, and they are not prohibited by Art. I, Sec. 10, to the States.
The Supreme Court’s Radical Redefinition of “Liberty”
8. The quote from Justice Kennedy shows that federal judges have
redefined “Liberty”: They see “liberty” as freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government – to the contrary, they are determined to force their radical conception of “freedom” down our throats.
But Professor Berger
proves that the framers of the 14th Amendment did not understand “Liberty” as freedom from moral restraints. He
proves that the purpose of the “due process” clause of the 14th Amendment was to protect freed slaves from being lynched, confined, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial; and the purpose of the “equal protection” clause was to require States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property.
9. Do you see how federal judges have usurped powers never granted to them and how they are destroying our Constitution? If we do not insist that federal judges adhere to the “original intent” of the U.S. Constitution (and this original intent is readily ascertainable, Justice Scalia’s comment to the contrary notwithstanding), then the Rule of Law can not be reborn, and we
will fall.
The Remedy for Judicial Lawlessness
10. Are there remedies for this judicial lawlessness?
YES! Congress must use its Impeachment Power to remove the usurping judges. They serve during “good Behaviour” only (Art. III, Sec. 1) and do
not have “lifetime appointments”. Alexander Hamilton addressed judicial usurpations and the judiciary’s “total incapacity to support its usurpations by force” in Federalist No. 81, 8th para:
…the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations…
Now
you know that federal judges can be impeached, convicted & removed from the bench for usurping power. The Rule of Law does not require us to go along with all court decisions. Rather, if the decision is an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.
Our Rights do NOT Come from the Constitution!
11. Finally, a word about our Rights: The Constitution is about the Powers which We the People delegated to the 3 branches of the federal government. It is NOT about our rights, which come from God, are unalienable, and predate & pre-exist the Constitution!
We created the Constitution and the federal government! Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define our Rights?
Endnotes:
1
State legislatures may make laws re abortion, homosexuality, marriage, etc. as permitted by their State Constitutions. But as these are not among the enumerated legislative powers of Congress, Congress is not permitted to make laws on these subjects. Neither are federal judges.
2 Hamilton says this is the only instance where the Constitution contemplates the federal courts hearing cases between Citizens of the same State. (Federalist No. 80, 3rd para from end).
3 The 11th Amendment (ratified 1795) withdrew from federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.
4 What a mind! All those Hamilton haters who parrot the lies about how Hamilton was a “statist”, etc, demonstrate a profound ignorance of The Federalist Papers & The U.S. Constitution.
5 When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V. Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”.
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