Unconstitutional Court Rulings

By Douglas V. Gibbs

If you look inside the pages of the United States Constitution, among the expressly granted authorities to the federal government, you will never find judicial review.  In fact, the judicial branch was originally intended to be the weakest of the three branches of government.  Yet, using the power of judicial review, of which the courts granted to themselves largely based on the written opinion of Chief Justice John Marshall regarding the Marbury v. Madison ruling in 1803, the Supreme Court recently set the U.S. Constitution upon the final path towards extinction with rulings regarding marriage, health care, and elections.

In the cases of health care and marriage, the high court sided with federal control over issues that have never constitutionally been authorized to the federal government.  In the case of elections, the Supreme Court of the United States determined that States cannot verify citizenship of voters at the time of registering to vote, despite the fact that the manner in which the electoral process is held is largely left to the States, and one must be a citizen in order to vote in the first place.

We the People, through our States, are the authors of the social contract we call the U.S. Constitution.  Prior to the writing of the Constitution, the States had original authority over all powers.  The States granted some of their powers to the federal government so that the central government may take care of external issues like common defense, trade with other nations, and diplomacy; and issues regarding preserving the union like the postal service, resolving disputes between the States, and securing the national border so as to protect the States from invasion, or imminent danger.  Local issues belong with local government, and the central government was established to handle other issues that are not necessarily local.  The powers not granted to the federal government, and not prohibited to the States by the Constitution in places like Article I, Section 10, are reserved to the States, or to the people (as per the Tenth Amendment).  This concept was established specifically to keep the federal government from intruding upon issues that are best left to local governments, and draws from the concept of "self-governance."

Separation of Powers is a concept that is closely tied to the distribution of authorities among the many parts of government.  In addition to the separation of powers between the federal government and the States, there is also a separation of powers between the branches of government.  In the first sentence of each of the first three articles of the Constitution the Separation of Powers is defined.

Article I, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article II, Section 1: The executive Power shall be vested in a President of the United States of America.

Article III, Section 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Legislative Powers are the authority to make law, modify law, and repeal law.

The executive Power is the authority to execute the laws of the land as they are written by Congress, and the execution of these laws may be carried out through regulatory agencies, and executive departments.

The judicial Power is the authority to rule on cases within the authorities granted by applying the law to the cases.

In the case of the federal courts, the judicial Power does not include interpreting the Constitution, or applying their opinion to the law in order to change it.  The judicial Power also does not include taking cases that are not authorized to the federal government, and then striking down State laws or State Constitutional Amendments on State issues.  These issues are to be addressed by the representatives or the people within each of the sovereign States.

It is a common argument that the courts exist to interpret the law, but if they are interpreting the law in a wrong manner, how are we to do anything in response to their "interpretation" if their decision is considered to be final, and if we don't understand the language of the law in the first place?

In the Declaration of Independence, the language reveals to us that we are the possessors of Natural Rights.  Our rights are given to us through the Laws of Nature and of Nature's God.  We are "entitled" to those rights, "endowed" by our Creator to possess those rights, and the truth of our ownership of our rights, and the nature of those rights, is "self-evident."  We own our rights, and they are unalienable, or inseparable, from us.  Even if imprisoned, though I would not have access to my rights, those rights would still belong to me.  Because we have ownership of our rights, it is our responsibility to defend those rights, to take the actions necessary to preserve our rights and to protect our access to those rights.

There is no such thing as "Constitutional Rights."  The Constitution does not grant us our rights, nor does it guarantee our rights, no more than the Constitution would grant or guarantee your ownership over a piece of personal property.  That property, like your rights, belongs to you, and it is your responsibility to secure your property against those that may desire to take that property away from you.  To assist us in securing our rights, government has been created.  For example, your right to your private property cannot constantly be secured by you when you have to depart your home to go to work.  Therefore, to help secure your property, government has been created so that there may be law enforcement or fire protection.  These services help secure your property, but they do not guarantee that your property will be in the same condition you left it in when you return.  It is likely your property will be protected, but much of that depends upon your own actions.  Did you lock your door?  Do you have a security system in place?

Your rights require that you take action to defend and protect them.  The Bill of Rights, for example, was not written to ensure that the federal government guarantees those rights.  The Bill of Rights was written to tell the federal government that your rights are none of their business.  Your rights belong to you, and the message to the federal government is, "hands off," "don't touch."

The First Amendment begins, "Congress shall make no law."

The Second Amendment ends, "shall not be infringed."

The Third Amendment begins, "No Soldier shall."

The Fourth Amendment instructs that the government "shall not" violate your right to be secure in your "persons, houses, papers, and effects, against unreasonable searches and seizures."

The Fifth Amendment explains that the government shall not deprive you of your "due process of law."

In other words, the Bill of Rights does not guarantee you your rights, or tell the federal government to guarantee those rights, but the Bill of Rights says to the federal government that our rights are none of their business.  Your rights were given to you by God, and government has no claim over them.

Understanding the nature of your rights, and to whom they belong, helps us understand that the federal courts cannot constitutionally take a case just because it is believed it is in regards to your "constitutional rights."

The idea that the federal government has that power comes from the Equal Protection Clause of the 14th Amendment, which expanded upon the language in Article IV., the "Privileges and Immunities" Clause, which demands that the citizens of each State be treated equally under the law.  In some cases, where States used tactics to steer around such a requirement, the Constitution has been amended to address such infractions.  For example, in an effort to keep blacks from voting, the Democrats in the Southern States had in place a policy of "Poll Taxes."  Poll Taxes are a kind of capitation, or "head tax," that required a tax be paid by each individual in order to vote.  The tax, since most blacks were too poor to afford the tax, was a way to keep blacks from voting, while not violating the Equal Protection Clause because all people were equally required to pay the tax regardless of who they were, ensuring that technically folks were being treated equally under the law.  The 24th Amendment was proposed and ratified in order to end the practice of poll taxes in the States.

Prior to the 24th Amendment, poll taxes were perfectly constitutional.

Your rights, then, are not something that should be handled by the federal government unless there is an Amendment specifically addressing such an issue.  The federal government is prohibited from making laws, or legally ruling through the judiciary, on your rights.  Your rights are something that must be handled at the local level.  The Bill of Rights specifically applies to the federal government, and not to the States.

For example: The Second Amendment addresses the right to keep and bear arms, explaining that the right is "necessary to the security of a free State" (a free California, a free Virginia, a free Illinois, and so forth), and that the right "to keep and bear Arms, shall not be infringed."

"Shall not be infringed" is a pretty definitive phrase.  It says, "hands off, do not touch."  What that means is that every single federal gun law is unconstitutional, including background checks and waiting periods.  But, should the language of the Second Amendment also apply to the States?  Should the States be prohibited from infringing on the right to keep and bear arms, as well?  Or, should a State, if the people in that State find it necessary, be able to regulate guns or gun ownership?  Should a criminal who shot people during an armed robbery let out of prison for good behavior be able to go out and buy a gun immediately after being released from his state of imprisonment?  Or, should your local government be able to set standards regarding gun ownership in order to protect the populace from that kind of person have such easy access to a firearm?

Folks love to say to me, "But what if the States also become tyrannical and begin to unfairly infringe upon our right to keep and bear arms?"

My response is, "Don't let them.  With freedom comes responsibility, which includes the responsibility of ensuring the power players in government are kept in check."

Eternal vigilance, my friends.  Liberty requires eternal vigilance by all members of society.  Our laws are influenced by those that participate.  If you are not participating, you are a part of the problem.

Locally, it is the responsibility of We the People, and our State representation, to properly handle these issues regarding our rights, and it is none of the federal government's business how we handle those issues locally, even if they think we are doing it wrong, and they are somehow so high and mighty that their decision should rule over ours.

The reason for this opportunity to exercise some regulatory power regarding rights at the State level is because rights are not cut and dry.  Your right to swing your arms, for example, stops at the tip of my nose.  My right to own a firearm stops if I abused that right and the other gun owners and citizens are fearful as a result of my continued ownership.  So, locally, laws can be made to protect the public.  We just have to make sure we don't cross the fine line between responsible regulation, and tyranny.  As a virtuous society, that fine line is self-evident.  If we become a debauched society, we struggle to recognize that line, and it is inevitable that we will cross it.

It's like when we think about stop signs on the roadway.  Sure, I may think I should have the right to cross an intersection without having to slow down and stop.  But what about the other cars?  Does not my right to fly through an intersection come under scrutiny because other drivers will then be interfered with as a result?  So, as a virtuous people, we establish stop signs, and everyone abides by them regardless of the limiting nature they present.  But if we are a debauched society, the rule of law no longer applies, and the stop sign begins to mean whatever we want it to mean.  In a culture like that, do you think the occurrence of violent collisions will increase?

When a society ceases to be a virtuous society, the violent consequences of debauchery are inevitable.  If we are not a society that practices a firm reliance upon the protection of divine Providence, standards become corrupted, and liberty is placed in jeopardy.

This is where the ruling regarding homosexual marriage enters the picture.  I get it.  People want to love, or have physical relations, with whom they desire.  There are people who would like to be able to do a number of things in society that is not culturally acceptable, and/or intrudes upon the rights of others.  Having your "lifestyle" is your choice.  Fine.  Have you lifestyle.  But at what point does that behavior interfere with the rights of others?  At what point does using the coercion of law to force compliance become tyrannical?

Homosexuality carries with it a very despotic nature.  From a Christian point of view, homosexuality is a sin, so the purveyors of the gay lifestyle are intent on justifying the behavior.  Therefore, they feel obligated to label their "struggle" as a civil right that is somehow on the same level as racial or gender related struggles for equal rights.  However, the majority of the people have been reluctant to side with the homosexual agenda, so the slow evolution of societal acceptance without using some kind of prod to move the herd in the direction they desire was not an acceptable plan.  The gay lobby has resorted to using the force of law to coerce the public to accept them, and their behavior, as normal, or suffer the full penalty of law.

The problem is that there is no authority granted to the federal government in the Constitution regarding marriage.  Therefore, as per the 10th Amendment, marriage is a State issue. . . and in my opinion, a church issue.  By unconstitutionally pulling the federal government into their fight for justifying their sin, the homosexual agenda has taken their case all the way to the Supreme Court, and now with a ruling that struck down State laws on the issue, it is now believed that nobody can "discriminate" against gays in any way, shape or form.  With that power in their hands, the homosexual agenda has now indicated they plan to target businesses, learning institutions, religious institutions, and anything else they can attack, to ensure there is no "discrimination" against gays.

Homosexuality is a social issue, a morality issue that Christianity stands against.  Religiously, the behavior is considered sinful, and dangerous to the proper functioning of a society, largely because the family unit is among the foundational building blocks of a successful and prosperous society.  The Bible is filled with verses cautioning against homosexuality, not just because it is a behavior that is sexually deviant, but because of the nature of the "lifestyle," which can be destructive to the cultural adhesion of a society that remains free primarily because it is a "virtuous" society.  If a culture abandons its godly nature of virtue, it is incapable of freedom.

As a result of the Gay Marriage court ruling by the United States Supreme Court, all five rights enumerated in the First Amendment are at risk.  If one is unable to hold a religious opinion against homosexuality, it places one's right to practice one's religion freely at risk.  By passing pro-homosexual legislation in response to the ruling, Congress will be making law prohibiting the free exercise of religion, an action expressly prohibited by the First Amendment.  One may also suggest that the Congress would be making law respecting an establishment of religion, a religion some may know as "secularism."

Our Freedom of Speech, the second right enumerated in the First Amendment, is also at risk.  At what point will voicing an opinion in opposition to the gay agenda result in fines or jail time?  Through political correctness we are already being told that we must hold our tongue on this issue.  Free speech that disagrees with liberal left policy is already not acceptable in many circles, and in many cases is considered "hate speech."  Will hate laws eventually be passed to fight against "discrimination" against homosexuals?  At what point will the Holy Bible be labeled as a "hate speech document," and be outlawed or banned as we are now seeing the left attempt regarding any icons that might remind us of the Old South and the Confederate States (since the liberal left has blamed the confederate battle flag for the Charleston shooting)?

Freedom of the Press, the third right enumerated in the First Amendment, is already under attack.  Not only are outlets that do not fully agree with leftist propaganda, such as Fox News or the Drudge Report, under constant assault, but there is also the constant threat of bringing back the "Fairness Doctrine," which does not allow an opinion to be voiced without the opposing opinion immediately being provided.  Of course, when it comes to leftists beliefs, such a "fairness" approach is never considered.  Evolution and the pro-homosexual agenda come to mind.  Eventually, reporting in a manner that may be construed as "discriminatory" against homosexuality will be censored, and banned, on the airwaves.

The fourth enumerated right in the First Amendment is the "right of the people to peaceably assemble."  Freedom of Assembly was a very important right to the colonists as they approached the American Revolution.  Can I have "Straight Pride" meetings?  How about a "Straight Pride" parade?  How about a "Heterosexual Book Club?"  Will our right to assembly be honored if we had a "Traditional Marriage Convention" in San Francisco?

I see no arguments against Gay Pride events.  I may disagree with their behavior, and believe they have dangerous plans for this country, but their right to assembly has always been honored.

The final right enumerated in the First Amendment has already been taken from you in regards to the homosexual agenda.  Unelected people in black robes have determined that the laws of States, and the petitions of We the People regarding homosexual marriage, do not matter.  You do not have the right to "petition the Government for a redress of grievances" because the matter has been settled by the Supreme Court.  It doesn't matter if marriage is a State issue, and it doesn't matter if you have a religious or political opinion that opposes gay marriage.  Your petitions are no longer acceptable on the matter.  The matter is settled, and the Supreme Court has ruled against there ever being petitions for a redress of grievances to the government on the matter of homosexuality, or gay marriage.

In a debate regarding the judicial oligarchy we have seen on the rise in this nation, I always refer back to the Constitution.  My first argument is that the Founding Fathers sought to create a federal government, but limit its authorities through the chains of the Constitution.  The authorities to the federal government are few, and expressly enumerated, and in order to add any authorities, such a request is subject to 3/4 ratification by the States through the Article V. amendment process.  However, with Judicial Review, the federal courts are told they have the authority to determine the constitutionality of any law, even State laws on State issues.  To determine the constitutionality of laws is to determine where the authority lies regarding those issues.  The federal courts, including the United States Supreme Court, are a part of the federal government.  Therefore, in these rulings, what we have is the federal government deciding for itself what its own authorities are.

In what way does that conform to the concept of limited government?

Lastly, the concept of Americanism revolves around self-governance.  Europe doubted America would survive because they believed a nation cannot survive without a ruling elite making all of the decisions for the uninformed public.  They believed in a general will, a will of the people that only the ruling elite could recognize, and if any person was to oppose the laws by the ruling elite to achieve the general will, that person must be restrained by the body politic.  Man must be forced to be free.  In America, we rejected such philosophies, and the Founding Fathers rejected the concept of a ruling elite that made all of the decisions. However, they did not go to the opposite extreme of democracy, either, understanding that a tyranny of the majority carried with it dangerous possibilities, as well.  So, we have a representative republic that includes checks and balances that, early on, largely included the presence of the State legislatures, as well.  As a result, the United States of America prospered, and grew to become the world's primary world power.

The Constitution begins with the words "We the People of the United States," a phrase I often paraphrase as saying, "We the People of these States that are united."  So, understanding that the Constitution was written by the people, of the people and for the people, and that the people and the States are the authors of that document, and the final arbiters of what is or isn't constitutional, do you think the Founding Fathers would have supported the concept that all laws and questions of constitutionality would rest upon the shoulders of nine unelected people in black robes who think they are above the law and can decide what the law says despite how the law is expressly written or how the Constitution was written, drawing instead upon case law (opinions of other judges in history) or ideology? And, if you really want to be accurate, our nation is really upon the shoulders of a swing vote like Justice Kennedy.  Does that fit the concept of limited government?  Does such a system where such a small number of unelected lawyers that are supposed to somehow fit into the concept of checks and balances designed to protect our nation from the oligarchical rule of a powerful few truly reflect the concept of limited government as provided by the Founding Fathers and the United States Constitution?

-- Political Pistachio Conservative News and Commentary