Thomas Jefferson Articulates the Remedy of NULLIFICATION in an Opinion Written to George Washington in 1791

THOMAS JEFFERSON - wire glasses

by Diane Rufino, September 16, 2018

In 1791, Thomas Jefferson wrote an opinion on the constitutionality of a National Bank. It is an important commentary on the meaning and intent of the US Constitution, in particular the two general clauses – the General Welfare Clause and the Necessary and Proper Clause.

President George Washington’s Secretary of the Treasury, Alexander Hamilton proposed the creation of a national bank. He advised that a national bank would “give great facility or convenience in the collection of taxes” and would facilitate the government’s assumption of the states’ Revolutionary War debts, thus serving the taxing power of the federal government. Not sure if such a bank was a constitutional exercise of government legislative power, Washington asked Hamilton and Jefferson, his Secretary of State, to articulate their positions.

And so, on Feb. 15, 1791, Jefferson submitted an opinion to Washington against the creation of a National Bank, explaining that it was not authorized by any specific delegation of power nor was it contemplated by any of the general clauses. In specific, he articulated that the “Necessary & Proper” Clause meant that Congress could take action only when it was necessary (and proper) to bring into effect any of the specifically enumerated powers; that is, without those means without which the grant of power would be meaningless. The clause did not mean Congress could pursue action that was merely convenient or helpful.”  Jefferson said that all the functions of which Hamilton was concerned – the collection of taxes, the paying of war debt, etc – could all be carried into execution without a bank. Therefore, as a constitutional matter, he concluded that a bank was not necessary, and consequently not authorized by the “Necessary & Proper” phrase.

Hamilton’s opinion was different. He argued that the Constitution, in Article I, Section 8, created a legislature not only of specific powers but of implied powers as well.

In the end, the House and then the Senate approved a bill establishing a charter for the first National Bank, and President Washington, siding with Hamilton, signed it. The first Bank of the United States was built in Philadelphia.

Chef Justice John Marshall, the man credited with transforming the role of the Supreme Court, later chose to ignore Jefferson’s opinion and commentary when the constitutionality of the national bank came before the Court in 1819 – in McCulloch v. Maryland.  His opinion in that case echoed Hamilton’s view that the federal government is indeed one of express AND implied powers, an issue that was DIRECTLY addressed and dismissed at the Constitutional Convention in 1787 and again when states expressed concern in their ratifying conventions.

While this Opinion by Thomas Jefferson shows us how our federal judiciary willingly chooses to ignore four country’s most important and most credible authority on the meaning and intent of the Constitution when it is faced with the chance to assign greater power to the federal government, there is another reason why this opinion is important: It explains the intended checks and balances on the federal legislature, both horizontal and vertical. The Supreme Court would later find the most important check to be unconstitutional. Imagine that.

At the end of his Opinion, Jefferson writes:

“The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.”

In other words, the rightful checks on the lawmaking power of the US Congress include:

(1)  The President (he can veto or refuse to sign the bill into law; or he can, by Executive Order, explain that certain provisions are unenforceable because they exceed authority)

(2)  The courts  (the federal courts can strike down a law as “unconstitutional”)

(3)  The States and State legislatures (The States can separately find a federal law to be unconstitutional, per their understanding of the Constitution and per their reserved powers under the Tenth Amendment)

Number (3) above is NULLIFICATION and includes INTERPOSITION. These are the rightful remedies reserved to each State, according to Jefferson when the federal government exceeds its delegated authority under the Constitution and specifically, when it attempts to legislate in areas reserved to the States under the Tenth Amendment. A law passed without constitutional authority is a law is a nullity; it is unenforceable.  And it SHOULD be.  It is up to the States, as the most important of the Checks and Balances (a vertical check) to make sure that the people, protected by the Constitution as to the lawful bounds of government, are not subject to unconstitutional laws.

Here you have it, from the earliest days of our republic, the clear and simple articulation of the right of Nullification.

Jefferson, of course, would go on to articulate it much more clearly and forcibly, in the Kentucky Resolves of 1799 (a series of resolutions he wrote secretly for the Kentucky state legislature to oppose the highly unconstitutional Alien & Sedition Acts, enacted by the administration of John Adams. In the Kentucky Resolves of 1799, Jefferson wrote:

“If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.”

Nullification is, and has always been, a rightful remedy by which each State can review the constitutionality of government acts and policy (and even federal court opinions) and if an abuse is found, to protect the citizens in their States from the tyranny that would result from their enforcement.

 

References:

Thomas Jefferson, Opinion on the Constitutionality of a National Bank, Avalon Project (Yale Law School).  Referenced at:  http://avalon.law.yale.edu/18th_century/bank-tj.asp

Thomas Jefferson to George Washington, February 15, 1791, Opinion on Bill for Establishing a National Bank, from the Works of Thomas Jefferson in Twelve Volumes, from the Library of Congress.  Referenced at:  https://memory.loc.gov/service/mss/mtj/mtj1/013/013_0984_0990.pdf    [NOTE:  The Library of Congress was formed when Thomas Jefferson donated the contents of his personal library]

The Kentucky Resolves of 1799 (The Constitution Society).  Referenced at:  http://www.constitution.org/cons/kent1799.htm

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OBERGEFELL v. HODGES: The Scathing Dissent by Chief Justice John Roberts Explains Why the Majority Opinion Was an Abuse of Judicial Power Under the US Constitution

 

GAY MARRIAGE - Mitch and Cam (2)

by Diane Rufino, March 16, 2018

“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  — Chief Justice John Roberts, dissenting opinion, Obergefell v. Hodges (2015)

I’ve been writing articles for years, mostly to help enlighten and educate others who may not have the time or opportunity to read as much as I have. The Tea Party movement – whether you choose to believe it to be a physical grassroots movement to help return our country to its intended constitutional design or a intangible gut reaction by the American people in response to years of destructive progressive policies that have resulted in our large, bloated, ineffective, wasteful, overly-imposing, over-regulating, aggressive, elitist, condescending, above-the-law, and unconstitutional government and in too much intrusion in their lives, too many conditions on their rights, and too much control over their decisions and their property – has awakened a new era of patriotism. It has resulted in a return to education on our founding documents and founding values, it has resulted in a good chunk of the American people wanting to understand how our government got so oft-kilter and how such disastrous policies resulted from it, it has resulted in a good chunk of the American people devoting their spare time to “watchdog” activities in which they watch and research actions by their local, state, and federal officials, it has resulted in a good chunk of the American people keeping informed and updated on the issues, and it has resulted in a good chunk of the American people (true conservatives) taking an active role in politics and committing themselves to finding and supporting conservative, fiscally-responsible, constitutionally-minded individuals for office. The Tea Party movement, again, whether a physical grassroots movement or simply the gut reaction of individuals to reaffirm America’s ideals, has spurred a new “revolutionary” spirit in this county, determined to reel back the disastrous policies of the past half of a century or more, determined to bring back the absolute protections of our founding generation for the rights and declarations recognized in the Bill of Rights, including religious liberties, the right to have and bear arms, free speech, and the reserved powers of the individual (free) states.

And so, most of what I write seeks to educate on what our Founding Fathers sought to establish with this union of states that we call the United States and then what they, in fact, did establish. I spend a lot of time writing about history and the using history to explain the meaning and intent of our founding documents, including the Declaration of Independence, the Constitution, and Bill of Rights. I also spend a lot of time writing about the different remedies to address the various violations by the three branches of government. The hope in all my writings is to help Americans adopt the proper mindset necessary to recognize abuses by the federal government (and why they are abuses) and to then seek the proper remedies in order to stem the obvious slide into government tyranny that we have been witnessing over the past many years (but which is now in overdrive). The proper mindset is the key. The hope is, through education and a re-acquaintance with our founding principles (and the compelling history behind them), to spark a fire in them which reminds them of the American revolutionary spirit: “We don’t have to take it!”  To take the abuse that government unconstitutionally exercises is to give up on the American dream of our founding generation, to give up on the notion that individual liberty is worth defending, and to willfully give up the awesome responsibility we have as Americans to preserve what was handed to us by our forefathers to subsequent generations.

The first step, of course, is to recognize the violations committed by the branches of the federal government –  all three of them. And then, most importantly, to seek to do something about them.

We’ve heard of abuses of power by the federal legislative branch and by the executive branch. The Affordable Care Act (“Obamacare”), as written, intended, and passed by Congress on March 23,2010, was an unconstitutional piece of legislation (the Supreme Court admitted so, exceeding the limits of the Commerce Clause, upon which the government attempted to support its authority) and portions of the 2017 National Defense Authorization Act (NDAA) are as well [the annual military budget continues, from the 2012 NDAA, to include a provision which allows for the indefinite detention of American citizens without a right to trial, undermining essential guarantees provided by the Bill of Rights, including the Fourth and Fifth (Due Process) amendments, and as well as the guarantees provided to an “accused”]. The mass surveillance and collection of ordinary citizen’s phone data is an unconstitutional violation of the Fourth Amendment. The Federal Grant and Cooperative Agreement Act, as well as other federal grant-related legislation, which seek to do an end-run around the Constitution by funding state projects with federal conditions and strings attached, are probably unconstitutional as being without a proper grant of authority under Article I, Section 8 (“to provide for the General Welfare” is not in and of itself a separate grant of power and hence also not legitimate under the taxing and spending power). The Reconstruction Acts were unconstitutional and the Depression-era programs created by Congress during FDR’s administration were unconstitutional. Any proposed gun control law raising the age to 21 for the purchase of handguns would be unconstitutional. President Obama’s executive department weaponized the IRS to target Tea Party and other conservative groups only and prevent them from organizing and thus minimizing their effect in the 2012 election. His Justice Department weaponized the FISA program to go after the Trump campaign in an attempt to effect the outcome of the 2016 presidential election and then (when Hillary didn’t win), to fabricate a false claim of collusion with the Russians to poison his presidency.

In all these instances, the legislative and executive branches have exceeded or are exceeding the power to govern delegated to them by the States in the US Constitution.

But what no one talks about is the abuses by the third brand of government, and perhaps the most powerful one – the judicial branch. Everyone assumes that its opinions are legitimate exercises of judicial power. We so often hear the line: “Well there’s nothing we can do about it now. The Supreme Court has spoken.” The men and women in black robes who sit on the federal benches have immense power. And all too often, they abuse it.  We’ve all heard of judicial activism – the making of law from the bench, which is unconstitutional as violating the Separation of Powers doctrine, or the ruling on “political matters” which is unconstitutional under the Political Question doctrine, or the ruling on matters not addressed in the Constitution which is unconstitutional since the courts only have legal jurisdiction on the interpretation of the Constitution and laws made in furtherance of its legitimate powers. The problem is that no one can do anything about it.  Or they just aren’t willing to.

Some Supreme Court cases which are likely unconstitutional are as follows:  Flemming v. Nestor (1960, in which the Court substituted its judgement for the Congress and recharacterized Social Security deductions, declaring that amounts taken out of an employee’s paycheck for the Social Security program are no longer personal property but property of the federal government so that Congress can have flexibility to use the money as it believes is necessary), Everson v. Board of Education (1947, in which the Court erected the “Wall of Separation” between Church and government to set a boundary on the Establishment Clause; the “wall of separation” is a legal fiction and has no basis in law or commentary on the meaning or intent of the Constitution), Roe v. Wade (1973, in which the Court not only usurped a rightful reserved power of the individual States, in violation of the tenth amendment, to regulate on abortion, but also found a fundamental right to an abortion on demand in the Constitution, thus denying the right to life to an unborn even up to the very moment prior to its delivery), Swann v. Charlotte-Mecklenburg Board of Education (1971, in which the Court not only made law from the bench but also usurped a rightful reserved power of the individual States, in violation of the tenth amendment, to regulate on education; there is NO constitutional basis to force states to bus its children arbitrarily to schools out of their residential area to meet racial quotas), Miranda v. Arizona (1966, in which the Court ruled, without any basis to do so, that special guarantees – in the form of the Miranda Warning – are needed to protect the constitutional rights in the 5th, 6th, and 7th amendments of a criminally-accused; again the Court established constitutional policy and guidelines for law based on a legal fiction), National Federation of Independent Business v. Sebelius (2012, the “Obamacare” decision, in which the Court substituted its judgement for the Congress re-characterizing the mandate from a “penalty,” as Congress intended, to a “tax,” and in doing so saving the law from being struck down as unconstitutional under the Commerce Clause to being supported by the Taxing power; note that the recharacterization was still an unconstitutional use of the taxing power because the mandate still “acts” like a penalty or punishment, which is an improper, and unconstitutional use of the taxing power), and Obergefell v. Hodges (2015, in which the Court usurped the legitimate reserved power of the individual States to regulate on marriage).  With respect to Circuit Court decisions, those striking down President Trump’s travel bans are unconstitutional (the president has the express and unlimited power to regulate on which persons or groups of persons can come into the country) and the opinion of the Fourth Circuit in 2016 (NC State Conference of the NAACP v. Pat McCrory) striking down the NC Voter ID law (not only substituting its judgement – an offensive and defamatory judgement by the way – for that of the state legislature and also ignoring the Supreme Court’s holding in Shelby v. Holder, in 2013, striking down the preclearance requirement of the Voting Rights Act of 1965, but blatantly usurping the legitimate reserved power of the State of North Carolina under the tenth amendment to regulate its elections and violating Article IV, Section 4 of the US Constitution which assures that the federal government will guarantee each State a democratic form of government) is unconstitutional.

Addressing an audience at a Pew Forum Conference (themed: “A Call for Reckoning”), Justice Antonin Scalia spoke these words: “My difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. The Constitution gives the federal government and, hence, me, as a justice of the Supreme Court, no power over the matter.”  He continued: “The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution – not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone – and not lawyerly dissection of federal judicial precedents – can produce compromises satisfying a sufficient mass of the electorate. The Court should end its disruptive intrusion into this field as soon as possible.”

The Supreme Court may have given itself the final word on the meaning and intent of the Constitution and the laws made in furtherance of it (Marbury v. Madison, 1803; see below), but it was the ambitions of the progressive movement at the end of the 19th century which led to an even more expansive, and dangerous, view  of the judiciary. In this progressive expansive view, federal courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash. Since federal judges and justices are appointed for life, they can do what they like from the bench without voter backlash, including ignoring the legal meaning of the Constitution.

“What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, wrote Justice Scalia in his dissenting opinion in the case Wabaunsee County, KS v. Umbehr (1996), ”that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?”

The judiciary is truly an untouchable branch.

Again, the problem is that no one can, or is willing, to do anything about the abuse of constitutional powers with respect to the Supreme Court or lower federal court opinions that are final decisions. Yet there are rightful remedies that I have written about, including nullification and interposition.

 

THE FEDERAL JUDICIARY

SUPREME COURT (2017)

The facts of the case are simple enough.  In the last days of President John Adams’ presidency, he nominated a number of people to serve as justices of the peace for the District of Columbia. The Senate confirmed the nominations, and the commissions were prepared. President Adams’ Secretary of State, John Marshall, did not deliver all of the commissions before President Thomas Jefferson took office on March 4 (because he was also acting as the newly-appointed Chief Justice of the Supreme Court, being sworn in on Jan. 31). President Jefferson then ordered his Secretary of State, James Madison, not to deliver the commissions. The plaintiffs, men who were appointed but whose commissions were not delivered, sued Madison in the Supreme Court and argued that, in refusing to deliver the commissions, the Secretary of State was neglecting his Constitutional duty. The important detail is that they sought relief in the Supreme Court, under its original jurisdiction (court of first review, not as an appeal), which was a remedy specifically provided in the Judiciary Act of 1789. They could have sought their commissions through other avenues but the particular remedy they pursued was through the Judiciary Act.

The Court, with Marshall as its new chief justice, dissected the case into three questions: (1) Do the plaintiffs have a right to receive their commissions?  (2) Can they sue for their commissions in court?  (3) Does the Supreme Court have the authority to order the delivery of their commissions?  The importance of the case is not in the answers to these questions but in the opportunity that Marshall used to articulate a critical role for the Supreme Court and in doing so, securing it as an omnipotent branch of the government.

In its answers to the above questions, the Supreme Court held that the Constitution grants the president the power to appoint and commission officers of the United States. Because the only evidence of the appointment is the commission, the two actions are tied together. Without the commission, the appointment is not complete, and so the president’s signature on the commission and its delivery are the final steps in the appointment process.  However, the Court held, once an appointment is made, the officers have acquired rights to their positions under the law. If those rights are denied, then they may seek redress in the courts. But the fatal decision that Marbury made, and the others as well, was to seek an original action for their commissions in the Supreme Court. As Marshall noted, the congressional act, the Judiciary Act of 1789, conferring that authority to the Court conflicts with Article III Section 2 of the Constitution. The judicial power in the United States extends to all cases under the Constitution and the Supreme Court is bound to decide cases according to the Constitution rather than the law when the two conflict. So, if a law is found to be in conflict with the Constitution, then the law is invalid (= “judicial review”).  In this case, Section 13 of the Judiciary Act ran counter to the Constitution and is therefore void. Thus, lacking authority, the Supreme Court canceled Marbury’s claim.

In other words, although Marbury was entitled to his commission, the Supreme Court was unable to grant it because Section 13 of the Judiciary Act of 1789, assigning that power to the Court, conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void. Marshall articulated that this analysis (judicial review) was the process by which to maintain the supremacy of the Constitution. He was not the first to articulate or apply judicial review; the state courts were already applying such analysis for their own constitutions. But, he reasoned, one court must be responsible for interpreting the Constitution and saying what the law is and that court MUST be the US Supreme Court (ie, the federal courts). “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”  Marshall advanced a position not assigned in the Constitution nor articulated in the essays explaining the Constitution and its provisions, as well as the anticipated operation of the federal government.

The next assault on the design of the federal government, at the hands of the Supreme Court, came in 1819 with the case of McCulloch v. Maryland. In that case, Chief Justice Marshall considered the question of how to construe the government’s powers in Article I, Section 8 – namely thru the “Necessary & Proper” Clause (a common legal clause included in contracts to give force to the responsibilities listed in the contract; in Article 8, it gave force (but strict limits) to all the powers enumerated before it). In considering that question, he reviewed advice given to President George Washington by both Thomas Jefferson, his Secretary of State and a man devoted to a small government of limited powers, and Alexander Hamilton, his Treasury Secretary and a proponent of a large government of concentrated powers, as to whether his administration had the power to establish a national bank, as Hamilton requested. Jefferson, naturally, advised that the government’s powers in the Constitution must be construed exactly as written, and thus construed narrowly, while Hamilton advised that they need to be construed broadly. Washington sided with Hamilton. And so did Marshall. Writing for the Court in McCulloch, Chief Justice Marshall interpreted the “Necessary & Proper” Clause (government can do whatever is “necessary and proper” to carry out its functions) to mean that the government can do anything it feels is “convenient” and makes it easier to carry out federal power. He articulated that Congress possesses unenumerated – or “implied” – powers not explicitly outlined in the Constitution, and thus, the government is one essentially of unlimited powers.

John Marshall, the fourth Chief Justice of the United States, appointed by President John Adams, presided over the Supreme Court longer than any other occupant of that chair – for 34 years (1801–1835). Because the Court was a relatively insignificant legal forum when he arrived but became the most powerful court in the land by the time he died, Marshall, for bad or good, is justly the most celebrated judge in our history.  The federal courts were a particular area of interest for outgoing President Adams in the wake of the presidential election of 1800. With the Federalists soundly defeated and about to lose both the executive and legislative branches to Jefferson and the Democratic-Republicans, Adams and the lame duck Congress passed what came to be known as the Midnight Judges Act, which made sweeping changes to the federal judiciary, including a reduction in the number of Justices on the Supreme Court from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred. As the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams wanted to replace him with a younger justice before he left office. He first offered the seat to ex-Chief Justice John Jay (one of the authors of the Federalist Papers essays), who declined on the grounds that the Court lacked “energy, weight, and dignity.” But because there was precious little time left, Adams nominated Marshall, then aged 45, who just happened to be his Secretary of State at the time. Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31. While Marshall officially took office on February 4, he continued to also serve as Secretary of State until Adams’ term expired on March 4. President John Adam, who died a few hours after Thomas Jefferson on the 50th anniversary of the signing of the Declaration of Independence, July 4, 1826, had this to say about his appointment of Marshall: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

John Marshall’s legal training comprised three months of attending the law lectures of George Wythe at the College of William and Mary. In fact, these three months were his only formal education since grammar school. Nevertheless, he was admitted to the practice of law immediately after those lectures, in 1780.

Marshall’s legacy is indeed an enlargement of the powers of the Supreme Court and the federal judiciary in general.  (It should be noted that at the time, the Supreme Court met for only three months out of the year and during the other months would “ride circuit,” which meant they would serve on the lower federal courts, the federal courts of appeal or district courts, filling in wherever they could).

Ironically, it was Chief Justice John Marshall, the man who wrote: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” who, in fact, forgot that it was a constitution he was expounding, intended to endure for ages to come.

So Jefferson was right about the potential of the Supreme Court after all. In a letter to his friend Edward Livingston in 1825, he lamented over what the judiciary had already become: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

In 1821, Jefferson wrote to his friend Charles Hammond: “It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed…..  When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

In 1820, he wrote to William Jarvis: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”

Also in 1820, he wrote to Thomas Ritchie: “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.’”

James Madison also warned of the dangers of a powerful federal judiciary.

In a letter James Madison wrote on October 15, 1788 to a former roommate of his, John Brown (of Kentucky), he wrote: “Refusing or not refusing to execute a law to stamp it with its final character . . . makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.” In his famous Report of 1800 (aka, “Committee Report on the Alien & Sedition Acts”), Madison warned: “On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

A limited and reserved judiciary was anticipated at the time the union was established, in 1788.

To convince the States of the limited nature of the federal government created by the new Constitution of 1787, and hence encourage them to ratify it in their conventions, Alexander Hamilton outlined exactly the position that the federal judiciary would occupy in the new government scheme in his Federalist Papers essays. Its role would be simply to offer an “opinion” on constitutional questions to the other branches and to the States. In his essay No. 78 (dated June 14, 1788), in which he articulated the role of the federal judiciary under the US Constitution, Alexander Hamilton articulated: “The Judiciary . . . 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.”  Further in that essay, he wrote: “And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”  In his essay No. 81 (dated June 25, 1788), also addressing the federal judiciary, Hamilton wrote: “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”

The States relied on the commentary and explanations in the Federalist Papers in ratifying the Constitution, and also on the promise that a Bill of Rights would be added to further limit the power of the common government. They would not have agreed to leave all decisions as to the extend and scope of federal power completely and exclusively to the federal government itself.

The Supreme Court, and federal courts in general, are the most threatening branch of the federal government because they have the power to alter and re-interpret the Constitution, in effect, to “re-write” it without the legal requirement of going thru the Article V amendment process. The other branches merely ignore the Constitution or are ignorant to the authority it grants and the limitations it requires. They are also the most threatening branch to our democratic process because they can circumvent the democratic process on social issues without any repercussions at the ballot box.

In a speech he delivered to the class at Catholic University, Columbus School of Law, he said: “Robert F. Kennedy used to say, ‘Some men see things as they are and ask why. Others dream things that never were and ask why not?’  That outlook has become a far too common and destructive approach to interpreting the law.”

Before he passed, Justice Antonin Scalia was quoted from an interview he did with Bloomberg magazine: “It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.”

On February 24, 2002, Senator Dianne Feinstein (D-CA), a member of the Senate Judiciary Committee member, let it slip on NBC’s “Meet the Press” that she would oppose appeals court nominee Charles Pickering because he had ‘right-wing views, both politically and personally.’

At least she admitted what we all knew – that judges to the federal courts, including the Supreme Court, are selected based on their political views.

In his article “The Judiciary: The Strongest and Most Dangerous Branch?”, Tom Jipping wrote: “Ask yourself this question: why are political or personal views a qualification to be a judge rather than, say, politician? What is it that Senator Feinstein thinks judges do that makes their political and personal views important?”

This is, at the core, why we have such a problem with the federal courts. This is why each president ambitiously appoints judges to the federal courts. This is what the debate over the power and appointment of judges is all about. Political and personal views should NEVER determine fitness to serve in the judiciary.

Jipping continued: “A judicial nominee’s political or personal views are relevant for only one reason; because one thinks those views determine judicial rulings. That is, judges are free to make decisions based not on the law, but on their own personal views. Stating that view is enough to expose its danger to our liberty. Government decisions based on political or personal views are political decisions, made by those we elect to make our laws and over whom we have electoral control. Judicial decisions must be based on law, not on political or personal views. Our liberty depends on them separating law from politics.  You are no doubt familiar with the phrase “a government of laws, and not of men.” But how many know where it comes from? It appears at the end of Article 487 of the Massachusetts Constitution of 1780. Article 487 says that “the judicial [branch] shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.”

If judges base their decisions on their political or personal views, they are not interpreting. They are making law or transforming the Constitution or the law they are reviewing. They are bending or conforming the Constitution or law to their political or personal views. This is what is meant by a government of men and not a government of laws.  We have no security for our liberty with a government of men.

Justice Scalia confirmed the sake in his remarks before the Philadelphia Bar Association on April 29, 2004: “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

Our current Supreme Court has a split nature. Four of the justices base their decisions on political and/or personal views; these are the liberal justices. The Constitution has no firm meaning to them. Another four justices strictly construe the Constitution, just as they would a contract, believing the document means what it says and continues to mean the same thing until properly amended; these are the conservative justices. So, apparently we have a hybrid government – partly a government of men and partly a government of laws. It is the ninth justice, the swing-voter, who has the last word on the matter.

Law Professor Robert E. Riggs wrote, in his 1993 Hofstra Law Review article “When Every Vote Counts: 5-4 Decisions in the Supreme Court, 1900-1990”:

“The word of the Supreme Court is the law of the land. From the decision of its nine appointed Justices there is no appeal and, for most disappointed suitors, no legal redress at all. The losers in a case of wide public interest might hope someday to seek a legislative remedy, but the process of legislative redress is slow, cumbersome, and uncertain. When the issue turns on the meaning and application of the US Constitution, the decision is truly final, subject to modification only by constitutional amendment or by a subsequent Supreme Court. The exercise of such awesome lawmaking power by so few nonelected public servants is a paradox in a democratic society, and the paradox is heightened when the issue is close. In a nine-member court, five votes are sufficient to determine the outcome, even if four strongly dissent. In the early decades of this century, when 5-4 decisions were few and unanimity was the rule, critics of the Court often suggested that decisions by a single vote – especially when voiding a statute – were somehow illegitimate. Today, Supreme Court decisions still give rise to criticism and protest and, in extreme cases, public agitation to overturn them. Criticisms of such decisions are primarily substantive, however, and the procedure that gives the same legal weight to a 5-4 as to a 9-0 decision is seldom challenged.

The 5-4 decisions of the United States Supreme Court highlight the essentially political nature of the body. The ideal of nine jurists collectively resolving disputes according to the dictates of the law and the Constitution is superseded by an image of nine Justices voting individual preferences in situations where substantive rules seem to provide little guidance. Both the ideal and the image are caricatures-the unanimous decisions tending toward one extreme and the 5-4 decisions toward the other-but each reflects elements of the complex underlying reality of Supreme Court decision-making. Until well into this century, unanimity was the dominant image. Published dissent was limited to a small fraction of decided cases, with 5-4 decisions still less frequent. This frequency does not necessarily portray a Court governed more by principle than by personal preference.”

The inability for 9 justices to be able to see eye-to-eye on the meaning and intent of the Constitution, including all its provisions limitations, should be exceedingly troublesome to every American, especially when there is ample commentary, explanations, warnings, discussions, debates on the merits, and direct instructions by the drafter himself (James Madison), the delegates who – through robust debate and discussion – worked together to put it in its final form, the men who wrote the Federalist Papers (the greatest authority as to the meaning and intent of the Constitution; written by Madison, Alexander Hamilton, and John Jay), the Founding Fathers who helped guide its ratification in the State conventions, and the Congressional record.  No Supreme Court opinion should ever include any interpretation of the Constitution or its provisions/limitations that differs in any way, shape, or form from any of the authorities just mentioned. Yet we see it all the time, especially after the turn of the century (post 1900).  5-4 opinions, which account for about 30% or more of the total opinions of the more recent Supreme Court, should call into question the ability of the Court to be able to effectively, objectively, and responsibly maintain the integrity of our great document. And if the highest court of the land cannot do so, then it should cease to be the final arbiter on constitutional matters. Otherwise, our Constitution is in grave danger and our constitutional republic is as well.  There is no confidence in a court decision that is 5-4.  Because there is no consensus by court members in such a split opinion, there is no comfort among the people that the Constitution was faithfully, diligently, ethically, and dutifully interpreted. They know that the Court is a highly politicized tribunal. It’s nature has become political. They know that one half of the Court truly understands what the Constitution says and requires and the other side intentionally rejects that position. The approval or disapproval of the opinion rests with the vote of the swing voter. The 5-4 decisions of the United States Supreme Court highlight the essentially political nature of the body.

There are many federal court opinions which represent an abuse of judicial power – a political opinion rather than a constitutional one. Some are clear abuses and some are subtle. I have mentioned a few of the more blatant ones above.

To the trained constitutionalist – again, this being the goal of my writings – each and every violation is – and would be – apparent. One simply needs to be well-educated or well-versed on the Constitution and its history.

 

THE DISSENTING OPINION IN THE OBERGEFELL OPINION

SUPREME COURT - conservative members (2017) - minus Kennedy

In some cases, the dissenting justices accuse the majority of reaching an unconstitutional opinion, and often explain why. One such case is the Obergefell case. The Obergefell opinion is clearly an unconstitutional decision – one of obvious over-reach, motivated by a desire to advance a social agenda. The opinion was a 5-4 decision in which the liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) were joined by the swing voter Anthony Kennedy, to outnumber the opinion of the conservative justices (Antonin Scalia, Clarence Thomas, Chief Justice John Roberts, and Samuel Alito). But the conservative justices refused to remain quiet regarding the majority opinion. Each wrote a separate dissenting opinion accusing the majority of ignoring their role as a member of the federal bench, of twisting the meaning of the Constitution, of enlarging the meaning of the term “Due Process” (blatantly ignoring the Supreme Court’s own definition and precedent), of ignoring the Tenth Amendment, of committing judicial activism, etc etc.

I want to emphasis the point I am trying to make in this article – which is that the federal courts are guilty, perhaps even more than the other branches, of unconstitutional abuses – by focusing on the Obergefell case and examining the dissenting opinions. I have highlighted key excerpts from the dissenting opinions by Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito, which are all very strong, but have included the entire dissenting opinion by Chief Justice John Roberts.

A.  JUSTICE SCALIA

SCALIA (#7)

The late Justice Antonin Scalia wrote:

I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“The Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws” — it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans[19]), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “in any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of[a right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

*  *  *

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[26] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

 

B.  JUSTICE THOMAS

JUSTICE THOMAS

Justice Clarence Thomas wrote:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742 –812 (2010) (Thomas, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here – “roam at large in the constitutional field guided only by their personal views as to what fundamental rights are protected by that document”. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)).

By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.

Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses….

The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty……

Justice Thomas then went on to explain the history behind the Due Process Clause, including its roots in the Magna Carta, in Blackstone’s Commentaries, and in the government philosophy of John Locke.

In yet another part of his dissent, Justice Thomas wrote: “Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect,” and then went on to explain the history of our religious liberty.

Finally, he concluded:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

 

C.  JUSTICE ALITO

JUSTICE ALITO

Justice Samuel Alito wrote:

Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701 –721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor (2013) (Alito, J., dissenting). Indeed: “In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.

“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id.

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.

While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.

If the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

 

D.  CHIEF JUSTICE ROBERTS

 JUSTICE ROBERTS

JAMES OBERGEFELL, et al., PETITIONERS

14–556v.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.;

Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, dissenting.

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 (Alexander Hamilton)

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” (majority opinion, at 19). I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

I

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway, 2013.

A.

As the majority acknowledges, marriage “has existed for millennia and across civilizations.” (majority opinion, at 3). For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor, 2013.

This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).

This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, (quoting In re Burrus, 136 U. S. 586 –594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.

Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.

This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885) , which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888) . We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967) ; see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) . More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978) .

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. Loving, 388 U. S., at 6–7.

The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” (majority opinion, at 6–7). They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.

B

Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972) .

In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.

Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.

In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.

Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expanding the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.

II

Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. (majority opinion, at 12). In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45 . Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

A

Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. (See majority opinion, at 3, 14). They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”

This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993) . The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).

Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s 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 to mean.” Id., at 621.

Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58.

The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.” Id., at 75–76.

In the decades after Lochner, the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).

Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963) ; see Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) .

Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992) . Our precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted).

Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009) ; Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57 –101 (2000) (Kennedy, J., dissenting) (consulting “ ‘our Nation’s history, legal traditions, and practices’ ” and concluding that “we owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).

Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decision-making in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on an abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identifying fundamental rights, (majority opinion, at 10–11), does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).

B

The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.

1

The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. (majority opinion, at 3, 4, 6, 28). Nobody disputes those points.

Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.

When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987) ; Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); (see Justice Thomas’ dissent, at 11–12). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” (majority opinion, at 11).

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, (Alito, J., dissenting) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.

2

The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485–486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438 –454, n. 10 (1972) (internal quotation marks omitted); citing Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003) , which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touch upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id., at 562, 567.

Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. (majority opinion, at 28). At the same time, the laws in no way interfere with the “right to be let alone.”

The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961) . As the majority recounts, that opinion states that “due process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546.

In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989) ; San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 –37 (1973); (See Justice Thomas’ dissent, at 9-13). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

3

Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. (majority opinion, at 18) (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45 . The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” (majority opinion, at 1–2). The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” (majority opinion, at 12). This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).

To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. (majority opinion, at 10, 11). The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).

The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” (majority opinion, at 25). On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” (majority opinion, at 13), why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” (majority opinion, at 15), why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” (majority opinion, at 22), serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

4

Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” (majority opinion, at 27). This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57.

Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” (majority opinion, at 11). As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).

III

In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. (majority opinion, at 20). Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” (majority opinion, at 19).

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. (majority opinion, at 22). Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009) . In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

IV

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (Kennedy, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” (majority opinion, at 7-9).

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. (majority opinion, at 9, 10, 23). What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” (majority opinion, at 19). The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” (majority opinion, at 8). In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 2014.

The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” (Justice Scalia’s dissent, at 2-3).

But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. (First Amendment)

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. (majority opinion, at 27). The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. (majority opinion, at 19). That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demean or stigmatize” same-sex couples. (majority opinion, at 19). The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “dignitary wounds” upon their gay and lesbian neighbors. (majority opinion, at 17, 19, 22, 25). These apparent assaults on the character of fair-minded people will have an effect, in society and in court. (See Justice Alito’s dissent, at 6-7). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. (majority opinion, at 19).

In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.

*  *  *

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I respectfully dissent.

 

CONCLUSION

OBERGEFELL v. HODGES - Supreme Court pic with rainbow-colored wedding rings

The Constitution is a set of core principles, delegated authority, and limits according to which We the People, established in state conventions, decided to have our country governed. Sure, these principles gradually change over time, as well the need for government to adapt to changing times. For example, in 1815, the federal government was expected to stay in DC, run its strictly enumerated programs (post office, patent office, etc), conduct foreign policy, and otherwise stay out of everyone’s hair. Americans enjoyed the fundamental right “to be left alone” by the federal government [“The makers of the Constitution: conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 1928]. Today we accept the notion that the government should take care of us and expect it to do more and more for our well-being and quality of life.  Our Founding Fathers understood that our understanding of government might change over time. They also understood that the Constitution shouldn’t be changed lightly and without sufficient time and opportunity to consider and reflect on the proposed changes. That is why they included Article V, which prescribes the precise processes to alter and amend the Constitution.

There are essentially two ways of dealing with gradual changes: (1) The legal path – thru the amendment process, which is a long deliberate process, and (2) The illegal path – the way that’s been used at least since FDR – which is to give judges great latitude and freedom to reinterpret ambiguous (and crystal clear ones!) parts of the Constitution; this is the quick process.  For progressives, the latter is the preferred process and for conservatives, the first process is what is preferred. For conservatives, the path to take when confronting a shift in prevailing attitudes in our country, such as social change in recognizing gay marriage, is to first require judges to interpret the Constitution literally (“strict constructionism”), and if the change is not addressed clearly in the Constitution, to introduce or address that change by passing a constitutional amendment. That’s the option preferred by conservatives, because conservatives are, by definition, opposed to change, and, in this approach, the Constitution will always be a product responsive to the wishes of the people as a whole and not a product created by judges.

While this may sound insufficient or insurmountable to certain minority groups because of the potential time it may take to gain a majority opinion in their favor, it serves the democratic process and makes sure that change is truly made wisely. The Constitution always protects the fundamental and essential rights of all persons, including all minority groups. It’s the “new rights” that we are talking about here.

I’m not saying that gay marriage should be banned. It may very well be the will of the people in their States and even in the United States as a whole, in support of a constitutional amendment removing the traditional definition of marriage. That is not the question for this article. What I am saying is that the Supreme Court should not have made that decision. It was beyond their authority to do so (just as it was beyond their authority to determine that the unborn have no constitutional rights and therefore can be killed).

Years before his passing, Justice Scalia did an interview in which he explained that “originalism” and “strict construction” as an approach to interpreting the Constitution is a dying position. He said that our youth is being taught, expressly, that the Constitution is “a living, breathing document.” He said that day after day when school systems bring their students to the Supreme Court building, he hears the teacher ask the kids: “What is the Constitution?” To which they would answer, in unison, “a living, breathing document.”  Our children, our youth, are being indoctrinated that the Constitution allows the country to be run not necessarily by an established rule of law but by the rule, or whim, of man.

The progressive and political nature of the Supreme Court poses a grave danger to the longevity and the integrity of the foundations that were agreed upon in the years when the States, and the people acting in convention in those States, debated, deliberated, and labored over the decision to delegate some of its power to a common government establish a federal union. Their deliberations and decisions were directly related to the meaning and intent of the Constitution; its meaning and operation were paramount to their decision. The Supreme Court, through many years of opinions, has reassigned new meaning and powers to the government, not by recognizing what it says but by ignoring what it says.

Indeed, little by little, the foundations of our Constitution have been eroded by the federal judiciary and over the course of its history (ever since the Marshall Court), its men in black robes have enlarged the powers of the federal government, have stripped reserved powers of the States, have secured for the government the unlimited right to the property and finances of the American people, have put the American people in a state of limbo as to the security of their fundamental rights under the First Amendment (religious rights, in particular) and Second Amendment, and have used the bench as an alternate forum to make laws. The result has been an erosion of the American system of checks and balances, especially in the ability of the States to check the federal government. A government without effective checks is a danger to the freedom of the people.

“At the establishment of our Constitutions,” Thomas Jefferson wrote in a letter to Adamantios Coray in 1823, “the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

We inherently know when the executive and legislative branches overstep their constitutional (and in pursuance to it, statutory) authority. Anyone who has read the Constitution and takes the time to read our federal laws can tell when their limits have been exceeded. And the people and the States can decide how to respond to such unconstitutional action. But how do you challenge the judicial branch when they alone determine what the Constitution means (or now means) and the laws mean.

No doubt many will never be convinced that decisions of the Supreme Court should be opposed or ignored. No doubt that many will never believe that its opinions can be characterized as “unconstitutional.” If you are one of those individuals, consider how the Supreme Court, starting with the Marbury v. Madison decision has affected the delicate balance of government envisioned by our Founders and drafters and established in the Constitution:  The Constitution intended to, and did, establish three departments, coordinate and independent, capable of checking and balancing one another, with the officials of the most important branches (the legislative and the executive) being elected in a democratic process. And then the intended weakest branch, with its members appointed and thus outside the reach of the electorate, reserved to itself the power over the other branches and over the will of the people.

Yes, the Supreme Court and the other courts of the federal judiciary often abuse their power, put politics and agenda over a duty to impartially interpret the Constitution and its laws, make law from the bench, direct social change from the bench, and usurp powers reserved to the States or the People whenever it feels like in order that the federal government can exert the powers it wants and for the reasons it wants. Yes, its opinions are often unconstitutional. I hope this article has convinced you of that. I have used the very words, the explanations, of our esteemed Supreme Court justices to make my point as clear and as strong as possible.

I also hope that you find it unacceptable that it happens and that because “no one watches the watchers” we have accepted the notion that whatever the Court decides must become the law of the land.

I hope your next step will be to believe that such unconstitutional decisions, like unconstitutional laws and executive orders, must be called out for what they are and be prevented from being enforced. The enforcement of unconstitutional laws and policies, AND unconstitutional judicial opinions, is the very definition of TYRANNY.

Ultimately, my hope is that you will begin to research and read up on the remedies to prevent the enforcement of unconstitutional judicial opinions, share the knowledge with friends, and get involved with your local and state government (thru its officials) to educate them as well.

 

References:

Obergefell v. Hodges, 2015 (dissenting opinion by Chief Justice John Roberts) –    https://supreme.justia.com/cases/federal/us/576/14-556/dissent4.html

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Clarence Thomas) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent6.html   [Read Justice Thomas’ explanation of the history and meaning of both the Due Process Clause (of the 5th amendment) and the history of Religious Liberty]

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Antonin Scalia) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent5.html

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Samuel Alito) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent7.html

Robert E. Riggs, “When Every Vote Counts: 5-4 Decisions in the Supreme Court, 1900-1990,” Hofstra Law Review, Volume 21,|Issue 3, Article 3 (1993).  Referenced at:  https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1867&context=hlr

Robert E. Riggs (1993) “When Every Vote Counts: 5-4 Decisions in the United States Supreme Court, 1900-90,” Hofstra Law Review: Vol. 21: Iss. 3, Article 3.  Referenced at:  http://scholarlycommons.law.hofstra.edu/hlr/vol21/iss3/3

Tom Jippimg, “The Judiciary: The Strongest and Most Dangerous Branch?”, Enter Stage Right, March 4, 2002.  Referenced at:  http://www.enterstageright.com/archive/articles/0302/0302judiciary.htm   [Tom Jipping is the director of the Free Congress Foundation’s Center for Law and Democracy]

JUDICIAL ACTIVISM: Obstruction of Construction

JEFFERSON - versus Hamilton

by  Diane Rufino, September 21, 2017

In Honor of the 230th Anniversary of the US Constitution, and also to help promote Brion McClanahan’s latest book, HOW ALEXANDER HAMILTON SCREWED UP AMERICA, I wanted to post this important History Lesson —

The history surrounding the first Bank Bill (to charter a national bank), proposed to President Washington by his Secretary of the Treasury, Alexander Hamilton shows us exactly why the Federal Judiciary has become the greatest usurper of powers belonging to the States and to the People. It is an important lesson on constitutional interpretation.

Why is it important that we pay close attention to constitutional interpretation?  Because when the courts don’t bother to consult the proper original documents and commentary as authority on the meaning and intent of the provisions of the Constitution, and/or when they make the decision to disregard that history and that critical information (any student of contract laws knows the strict laws of construction that guide a contract’s interpretation), then any opinion in contradiction to that history and such commentary necessarily means that the judiciary has assumed power for the federal government that it was not intended to have. And where do those additional powers come from?  From the original depositories of government power, the People and then the States.

HISTORY –

In 1788, the US Constitution was adopted by the requisite number of states and hence, the government it created would go into effect. Later that year, elections were held, George Washington was elected our first president (and men like James Madison elected to the first US Congress), and the following year, 1789, the Union’s new government was assembled and inaugurated. One of the first decisions of the first Congress was to fund the debts that the individual states incurred in fighting the Revolutionary War. The question, of course, was how would it do that. Washington’s Treasury Secretary, Alexander Hamilton, long holding true to a belief that a large, powerful national government of centralized functions is the proper form of government for the new Union (although he conceded to the federal form that the majority of delegates at the Philadelphia Convention voted for), urged that Congress should charter a National Bank, after the British model. He took his suggestion to Washington and agreeing with Hamilton, a Bank Bill was introduced in Congress. But powerful state and government leaders, including Thomas Jefferson, Washington’s Secretary of State, James Madison, Congressman from Virginia, and several state leaders, particularly from Virginia, objected, characterizing such a bank as being “repugnant to the Constitution,” and assuming powers not expressly delegated to Congress in Article I. Washington then asked both Hamilton and Jefferson to provide him with memoranda outlining their arguments regarding the creation of such a National Bank.

(The Following section, as noted, is taken, in its entirety, from Kevin Gutzman’s book THOMAS JEFFERSON – REVOLUTIONARY (St. Martin’s Press, NY, 2017):

Jefferson began by describing the Bank Bill’s provisions, saying that he understood the underlying principle of the Constitution to be that “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” (here is quoted the Tenth Amendment, which at the time lay before the state legislatures for their ratification).  Power to pass the bill had not been delegated to the United States, he insisted. It did not fall under the power to tax for the purpose of paying debts because the bill neither paid debts nor taxed. It did not fall under the power to borrow money because the bill neither borrowed nor ensured that there would be borrowing. It did not fall under the Commerce Clause for it did not regulate commerce. Jefferson understood ‘regulating commerce’ to mean “prescribing regulations for buying and selling,” which the Bank Bill did not do. If it did that, he continued, the bill “would be void” due to its equal effects on internal and external commerce of the states. “For the power given to Congress by the Constitution,” Jefferson continues, “does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State or with foreign nations or with the Indian tribes.”  No other enumerated power (Article I, Section 8) gave Congress ground for passing this bill either, he concluded.

Besides the enumerated powers, the General Welfare Clause and the Necessary and Proper Clause had also been invoked by the bill’s proponents. Jefferson disposed of those clauses deftly as well. First, the General Welfare Clause said that Congress had power “to lay taxes for the purpose of providing for the General Welfare (emphasis Jefferson’s). The reference to the general welfare, he insisted, was bound to the power to tax. It did not create a separate power “to do any act they please which might be for the good of the Union, which Jefferson thought the preceding and following enumerations of powers rendered entirely obvious. To read the General Welfare Clause any other way would make the enumerations “completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress to do whatever would be good for the United States, and as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they please.”

Jefferson, the skilled lawyer that he was, noted that one of the most basic rules of construction (contract law) cut strongly in favor of his argument. That rule states that “where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.” Besides that, the Philadelphia Convention had considered and expressly rejected a proposal to empower Congress to create corporations. The rejection, he noted, was based partly on the fact that with such a power, Congress would be able to create a bank.

As for the Necessary and Proper Clause, Jefferson noted that it said that the Congress could “make all laws necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently, not authorized by this phrase (emphasis Jefferson’s).”  The Bank Bill’s proponents had argued for the great convenience of having a bank, which might aid in exercising powers enumerated in the Constitution, but Jefferson would have none of the idea that “necessary” could be twisted to mean “convenient.”

Jefferson concluded his memorandum with a brief statement on the president’s veto power, which he called “the shield provided by the Constitution to protect against the invasions of the legislature: (1) The right of the Executive. (2) Of the Judiciary. (3) Of the States and State legislatures.”  To his mind, the Bank Bill presented “the case of a right remaining exclusively with the States” – that of chartering a corporation. Congress’ attempt to take this right to itself violated the Constitution and Washington should veto the bill.

Washington did not agree. Instead, perhaps on the basis of Hamilton’s argument that Congress could adopt whatever kind of legislation it judged helpful in supervising the national economy, he signed the Bank Bill.   [Gutzman, Thomas Jefferson – Revolutionary, pp. 40-42]

THE IMPACT –

When a subsequent Bank Bill was challenged by the state of Maryland, in McCulloch v. Maryland (1819), Chief Justice John Marshall would revisit the arguments submitted to President Washington and as expected, he would side with Hamilton. Hamilton’s position, after all, would give the federal government a broad pen with which to write legislation, in contrast to the limits imposed on it by the very wording of the Constitution and the listing of the only powers that the States had delegated to the federal government. McCulloch was another in a series of cases written by Marshall usurping powers from other depositories and concentrating them in the federal government. The Supreme Court, a branch of the very federal government that it presides over, has consistently used its powers not to interpret the Constitution and offer opinions to other branches, but rather to secure a monopoly over the scope and intent of the government’s powers.

Marshall’s opinion in McCulloch gave Congress power that the States intentionally tried to prevent; he read a meaning and intent in the Constitution, in Article I, that was expressly rejected by the States when they debated and then signed the document on September 17, 1787. Marshall’s reading of Article I, in particular the “Necessary and Proper” Clause, gave Congress power “to which no practical limit can be assigned,” as James Madison put it.

With McCulloch, the Supreme Court committed a grave injustice to the system established by our founding fathers and our founding states. Marshall’s opinion directly contradicted an essential element of the states’ understating of the Constitution when they ratified it, and that understanding was that the Constitution created a federal government of express and limited powers so that the residuary of government power would remain reserved to the states and hence the sovereignty they long cherished would not be overly diminished by organizing into a Union.

And the history of judicial activism continued and still does ….

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

Keep the Federal Government in Check with NULLIFICATION – Not Liberty Amendments!

Nullification - Mark Levin v. Thomas Jefferson

by Diane Rufino, October 10, 2013

Mark Levin, who wrote an excellent book “The Liberty Amendments” to urge states to call for an Article V Convention to propose constitutional amendments to restore the federal government back to some sort of constitutional limits, calls Nullifiers “kooks.”  His solution is to keep the federal government in check by a series of constitutional amendments.

My question to Mr. Levin is this:  Why do we need to AMEND the Constitution? The Constitution has never been legally altered from its original meaning. What we need to do is FINALLY ENFORCE the Constitution that was ratified by the States in 1787-1788. The government represents the CONSENT of the GOVERNED and has never been delegated any authority to autonomously expand or enlarge its powers. The Declaration of Independence, which provides the framework for our common intent and understanding of government, assures that government is a creature of the people to SERVE the people. Only the people have the power to “alter or abolish” government. The scope of government is at the will of the people. Government has no power to alter itself or to abolish any rights of the people. What does this mean?  It means that every time the government oversteps its limited authority under the Constitution, it takes sovereign power away from the People and the States. Our Founders warned about this when they included the Ninth and Tenth Amendments and that’s why those amendments are included… They remind us that any step beyond the authority in the Constitution is an infringement on the natural rights of the Individual or the sovereign rights of the States.

For the past 200 years, the government has steadily stepped beyond its constitutional authority and stepped on the rights of others. It’s time those who have had their rights trampled upon step up and say NO MORE.  Nullification is the rightful remedy, based precisely on the ideals laid out in the Declaration of Independence.  As long as it is understood that government derives from the people, is accountable to them, serves them, and is at all times subject to their right to alter or abolish it, then it should not be expected that People have to go through great pains and efforts to ask it to abide by its charter.  The Constitution is a limit on the government to hold it accountable to the People and NOT a limit on the People to demand such accountability.

The Rightful Remedy is Nullification and NOT constitutional amendments. Don’t get me wrong. When the people want to knowingly and intentionally alter their Constitution and change their form of government, then amendments are the proper remedy.  But when government oversteps the bounds of authority that the PEOPLE have set on it in the Constitution and tramples on the rights of other parties, the proper remedy to stop that usurpation and to reign in the power and scope of government is not through amendments but through Nullification. Nullification recognizes the founding American government principle that any power not expressly delegated to the government by the People (for their benefit) cannot be assumed by it. Therefore, when government attempts to overstep its (constitutional) boundaries, those laws are without legal authority, are null and void, and are unenforceable on the People.  Requiring the People to go through a series of seemingly insurmountable hoops (ie, constitutional amendments) to try to control their government seems is akin to having them beg the federal government to “Please, please, please try to respect the Constitution.”

It seems the great majority of people, including Mr. Levin, have forgotten what a Constitution is, at its core.  John Jay, who wrote five of the essays compiled in The Federalist Papers and who went on to be appointed Chief Justice of the US Supreme Court by President George Washington, wrote: “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land…  It is stable and permanent, not to be worked upon by the temper of the times.. It remains firm and immovable, as a mountain amidst the raging of the waves.”  Thomas Paine, in his Rights of Man, wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  And in 1782, in his Notes on Virginia, Thomas Jefferson explained: “The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”

I believe Mark Levin is dead wrong in attacking the Nullification movement.  I respect him immensely, but if he truly believes that we must amend the Constitution in order to restore the Constitution – when the Constitution was never legally amended to get us in the predicament that we are in – then he has a flawed understanding of our founding principles and the American founding philosophy of government.

He presupposes that only the People and the States need to abide by Constitutional limits.  It doesn’t matter to him that the federal government, the one party that IS supposed to be limited by the Constitution, has repeatedly, defiantly, and grossly misinterpreted and abused its terms.  Mr. Levin is so hung up on “what the People and the States can constitutionally do” to bring the government back in line (and by that, I mean that he wants the remedy to be expressly articulated in the Constitution) that he forgets that even as he is out on his book tour to promote “The Liberty Amendments,” the federal government continues to willfully ignore its constitutional limitations and obligations. The Rightful Remedy should be the one that most effectively and immediately puts the government back in check and restores the proper balance of power between the government, People, and the States. The amendment process will take many years and will most likely fall through. And even if an Article V Convention of the States is able to move forward, the amendments produced will most likely be more symbolic than effectual.  A government that is supposed to serve the People (“that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”) should be accessible by the People and a Constitution that is supposed to protect the People from government should NOT effectively shut the People out from “altering” their government so that it isn’t “becoming destructive of its ends.” Nullification, on the other hand, checks the government at every instance.  It puts sovereign power in the hands of those who were the intended depositories – the People.

Nullification is the magic bullet.  As government hemorrhages and our nation dies of toxic ideological poisoning, Nullification is the treatment that patriots can use to get our system healthy again.

Opponents of Nullification want to take this remedy away.  They want to take the one true remedy that is based on the principles our nation was founded upon and discredit it by associating it with themes that the average uninformed American has been brainwashed on.  First, they try to dismiss it by claiming that the government trumps any action of the State on account of the Supremacy Clause.  They believe that since the government has the exclusive right and power to define the extent of its powers and to twist and bend the Constitution to serve its purposes, the Supremacy Clause is the enforcement “badge” that allows it to push any and all laws on the States. By extension, they believe that the Supremacy Clause should be a restraining order on the States so that they don’t get the urge to second-guess the actions and intentions of the federal government.

Second, they discredit Nullification by claiming that the Supreme Court has ruled it unconstitutional. They say that the theory of nullification has been rejected repeatedly by the courts (in particular by the Supreme Court in Ableman v. Booth, 1859 and in Cooper v. Aaron, 1958), and it has never been legally upheld.  Furthermore, they claim that under Article III of the Constitution, the federal judiciary has the exclusive and final power to interpret the Constitution (Marbury v. Madison, 1803). Therefore, the exclusive power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the States.  Consequently, the States have no power to challenge any decision the federal government makes with respect to the laws it passes or the decisions it hands down, and they have no power to nullify federal laws.  Opponents of nullification claim this is the constitutional.

They neglect, of course, to mention that it was the federal government itself that delegated that exclusive power to itself.

Contrary to what the opponents claim, the Supremacy Clause does NOT foreclose Nullification, as most opponents of Nullification claim.  The two principles actually work hand-in-hand.  The Supremacy Clause states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” The Supremacy Clause acknowledges that the Constitution provides legal authority to make certain laws and only laws enacted pursuant to that authority shall be considered supreme law. What it doesn’t say is what happens when the government makes laws NOT in pursuance of legitimate constitutional authority.  And that’s where Nullification steps in. Nullification reaffirms the point of the Supremacy Clause. It acknowledges that government has certain powers to legislate but that the power is not plenary. When the government acts pursuant to its constitutional power, its laws are supreme. But when it acts in abuse or violation of those powers, or assumes power not granted, Nullification provides the remedy. It provides that the States can challenge the government when it passes an unconstitutional law by refusing to enforce it upon the People.  A free people should never have to suffer the enforcement of unconstitutional laws on them.

Unfortunately, the government doesn’t want to recognize the inherent limitation in the Supremacy Clause – that only those laws made “in pursuance” to the Constitution are supreme.  It wants to continue along the self-serving path that allows it to make laws for whatever purpose it wants and to interpret the Constitution to suit it best and to claim it all under the Supremacy Clause.  People want Liberty.  Governments want concentrated power.  These are competing goals.  Our Founders understood that.  And for that very reason, the States were designated as a co-equal Sovereign. The States would forever be an antagonistic force (much like the prosecutor and defense attorney are in a criminal case) that keeps the federal government confined to its exclusive and particular sphere of authority and out of their sphere of government.  “Reserved” powers meant exactly that.  Those powers not expressly delegated to the federal government are reserved by the People and the States.

In Ableman v. Booth, the Supreme Court held that the state of Wisconsin didn’t have the right to nullify the Fugitive Slave law because of the right of the Court to exclusively determine what the Constitution says and means (Marbury v. Madison, 1803).

It should not be forgotten, however, that Ableman decision was written by Justice Roger Taney who also authored the absolute most heinous Supreme Court decision in US history – the Dred Scott decision. That alone should demonstrate how fallible the federal courts are and how tainted, skewed, politically-motivated, academically-limited, and intellectually-dishonest Supreme Court justices are.

In Cooper v. Aaron, Chief Justice Earl Warren wrote the majority opinion.  That opinion held: “The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously.”

Chief Justice Warren continued: “It is necessary only to recall some basic constitutional propositions which are settled doctrine.  Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison,  that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.  It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3 “to support this Constitution…..  If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

Justice Frankfurter, concurring in the opinion, wrote separately: “The States must yield to an authority that is paramount to the State.”

Of course, Chief Justice Earl Warren also wrote the opinion in Brown v. Board of Education, the case upon which the Cooper case was based.  Is it any wonder that he would try to deny states the opportunity to challenge the merits of that decision?

The Supreme Court likes to cite its early decision in Marbury v Madison (1803).  Opponents of Nullification like to cite Marbury v. Madison. They say that this case definitively establishes the principle that the Supreme Court has the exclusive power to interpret and define the Constitution.  And it’s no wonder why this case is a favorite of the Court, of government in general, and of those who favor our current bloated, energetic centralized government.  Since this decision was an enlargement of government powers by giving the federal judiciary plenary power to interpret the Constitution and proclaim what the law of the land is (without being subject to any check or balance under the Constitution), it put the government in a further position to hold a monopoly on the meaning and scope of its powers.  Nullification doesn’t ask us what the Supreme Court says on a particular matter.  Nullification applies regardless of what the Court has said because it, like every other branch, is capable of acting outside of Constitutional authority.  Nullification is an implied principle.  It is the implied (enforcement) power behind the Tenth Amendment just as the federal government has the implied power to enforce its laws and policies under the Supremacy Clause. If the States are truly to be co-sovereigns as our system was intended and designed, under the Constitution and especially with the Bill of Rights (Ninth and Tenth Amendments), then the States must have an equal opportunity to assert their rights under the Tenth Amendment, as well as the Peoples’ rights under the Ninth Amendment. To say that the government alone can assert its sovereignty (under the Supremacy Clause) would be to absolutely deny the concept of Dual Sovereignty and to severely jeopardize the precious balance of sovereign (government) power that uniquely defines our American system of government and which most strongly protects our individual liberty.

As we all know, We the People are vested, under Natural Law and God’s Law, with fundamental rights. The Declaration of Independence acknowledges this and further states that People, in order to organize into productive societies and in order not to sacrifice any of their rights, establish governments (by the “consent of the governed,” by a temporary delegation of their right to exercise and defend their rights, and for the primary purpose of protecting and securing individual rights).  The People, because they are sovereign and have the Natural right to determine their form of government and also because they have the right to take their sovereign power back from government, have the right to “alter or abolish” their government when it becomes destructive of its ends.  As we know, the Declaration provides the foundation for the Constitution. It establishes the philosophy or ideology of Individual Rights, Sovereignty, and Government. The Constitution then created or established a limited government based on that philosophy/ideology and on those principles.  The States, fearing that the Constitution drafted and adopted at the Convention in 1787 might try to step on the rights and powers of the People and the States, insisted that the Constitution be amended with certain “declaratory and limiting phrases” – which would be our Bill of Rights.  Two of those amendments were the Ninth and Tenth Amendments which guarantee that those powers not expressly delegated from the People/States to the federal government are reserved to the People and States, respectively.  This is precisely the type of government referred to and envisioned in our Declaration…  one that only gives to a government those powers that the People are knowingly, intelligently, and voluntarily willing to give it.  But if the Ninth and Tenth Amendments are to MEAN anything, then there has to be an implied enforcement power.  That power to keep the federal government limited is what federalism is all about. It is all about acknowledging the power of the States to forcibly assert its dominance on those reserve powers. Nullification is an implied power.  Just like the Supremacy Clause has an associated enforcement power which the government is so fond of asserting, the States have Nullification.

It should be noted that Marbury v. Madison was a powerful decision in a few very important aspects.  In particular, the decision emphasized and reinforced two key constitutional themes:

(1)  Justices on the Supreme Court are bound to interpret the Constitution strictly and according to the intention of the Founders and those who ratified it (at the time it was ratified).  Justices are bound by ORIGINAL INTENT and STRICT RULES of CONSTRUCTION (words don’t magically change definition as the times change and the Constitution doesn’t evolve with evolving times. Only through the Amendment process (which is how the People declare their intent to alter their form of government and its terms) can the Constitution be altered or amended to reflect changing times. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.”

(2)  Justices must adhere strictly to their oath, which is to the Constitution (as ratified) and not to any administration or political party.  Anytime a justice veers from his oath and doesn’t interpret the Constitution according to strict construction and original intent he commits TREASON.  “The framers of the Constitution contemplated that the Constitution would serve as a rule for the courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government?  If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.”

On the other hand, Jefferson disagreed with Marshall’s reasoning with respect to judicial review, the doctrine the case is known for establishing.  In Marbury, Chief Justice Marshall declared that it is emphatically the duty of the federal judiciary to say what the law is. “Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.  If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Marshall continued: “An act of the legislature repugnant to the constitution is void.  This theory is essentially attached to a written Constitution.”  In other words, when the Constitution – the nation’s highest law – conflicts with an act of the legislature, that act is invalid.  Jefferson criticized the decision by arguing that “the Constitution has erected no such tribunal” with such power.  He argued that “to consider the judges as the ultimate arbiters of all constitutional questions would be a very dangerous doctrine that which would place us under the despotism of an oligarchy.”

It’s worth noting that the Constitution lacks a clear statement authorizing the federal courts to nullify the acts of co-equal branches, yet the Supreme Court went ahead and assumed that power for itself (under the guise of “judicial review”).  There is also no statement in the Constitution that prohibits States from nullifying acts of the federal government (yet it is strongly implied in the Tenth Amendment and the Supremacy Clause), but the Supreme Court went ahead and denied that power to the States.

As one lawyer and opponent of Nullification writes: “Anyone who believes that Nullification is legitimate either 1) Hasn’t read relevant Supreme Court opinions, or 2) believes that centuries of Constitutional precedent should simply be thrown aside.”  Obviously this lawyer hasn’t read Thomas Jefferson, the author of our Declaration and consultant to James Madison, the author of our Constitution, or James Madison himself.  Both warned about putting too much power in the federal judiciary.

Thomas Jefferson wrote to William C Jarvis in 1820: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”   

Jefferson wrote to Charles Hammond in 1821: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

And Abraham Lincoln, in criticizing the Dred Scott decision, said: “If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, 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.”

I have read what our Founders wrote about Nullification.  I believe it to be as legitimate a doctrine as any other check and balance doctrine on which our government was based.  I believe it to be as foundational a principle as limited government and “government of the People.”  I will never place the opinions of any federal court judge over the very words of those who defined our American notion of ordered liberty and our system of government. I know what the intentions were of our Founders – to honor the spirit of our American Revolution and to secure individual liberty.  I always question the intentions and judgment of federal court judges.

Justice Felix Frankurter, who served on the Supreme Court from 1939-1962, once said this about the high Court’s decisions: “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”  And we should take his advice and disregard the Court’s opinion in Cooper – and in Ableman too!

Attorney General Edwin Meese, III (Attorney General under President Ronald Reagan), a constitutional scholar, was highly critical of the Cooper v. Aaron decision, and in fact delivered these words to Tulane University Law in 1986:

      “A decision by the Supreme Court does not establish a ‘supreme Law of the Land’ that is binding on all persons and parts of government, henceforth and forevermore.  Obviously it does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary.  But there is a necessary distinction between the Constitution and constitutional law.  The two are not synonymous. The Constitution is a document of our most fundamental law.  It begins ‘We the People of the United States, in Order to form a more perfect Union…’ and ends up, some 6,000 words later, with the 26th Amendment. It creates the institutions of our government, it enumerates the powers those institutions may wield, and it cordons off certain areas into which government may not enter. It prohibits the national authority, for example, from passing ex post facto laws while it prohibits the states from violating the obligations of contracts. The Constitution is, in brief, the instrument by which the consent of the governed – the fundamental requirement of any legitimate government – is transformed into a government complete with ‘the powers to act and a structure designed to make it act wisely or responsibly.’ Among its various ‘internal contrivances’ (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, ‘the supreme Law of the Land.’

      Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court’s adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

      The Supreme Court is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution – the executive and legislative no less than the judicial – has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.  For the same reason that the Constitution cannot be reduced to constitutional law, the Constitution cannot simply be reduced to what Congress or the President say it is either. Quite the contrary. The Constitution, the original document of 1787 plus its amendments, is and must be understood to be the standard against which all laws, policies and interpretations must be measured.

     But in their task of interpreting the Constitution, the courts have on occasion been tempted to think that the law of their decisions is on a par with the Constitution. That is, they have reduced the Constitution to constitutional law.

     Some thirty years ago, in the midst of great racial turmoil, our highest Court succumbed to this very temptation. By a flawed reading of our Constitution and Marbury v. Madison, and an even more faulty syllogism of legal reasoning, the Court in a 1958 case called Cooper v. Aaron appeared to arrive at conclusions about its own power that would have shocked men like John Marshall and Joseph Story.  In this case the Court proclaimed that the constitutional decision it had reached that day was nothing less than ‘the supreme law of the land.’ Obviously the decision was binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is ‘what the judges say it is.’ The logic of Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.

     Just as Dred Scott had its partisans a century ago, so does Cooper v. Aaron today. For example, a U.S. Senator criticized a recent nominee of the President’s to the bench for his sponsorship while a state legislator of a bill that responded to a Supreme Court decision with which he disagreed. The decision was Stone v. Graham, a 1980 case in which the Court held unconstitutional a Kentucky statute that required the posting of the Ten Commandments in the schools of that state. The bill co-sponsored by the judicial nominee – which, by the way, passed his state’s Senate by a vote of 39 to 9 – would have permitted the posting of the Ten Commandments in the schools of his state. In this, the nominee was acting on the principle Lincoln well understood – that legislators have an independent duty to consider the constitutionality of proposed legislation. Nonetheless, the nominee was faulted for not appreciating that under Cooper v. Aaron, Supreme Court decisions are the law of the land – just like the Constitution.  He was faulted, in other words, for failing to agree with an idea that would put the Court’s constitutional interpretations in the unique position of meaning the same as the Constitution itself.

     My message today is that such interpretations are not and must not be placed in such a position. To understand the distinction between the Constitution and constitutional law is to grasp, as John Marshall observed in Marbury, ‘that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.’ This was the reason, in Marshall’s view, that a ‘written Constitution is one of the greatest improvements on political institutions.’

     Likewise, James Madison, expressing his mature view of the subject, wrote that as the three branches of government are coordinate and equally bound to support the Constitution, ‘each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’ And, as his lifelong friend and collaborator, Jefferson, once said, the written Constitution is ‘our peculiar security.’

     Once again, we must understand that the Constitution is, and must be understood to be, superior to ordinary constitutional law. This distinction must be respected. To do otherwise, as Lincoln once said, ‘is to submit to government by judiciary.’”

It is amazing to me how far we as a nation, as a collective people, have strayed from the principles of individual liberty. Too many people believe they must check with the federal government to see what their rights are and what their Constitution means. Sadly, Mark Levin is one of those Americans.

Here is my biggest problem with Mr. Levin’s promotion of his “Liberty Amendments” – aside from his outright rejection of Nullification: The government has consistently and unabashedly overstepped its authority in the Constitution when it has suited its purposes. In fact, there has rarely been a time when it confined itself to the articles which were delegated to it by the People and the States. Yet Mr. Levin is adamant that the People, in order to try and regain the rights they are entitled to and the proper (and limited) scope of government in their lives, MUST abide strictly by what the Constitution allows them to do.  Again, never mind that the People nor the States ever assented to the changes that the federal government assumed for itself under the Constitution that SHOULD HAVE BEEN made legally through the Article V amendment process….. Mr. Levin still is steadfast that the People need to go through the arduous amendment process in order to get the government to do what it is/ was constitutionally REQUIRED to do.

Being the Deputy Director of the North Carolina Tenth Amendment Center, I naturally am disappointed that Levin has publicly rejected Nullification.  Mr. Levin says that Nullification is not a viable option in limiting the size and scope of the federal government.  When considering how to restore the government to its constitutional limits, he takes the position that Nullification should never be a remedy that is on the table.  In other words, he believes that the People should be carefully, strictly, and narrowly limited in their ability to define and constrain their government. He believes that the only options available should be those both expressly provided in the Constitution and NOT foreclosed by any decision, determination, or proclamation by the government itself.

Michael Maharrey, with the Tenth Amendment Center, defines Nullification as, “those of us with the authority to say no to the federal government executing that authority.”  As every supporter of Nullification knows, the individual states pre-existed the federal government.  While there were some founders (Nationalists) who wanted a national government with a general veto power over any and all legislative acts of the states which it disagreed with, this position was flatly rejected by the majority of delegates (Federalists) to the Constitutional Convention who thought it was the States that needed to be the parties with the veto power over the federal government. These Founders included James Madison and Thomas Jefferson (who may not have been at the Convention but was in constant contact with Madison regarding the task at hand).  As Maharrey explains: “The states created the federal government and enumerated power to it.”  In his writings and when he presents, he is quick to cite Madison’s famous Federalist No. 45 to emphasize the limits of such power enumerated by the states to the federal government, particularly in Article I, Section 8:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

Nullification - Michael Maharrey 2013

Maharrey explained that outside of those few and defined powers, everything else, all other power, is reserved and resides in the sovereignty of the individual people and in the states, in accordance to the Ninth and Tenth Amendments to the Constitution.  Nullification, in short, stands for the proposition that the federal government CANNOT be permitted to hold a monopoly over the interpretation of the Constitution and the definition of its powers and scope of government.  Government is a “creation” of the People and not its ruler.

If our Founding Fathers and founding revolutionaries had taken Mark Levin’s approach towards government, the colonies would never have had any legal ground to sever ties with Great Britain and the Articles of Confederation would still be the legally operable constitution that unites our states (since the people themselves were never apprised of the real purpose of the Convention – to scrap the government created by the Articles of Confederation, to start from scratch, and to draft a new Constitution and create a new government – and hence the delegates were without proper authority to do what they did).

Thomas Jefferson wrote: “That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY.”   [Kentucky Resolutions of 1799]

James Madison, in his Notes on Nullification (1834), explained: “…when powers are assumed which have not been delegated, a nullification of the act“ is “the natural right, which all admit to be a remedy against insupportable oppression…”

In the Virginia Resolutions of 1798, Madison wrote: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them…”

At North Carolina’s ratifying convention, James Iredell told the delegates that when ‘Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.’  In December 1787, Roger Sherman of Connecticut observed that an ‘excellency of the constitution’ was that ‘when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.’”

I’ll take James Madison and Thomas Jefferson and even James Iredell, the men who defined our liberty, as authorities on what is constitutional or not over Mr. Levin.

Constitutional attorney, Publius Huldah, recently wrote: “Resistance to tyranny is a natural right – and it is a duty.”   I’ll support Ms. Huldah’s position anyday over those attorneys who oppose Nullification.  Ms. Huldah sides with the People and their Natural Rights.  Those other attorneys side with a centralized, all-powerful and all-knowing government – the very thing we fought a Revolution to rid ourselves of.

In the United States, natural rights are protected by government and not violated by it.  At least that was the American ideal.

Nullification is the Rightful Remedy when you understand the simple truth – that anytime the federal government oversteps its constitutional bounds, it is taking away OUR liberty and our right to govern ourselves.  The federal government is not just stepping on the States’ rights, but it is a usurpation of INDIVIDUAL liberty.  Nullification is our immediate remedy to re-assert and reclaim those rights.  Read the Declaration of Independence again.  All government power comes from the individual.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”  Constitutions are written to define what powers the people have consented to give government. Constitutions are a permanent and fixed manifestation of the will of the people as to what inherent powers of self-government they agree to delegate to a common government for their behalf.   They are to be strictly construed and always read in a light most favorable to the individual since it is the individual from whom the power arises and the individual who has the most to lose.  Constitutions are not to be re-interpreted, misconstrued, re-labeled, or diminished in any way, shape, or form. They are not supposed to be “worked upon by the temper of the times.”  All power not expressly delegated resides in the People. Any attempt by a government to assume more powers than it was delegated naturally is a usurpation of the inherent rights and liberties of the People.

Again, as Thomas Paine wrote in his Rights of Man (1791): “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation.”  For anyone who wishes to dismiss Thomas Paine in any discussion of our founding government principles, consider this. It was Thomas Paine that George Washington had his men read as they pressed on in tattered clothes and bloodied bare feet and without pay to fight the Revolutionary War.  Washington wanted his men to understand full well what they were fighting for in America’s quest for independence and the right to govern as they saw fit in order to secure their God-given rights. No man would rightfully sacrifice his life to substitute one tyrant government for another.

When any government continues to usurp the powers of the People, or believes its powers to be more important than the rights of the People to limit their government, or to continue to redefine its powers, it becomes tyrannical. Our Constitution explicitly empowered every American with the right to limit their government. “

That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new Government…”   The federal government has no right or power to interfere with the right of the People to do so.  Similarly, it has no right to take away the remedy of Nullifcation.

Thomas Woods, author of the best-selling book Nullification: How to Resist Federal Tyranny in the 21st Century asks: “How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it?” As Madison explained in his Report of 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

The Tenth Amendment was added, along with the rest of the Bill of Rights, as an express “further limitation” on the federal government. In other words, the federal government would be limited by the recognition and assertion of States’ Rights and States’ powers.  The preamble to the Bill of Rights states clearly that “a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”  In other words, the parties that created and signed the Constitution (which then created the federal government) insisted that the Ninth and Tenth Amendments be added in order to more emphatically limit the federal government (all branches) through an emphasis on States’ rights and People’s rights. As such, the Supreme Court has no power to limit the power of the States in its ability to hold the federal government in check. The Bill of Rights is supposed to limit the government; the courts can’t limit the Bill of Rights.  After all, the Bill of Rights is also a limit on the federal courts !!

In conclusion, one only has to look at the enormity of the constitutional crisis we currently face and then look at the likely chance that Mr. Levin’s Article V Convention will offer any real relief.  It is very unlikely that our constitutional republic can be properly restored under that scenario – at least not in the near future. The American people are growing too restless and frustrated to wait.  In his article about a Nullification event in Wisconsin, Christian Gomez wrote: “As Washington continues to show no signs of retreating from its expansionist federal polices, encroachment in the lives of individuals, interference in healthcare, the free market, and violating the Constitution, the battle is not lost. Nor is it far from over, but it could be: ‘All it takes for evil to succeed is for a few good men to do nothing,’ Edmund Burke once said. In the case of the Restoring the Republic gathering in Pewaukee, Wisconsin, it is clear that more than just a few good men and women have no intention of doing nothing. So long as the people can be educated about Nullification, then hope is not fleeting.”

 

References:

Thomas Woods, “Is Nullification Unconstitutional?,” February 5, 2013.  Referenced at:  http://www.tomwoods.com/blog/is-nullification-unconstitutional/

Christian Gomez, “’Restoring the Republic’ Event in Wisconsin Addresses Nullification,” The New American, September 25, 2013.  Referenced at: http://www.thenewamerican.com/usnews/constitution/item/16619-restoring-the-republic-event-in-wisconsin-addresses-nullification

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification,” Freedom Outpost, September 14, 2013.  Referenced at:  http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

Cooper v. Aaron, 358 U.S. 1 (1958)

Ableman v. Booth, 62 U.S. 506 (1859)

Marbury v. Madison, 5 U.S. 137 (1803),

Edwin Meese III, “The Law of the Constitution.”  A Speech delivered to Tulane University on October 21, 1986.  Referenced at:  http://www.justice.gov/ag/aghistory/meese/1986/10-21-1986.pdf

Federalist No 45.  http://avalon.law.yale.edu/18th_century/fed45.asp

James Madison, Report of 1800.  http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63986&layout=html&Itemid=27

 

APPENDIX:

Ableman v. Booth (1859)  –

The Court noted:  “It appears that the State court has not only claimed and exercised this jurisdiction, but has also determined that its decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court.”

It went on to explain why the federal government and the Supreme Court must be supreme in their particular spheres of authority:

The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals.

The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that:

This Constitution, and the laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’

But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.

The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some tribunal was created to decide between them finally and without appeal.

This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions.

We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States…..

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them…..   Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution.  And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.

The Fugitive Slave Act is fully authorized by the Constitution of the United States.”  [pp. 516-525]

 

Is Nullification Unconstitutional

By Thomas Woods, February 5, 2013

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause.  It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose of and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant.  Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.

The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.

Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it.

And as for “but Madison later claimed he never supported nullification!” see my article: “Nullification: Answering the Objections,” by Tom Woods, Liberty Classroom [http://www.libertyclassroom.com/objections/ ] and/or pages 288-290 of my book Nullification.