Say Hello to My Little Friend !

TEA PARTY - Katydid with Don't Tread on Me Flag - BEST

Two days ago, I rescued this adorable hopper from my pool. While he was drying off, I took some pics of him. In this pic, with his hand raised, it looked like he was waving Hello to me. And then I thought….  maybe I can stick a flag in that hand.

Diane Rufino

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Government Control of the People – The Progressive Scheme: Making Useful Idiots Out of Useless Idiots

SOCIALISM - One Nation Under Government Control

by Diane Rufino, April 5, 2018

Saul Alinsky, the Godfather of the “Community-Organizing” movement and prophet of the progressive movement, wrote a book that many involved in grassroots politics are familiar with – RULES FOR RADICALS. With that book, he provided a guide for future community organizers to use in uniting and motivating low-income communities, or “Have-Nots,” in order for them to exert social, political, legal, and economic power. In other words, he outlined a plan to turn useless idiots into useful idiots for political purposes. The beauty of his plan is that the “Have-Not’s” are merely pawns; they are really not served in exchange for all their efforts. The ruse, and the promise, is that they will be. And they believe that for their efforts, their cause will be advanced. But the fact is that they are useful for only one purpose – to advance the goals of the progressive elites who need their political contributions to be successful. The ultimate purpose, of course, is the creation of a large, concentrated, socialist government with the power to control the lives of its citizens and the permanent control by the political elite. In fact, Alinsky’s Rules is based heavily on Karl Marx’ Communist Manifesto – the grand plan for world conquest by communism. Marx outlined how to foment a political revolution among the lower classes of people.

If government (controlled by a progressive political elite) can control the lives of the people (or at least, a huge chunk of them), if it can control the information they are given, the way they think, the necessities they need to support themselves, and if it can remove from them the burden of education and personal responsibility and even the confines of a marriage to have and raise children, then it doesn’t have to worry about politics. In the government of Saul Alinsky, and in the government of the Progressives, political power is secured as long as people are controlled.

Therefore, the goal of the progressives, the socialists, the liberals (all those who seek a large aggressive government) is political security and the establishment of a permanent ruling class…  no more “red state” versus “blue state”; no more “Republican vs. Democrat.”  They seek the end of the Conservative movement. They seek the end of the country of our founding. They seek a fundamental transformation.

That goal is made clear by Alinsky in the very dedication he wrote in the forward to his book, which, by the way, has the full title “RULES FOR RADICALS: A Pragmatic Primer for Realistic Radicals.” He dedicated his work to Lucifer, the original “radical” and “community organizer.” The dedication reads: “Lest we forget at least an over-the-shoulder acknowledgment to the very first radical: from all our legends, mythology, and history (and who is to know where mythology leaves off and history begins — or which is which), the first radical known to man who rebelled against the establishment and did it so effectively that he at least won his own kingdom — Lucifer.”

By his own admission, Alinsky’s book is a scheme for transformation – transforming a system “as it is” to one that “is as it should be,” with the “should be” to be determined by progressives. Lucifer took a world modeled by God for good, with parameters established to enrich for goodness and for fruitful conduct and behavior, and by manipulating individuals and appealing to their worst tendencies, transformed that good and decent existence into one plagued with evil and mortal sin. Alinsky praises this radicalization and transformation as a good thing – one that should be modeled and replicated.  One would say that our country – founded on the notion of individual liberty and limited government, predicated on religion and morality in order to provide proper boundaries for acceptable conduct and personal responsibility – is as good a state as humanly and earthly possible and transformation will only destroy the inherent good and Godly in that system.

Which political party has become the party of the Progressive Movement…. The party of transformation?  It is, and has been for many years now, the Democratic Party.

Alinsky’s writings helped mold the likes of Hillary Clinton, Barack Obama, and ultimately, through her husband’s influence, Michelle Obama. Barack Obama studied RULES FOR RADICALS to become the community organizer that he was. His fruits paid off for his own election. How many times have we heard him use to phrase (in one form or another): “the world as it is and the world as it should be…”?  And Hillary Clinton was so enamored and motivated by the book that she characterized Alinsky as her mentor. She invited him to speak at her college, Wellesley College, and gave his introduction. In her college senior thesis, she chose to research and write a dissertation entitled “There is Only the Fight… An Analysis of the Alinsky Model.” As Jeannie DeAngelis wrote in her February 3, 2014 article in American Thinker: “That model may be the reason why, after Bill Clinton took office, nasty tactics, shifting blame, and truth-parsing became commonplace in American politics.”

Following in the footsteps of Marx, Alinsky applies a simple model in his scheme to organize the “Have-Nots” to achieve his ultimate goal of transforming America —  he focuses on their poverty and status while pointing to a government that has not done enough for them as the common enemy.

The first task of the community-organizer is that of agitating the “Have-Nots” (the useless idiots). Alinsky explains how to achieve that – by rubbing resentments, fanning hostilities, and searching out controversy. The organizer must play on their sense of apathy – of accepting a situation that has done little for them. Alinsky would say, “The first step in community organization is community disorganization.” Through a process combining hope and resentment, the organizer tries to create a “mass army” that brings in as many recruits as possible from the streets, the impoverished communities, corner gangs, minority groups, labor unions, corner gangs, and other non-conformist type individuals.

Once the “Have-Nots” have organized, protested, and gone to the voting booth, the pay-off is abysmal. They are not served, but rather, they are put in a position to be controlled over and over again. They are treated to impressive sound bites and unrealistic promises, and perhaps given a free cell phone here and there, but in reality, they are politically enslaved.

Useless idiots are only useful for one purpose, and that’s at the ballot box. They serve no other meaningful purpose in society; they are a burden and merely pose problems. Useless idiots just want to be taken care of; the worst of them believe they are “entitled” to be taken care of.

Because of their lowly status and because of their tendency for dependency, useless idiots can be manipulated and manipulated they are – and have been. They’ve been manipulated since the end of the 1960’s. Again, they are useful for the ultimate transformation of our country.

I never understood the attraction of a socialist state to the individual, especially in this country, and to so many people. In a socialist state, individuals lose their rights, their freedoms, and their choices to the dictates of government.

Alinsky’s tactics for community organizing would inspire two Columbia University sociologists, Richard A. Cloward and Frances Fox Piven to write their now-infamous article “The Weight of the Poor: A Strategy to End Poverty.” In that article, Cloward and Piven articulated a strategy – now known as the “Cloward-Piven Strategy” – which seeks to hasten the fall of capitalism by overloading the government bureaucracy with a flood of impossible demands, in particular welfare and other entitlement programs (“the welfare crisis:). The inability to meet these demands – required, in most part (according to the article) by the ghetto communities and poor African-Americans – would push the United States into crisis and economic collapse and ultimately usher in a social state – one that would have to be established if it was to be able to effectively meet the demands of the people.  The one particular demand that Cloward and Piven wrote about in their article was the demand of a guaranteed income level. There would need to be major economic reform at the national level to provide this new program of direct income redistribution.  This major transformation of the government – from one that leaves the individual free to exercise their rights to pursue opportunities to one that smothers the individual in their free exercise of rights in order to “take care of certain individuals” – is a good thing, and a necessary thing, according to Cloward and Piven.

One can see how Saul Alinsky’s RULES for mobilizing the “Have-Nots” has motivated and has inspired the Columbia sociologists into advancing their “Strategy” for transforming this country into a social state.

By the way, both the Saul Alinsky book and the Cloward-Piven strategy were written to empower and advance the Democratic Party and to secure a Democratic-controlled government.

Now, there is incorrect information being circulated on the internet about “the 8 levels of government control needed to establish a social state” and that information being attributed to Alinsky and his book.  I’ve actually seen where it is attributed to Cloward and Piven as well. While the information is not addressed in RULES FOR RADICALS, nor in the article addressed above, these levels are nonetheless worth addressing.

These 8 levels, according to the unfounded articles, are those that a government would need in order to establish an effective social (socialist) state. I am discussing them below because they actually make a lot of sense. Each level makes it harder for individuals to break free from the unhealthy dependency on government and makes it easier for government to control the people, especially the young. While there is no actual source cited for the origin of these levels of control, several are actually implicated in Karl Marx’ Communist Manifesto and many are mentioned expressly in the Cloward-Piven Strategy. With respect to controlling people for the purposes of manipulating them, Alinsky addresses at least two as being necessary.

The levels of control of which I am referring are:

(1)  Healthcare – A government that controls the people’s healthcare controls the people themselves

(2)  Poverty – people in poverty are easiest to control; hence, it is most beneficial for government to pursue policies that increase the level of poverty or keep individuals and their offspring in poverty

(3)  Debt – government will increase the national debt to unsustainable levels because then it can continue to tax heavily (and to increase taxation; to burden property). Taxation produces more poverty or at least, prevents many from improving their financial situation

(4)  Gun Control – disarming the people allows the government to establish a police state, if need be

(5)  Welfare – welfare allows government to take control of every aspect of a recipient’s life – food, housing, choices, even decisions to marry or to pursue education. Government will never get rid of welfare programs if its goal is socialism

(6)  Education – government needs to take control of what its youth learns…  what they read, what they listen to, and what things mean; it needs to use the education system as a means to indoctrinate its citizens.

(7)  Religion – a belief in God needs to be removed from schools, government, the marketplace, and the public square. A socialist government substitutes itself for the role of God.  A moral, religious people will always question the legitimate role of government and so it must minimize this faction.

(8)  Class Warfare government needs to divide its people into poor and wealthy — the “have’s” and the “have-not’s.”  It also needs to divide people along racial lines – characterizing one group as “victims” and the other as “oppressors” (or as “beneficiaries”). This way it is easier to demonize the wealthy, the empowered, the benefitted classes and therefore, to take from them — their money (through taxation – to benefit the poor), and their positions (through “diversity”-enrichment programs). It is easier to re-engineer society by creating division, hatred, and distrust.

Looking at this list, the federal government has achieved every one of these levels of control – EXCEPT gun control. Is it any wonder that the left is pursuing it at such a rabid level lately?  Is it any wonder that it uses every tragedy to attack the Second Amendment?

If government, in fact, must undertake massive economic reforms to deal with the tremendous burden of our dependent classes (those taking advantage of welfare and other social programs, or using them as a way of life), including the unsustainable burden of immigration, subjugation and control of the American people is the natural consequence. Total control requires people to be unarmed – unable to physically revolt against their government.

Think seriously about the information I’ve written in this article. We are talking about the potential transformation of the country we love. If you are a “useless idiot,” I implore you to resist being manipulated by those who really care little for you and certainly for your improved status. After all, if your position is improved too much, you cannot be controlled and therefore are of no use to them. I also implore you to get angry at the left (the Progressives, the liberals, the Democrats) for characterizing you this way and manipulating you for their purposes. Get angry and take charge of your life, proving to everyone (most importantly, to yourself and your loved ones) that you are a vital part of a society and a country that values every individual and protects their rights to live free), not one that just wants to control him or her and thus limit those rights.

Become involved; become engaged; become educated and informed. Seek out the truth, for the truth will set you free.

This is your home – the United States of America.. The “Home of the Free.”  This is, or will be, the home of your children. This is, or will be, the home of your grandchildren. Help preserve it.  Don’t allow this current generation, and maybe the next, to be the last ones to enjoy the freedoms we’ve come to be known for.

 

References:

Lonestarliberty, “What is Happening in America: Alinsky’s Rules for Radicals,” May 17, 2017.  Referenced at:  http://lonestarliberty.net/alinskys-rules-radicals/

Frances Fox Piven and Richard Cloward, “The Weight of the Poor: A Strategy to End Poverty,” The Nation, May 2, 1966.  Referenced at:  https://www.commondreams.org/news/2010/03/24/weight-poor-strategy-end-poverty

The Ten Planks of the Communist Manifesto (Karl Marx) –  http://laissez-fairerepublic.com/tenplanks.html

A Proposed State Sovereignty Resolution Re-Asserting the Tenth and Second Amendments

Don't Tread on Me (#3)

by Diane Rufino, February 21, 2018

The following is a proposed State Sovereignty Resolution that I wrote and proposed to my legislators in the North Carolina General Assembly. I feel very strongly that the General Assembly should make it clear that the people’s right to have and bear arms is safe and secure in our state.

NORTH CAROLINA STATE SOVEREIGNTY RESOLUTION

A Bill Announcing the Intention to Nullify any and all Unconstitutional federal Gun Control Bills that the State of North Carolina and its People believe to be an Infringement of their Natural Rights of Self-Defense and Self-Protection as Recognized by the Second Amendment

The State of North Carolina asserts the following

A warm attachment to the Union of the States, to which it had pledged its loyalty in accordance with the terms of the Constitution, the compact that created it, and to that end, it has a duty to watch over and oppose every infraction of those principles which constitute the basis of that Union, because only a faithful observance of them can secure its existence and the public happiness;

Its recognition and respect for the lawful and constitutional process for altering the terms and meaning of the Constitution, including the amendments contained in the Bill of Rights, which are the two procedures listed in Article V (the Amendment Process);

The Second Amendment recognizes that a well-regulated Militia, being necessary to the security of a free State, shall not be infringed;

The Second Amendment also recognizes that the right of the people to keep and bear Arms, shall not be infringed;

The Second Amendment recognizes the natural right of Self-Defense and Self-Protection, both on behalf of the State (“a free State,” by the way) and of the individual;

The Second Amendment doesn’t grant these rights but rather, it protects them, without condition or limitation, from the reaches of the federal government, especially the US Congress and its law-making power;

The phrase “SHALL NOT BE INFRINGED” is clear and instructional on its face;

To affirm the point above further and to support it greater, the States specifically included a Preamble to explain the reason for the ten amendments to the new Constitution (amendments that were demanded by them and without them would have jeopardized and prevented the ratification of that document. The Preamble reads: “The Conventions of 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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution”;

The Preamble to the Bill of Rights makes abundantly clear that the Constitution established a federal government of limited powers, and that in those limited objects of government, the federal government is limited even further by the ten amendments added (ratified by 3/4 of the States) on Dec. 15, 1791;

Just as the Supremacy Clause asserts the supremacy of the federal government with respect to the powers delegated to it, which are “few and defined” (Federalist No. 45, written by the same man, James Madison, who authored the Constitution), the Tenth Amendment and the Preamble to the Bill of Rights assert the supremacy of the States with respect to the powers reserved to them;

That one of the reserved powers of the State is the responsibility, the duty, to prevent unconstitutional federal laws, policies, executive actions, and court opinions from infringing on the rights of its people;

The Second Amendment has a very purposeful history; the rights recognized were not rights pulled out of thin air but rather stem from Natural Law and the concept that certain rights are endowed by a Creator (inherent in our very humanity);

Our Founders were not talking about hunting when they demanded that the Second Amendment be added to the Constitution; they were concerned about the freedom of the individual, and also the populace in general, to be armed in the face of a powerful and aggressive government – one that may send out a standing army in times of peace, one that may try to enact laws for gun and ammunition confiscation, and one that may eventually try to outright or effectively disarm its people;

The history of England, and indeed the history of many other nations, teaches us that when individuals are unable to defend themselves and their rights, they essentially have no rights. Rather, they have temporary permission from government to exercise rights until they somehow pose a serious threat to those in power.

James Madison once said: “If Men were angels, no government would be necessary.”  But what if it was the federal government that was not the angel?  The Second Amendment is the contingency plan in such a case;

James Madison also wrote (in Federalist No. 28): “If the representatives of the People betray their constituents, there is no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government”;

In addition to the natural right to defend one’s life and property, as well as those of family members and perhaps fellow citizens who are vulnerable,  there are other components of self-defense and self-protection other than the actual confrontation and neutralization of a violent intruder or attacker, that the people recognize – one being DETERRENCE;

Gun-Free Zones, homes without effective firearms, and individuals of sound mind disenfranchised in their right to have and bear arms serve as attractive targets for criminals and evil-intentioned, mentally-disturbed individuals;

The State of North Carolina, under the Tenth Amendment and according to compact principles, reserves the right to determine when the federal government has over-stepped its constitutional bounds with respect to legislation on gun control;

The State of North Carolina will NOT comply with any federal gun control law or policy that hinders or burdens its citizens in their free exercise of the natural right of self-defense and self-protection recognized by the Second Amendment;

In furtherance of its DUTY to prevent unconstitutional or abusive acts of the federal government on its citizens, and in furtherance of its DUTY to prevent the God-given and Natural rights of its People, the State of North Carolina will interpose using whatever means necessary to ensure that such gun control laws or policies (including judicial opinions), or any laws, policies, or court opinions for that matter in violation of the Constitution generally or the Bill of Rights specifically are not enforced in the State.

** ** ** ** ** ** ** ** ** ** ** ** **

I posted a closely-related article, with commentary on the Second Amendment, prior to this one –  https://forloveofgodandcountry.com/2018/04/01/keep-the-second-amendment-secure-in-north-carolina-2/

- 2018 (gray shirt, March 24, 2018) - BEST

Keep the Second Amendment Secure in North Carolina

SECOND AMENDMENT - Firearm on Constitution

by Diane Rufino, March 27, 2018

My appreciation of the Second Amendment and gratitude for the wisdom and insistence of our Founders and for the States who insisted that it was necessary to be included in our Constitution (or else they would refuse to join the Union) was solidified in an incident that happened to me many years ago.

When I was 26 years old, I was living on my own in my first apartment – a tiny, one-bedroom place in Plainsboro, New Jersey. My first job out of grad school didn’t pay very much so I had to work a second job to support myself.  One night, after getting home from my waitressing job and taking a shower, I had trouble sleeping. So I put on the TV and found a good Clint Eastwood movie to watch – Any Which Way But Loose. It was a very small apartment and it turns out that the TV stand I had was very close to the apartment door, which was locked. It was about 1:00 – 1:30 in the morning – maybe later. As I was watching the movie, I happened to notice that the door knob was moving. Someone was outside my door, trying to get in. The knob was moving harder and harder, and I was scared like I had never been scared before in my life. (I had learned soon after I moved into the apartment complex that a young woman tenant had been murdered just before I moved in).  As I was shaking uncontrollably and trying to find the number for the Plainsboro Police (the days before cell phones and 911), I heard a man speak through the crack in the door “Open the door; you’re the girl with the silver Fiero, right?”  In fact, I had a silver 1983 Pontiac Fiero. The man trying to break in specifically targeted MY apartment. He was looking for ME. I didn’t know who he was and I couldn’t imagine who he was. I was new to the area and had very few friends and acquaintances. I called the police, using the only phone I had, which was next to the kitchen. It was not in a direct line of view to the door. The police dispatcher told me to stay on the line and that a police car would be there shortly.  I picked up the only knife I had in my apartment – a cheap steak knife. All I kept saying was “Please hurry. Please hurry. I’m so scared.”

I was absolutely helpless. I am 4 foot 9 inches tall and weighed less than 100 pounds at the time. I had a cheap knife in my hand, not even sure if I was capable of overcoming my state of fear to defend myself.

The police arrived before the door was pried open and I collapsed in tears, grateful that someone was there to protect me. The potential intruder told the police that he had been drinking and in his drunken state, he must have gotten confused because he thought he was trying to get into his own apartment.  I told the police that it wasn’t the truth because he had called out “You’re the girl with the silver Fiero.”  Nevertheless, the police believed his story and they let him go. They admonished him for scaring me and told him “don’t do it again.” Turns out that he lived in the building next to my building; a grassy courtyard separated our buildings. He lived on the second floor.  My apartment was a ground-floor apartment. So, it was hard to imagine the police would have believed his story about being confused and thinking it was his apartment.

I never stayed in the apartment again after that. I stayed with a friend for about two weeks and then moved into a new place, in another town.

I often thought what I would have needed to defend myself that night, especially if he rushed in and rushed towards me. Again, I’m short and barely able to keep my composure when nervous. I am prone to anxiety attacks. Would a simple handgun holding 5 bullets been sufficient for me to stop him?  I can’t say for sure. Maybe, but maybe not. I imagine I would not have been composed enough to aim well so maybe not. I would have needed something that didn’t require accuracy. What if there were two men?  Well then, a simple handgun would not have been enough.

What if Plainsboro law required individuals to have guns dissembled in the home?

Self-protection is not a one-size-fits-all model. The Right to Self-Defense doesn’t require a one-size-fits all scheme. The Right to Self-Defense has no limits or conditions; it is merely the RIGHT to defend oneself (against others who intend harm), allowing each individual to decide for himself or herself what is needed to ensure that. The government once re-interpreted its “Necessary and Proper” Clause to mean “anything convenient” to help the government carry out its functions. It reasoned, in direct conflict with the very words of Article I, Section 8, that the government needs to determine, and to do, whatever helps it (“whatever is convenient”) to carry out its functions. We the People interpret the Second Amendment in the same broad sense –  “anything convenient” to carry into the effect the right to defend and protect oneself.

The Right to Life is recognized ever so profoundly in perhaps the most important, most significant document in the world – our American Declaration of Independence. “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.”  The Right to Life is not the government’s to give, or define, to limit, or to take credit for, and the natural Rights to protect it, secure it, and preserve it (known as the Right of Self-Defense and the Right of Self-Preservation) are inherently equal to that Right to Life.

The day the government denies we the people that right to protect, secure, and preserve our lives is the day that we are no longer free but merely subjects, inferior in our status to the government’s right and power to preserve itself. The day that we lose our Right to Have and Bear Arms is the day that we surrender all other rights. The Right embodied in the Second Amendment is the one right that secures all others.

The Declaration goes on to tell us what we the people have the inherent and natural right to expect from government: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,….”  And then it instructs what we also have the inherent and natural right to do when government fails to secure our rights and instead, threatens them: “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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”

Powerful and progressive actors (individuals and organizations) in this country, including Michael Bloomberg, are forcing an evil agenda on the people of this country and on the government which has, as its ultimate goal, the destruction of the rights we are entitled to and the ones we need to continue being a free people. These actors are forcing us to re-evaluate whether our government is becoming destructive of the ends for which it was created and the result is not going to be pretty.  A government (King George III of England) tried that over 200 years ago at Lexington and Concord, MA, and then at Williamsburg, VA, and the result was a revolution for the right to govern as the colonies saw fit, with the goal to never surrender their rights and liberties again. Today’s youth don’t understand this. Today’s youth don’t even know about this.  Today’s progressives don’t care about this.

There are a lot of people out there, including those who marched on DC, who are advocating for the weakening and even the repeal of the Second Amendment. But that cannot happen. Let’s be absolutely clear on that. The Constitution – and thus the legal status – of the Second Amendment is crystal clear on the matter:  The Second Amendment confers the RIGHT to an individual to have and bear arms for SELF-DEFENSE (McDonald v. Chicago, 2010, and Heller v. District of Columbia, 2008).  That right SHALL NOT BE INFRINGED.  Furthermore, the ONLY way the Second Amendment can be limited or abolished is through the Article V amendment process.  And there are some legal experts who believe that the amendments comprising the Bill of Rights can never be amended. Amendments, they explain, can be added (for example to include other rights), but the original ten amendments are to remain in force as they are because they recognize what, at the very least, our inherent liberty rights include. Because they are rights that are inalienable to us (Life, Liberty, and the Pursuit of Happiness), we are always entitled to them.

What does it mean to have the natural right of self-defense?  It means we can be expected to protect ourselves, in any way that the situation requires. It means that if we are in fear for our lives or serious harm, we have the right to eliminate that threat. Individuals have the right to exercise their rights but only when they don’t seriously impact those of other individuals. I have the right to free speech. But my right doesn’t include the right to shut yours down. I have the right to own a gun, but I don’t have the right to take the life of an innocent person with it. The inherent, or natural, right of self-defense and self-preservation is recognized, and has been recognized historically, in criminal law. A person who shoots and kills an intruder carrying a gun commits homicide which is a serious crime. But under the law, it is considered “justifiable” and therefore not punishable. A woman who stabs and kills a man who is attacking her and intending to rape her commits homicide. But under the law, it is considered “justifiable” and therefore not punishable. “Justifiable” is a term which means that the killing was “justified,” and one of the most common reasons is self-defense.

We don’t need the Second Amendment to have the right to defend ourselves, including with firearms. The Second Amendment confers no such right. Rather, it recognizes the right. If bad guys can threaten lives with guns (which they will ALWAYS be able to do; which they have ALWAYS been able to do), innocent victims have the right to have access to guns to counter that threat. If we continue down the road to governments like the Third Reich, Stalinist Russia, Mao Zedong’s communist China, Pol Pot’s Cambodia, Hugo Chavez’ Venezuela, and even British King James II, to use the full force of government to ignore individual rights and eliminate political opposition, we know that that its operatives and its armies will threaten American citizens with guns and all kinds of advanced weapons. We have the right to have access to guns, and also advanced weapons, to counter that threat.  Like kind for like kind. That is what is meant by being free and that is what is meant by having a meaningful right to self-defense.

We see a dramatic rise in violence by bad people and we see a dramatic rise in retaliatory violence by persons who are emotionally and mentally unstable. We are seeing something play out that people throughout history have also seen – bad people and evil-intentioned people will ALWAYS find ways to get weapons (or they will make them, such as Timothy McVeigh and the UnaBomber Ted Kaczynski, or they will weaponize other instrumentalities, such as cars, trucks, planes).  The rise in abnormal behavior, in criminal tendencies, in retaliatory mass shootings, in mental instability is something we should be focusing on. It’s the behavior – the diseased mind and the black heart – that seeks out the guns for violence. The guns don’t force themselves on those individuals. We should be focusing on what in our society is giving rise to this behavior – this troubling trend. Specifically, we should be looking at policies that government has forced on our communities through its seeming desire to change our social fabric and our social norms, to force new values on us and to force us to repress old conventional ones. Government – our public schools and our colleges and universities, our public offices, our public hospitals, the main-stream media (undoubtedly, an arm of the government’s establishment) – has been pushing a new agenda now for many years and that is “Diversity.”  We are indoctrinated to believe that diversity is the most important factor in college admissions, in the make-up of a student body and in the classroom, in the workforce, in our police forces, and in government; we are indoctrinated to belief that what we look like – what the color of our skin is, what country we came from, what gender we are, and what gender we want to be – is far more important than the competency and skills we bring to that school or that office. The government disregards the entire sad history of this country from the era when slavery was abolished until Civil Rights legislation was passed when we DID focus only on what a person looked like. Government doesn’t learn from history but rather repeats it. Government, through its willing and reckless refusal to enforce the most important of laws, our immigration laws and its willful blind eye to all the crime and lawlessness that has resulted, indoctrinates us, tacitly, that laws are not really to be taken too seriously. Government, contradicting what our parents used to teach us, undermines the importance of the rule of law and undermines the notion of equality under the law.

Morality is a thing of the past and so is religious observance in our daily lives. The family is no longer the bedrock and the pillar of society, and we see that in the laws of progressive states and in the court decisions in all other areas. We are intolerant to focus on the “nuclear family.” We are intolerant to refer to parents in gender terms. We are discriminatory if we dare accept the psychologists’ and the social scientists’ data that the proper emotional and psychological development of children depend on there being both a female and a male parent in the home and in their raising. We are discriminatory if we dare accept the well-established and reproducible data that children end up living in poverty, with a lack of education, and with psychological or domestic problems when they are raised in a single parent home. We are discriminatory if we dare accept the well-established and reproducible data that those who commit violence, those who commit mass murder, and those who embrace a criminal lifestyle are those raised without a father or without an effective father figure in their lives  We who lived in societies that respected and recognized traditional family values (and legislated to that effect) enjoyed its benefits. Societies were safer and children progressed through their childhood and teen years without incident and went on to become healthy and contributing members, having families of their own and raising their children successfully. We who recognize that reality and who recognize the robust data on the social benefits of a traditional family and the social problems created by the lack of such a family are antiquated and a threat to the progress of society in this country. Most families are no longer intact or have been re-established through second marriages, etc.  Children are psychological playthings – mere social experiments whose well-being comes at the expense of the desires or the recklessness of their parents or is merely considered as less important. Those were not the values of my parent’s day.

So, we don’t need the Second Amendment to exercise our rights of self-defense and self-protection. What we would like is our government to say “Government is prohibited from defining limits to the Second Amendment; the Constitution is clear on that.” We need our government to be of the kind that the Declaration of Independence promises us –  one that has as its primary purpose the security of our individual rights to Life, Liberty, and the Pursuit of Happiness. And one way to demonstrate that it is such a government is to respect the Second Amendment and not push to have it limited or as former Supreme Court justice John Paul Stevens urged, to have it abolished. Should that, in fact happen, and especially if it happens through legislation by the US Congress or by pronouncements from the bench by activist judges, then we have an illegitimate government and the provision in the Declaration which states “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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…” is triggered and the people have the natural right to separate from it.

I have proposed a State Sovereignty Resolution to my legislators in the North Carolina General Assembly. I feel very strongly that the General Assembly, our legislative body (“The People’s Body”), should make it clear that the people’s right to have and bear arms is safe and secure in our state.

The text of my proposed State Sovereignty Resolution is provided below:

NORTH CAROLINA STATE SOVEREIGNTY RESOLUTION

A Bill Announcing the Intention to Nullify any and all Unconstitutional federal Gun Control Bills that the State of North Carolina and its People believe to be an Infringement of their Natural Rights of Self-Defense and Self-Protection as Recognized by the Second Amendment

The State of North Carolina asserts the following

A warm attachment to the Union of the States, to which it had pledged its loyalty in accordance with the terms of the Constitution, the compact that created it, and to that end, it has a duty to watch over and oppose every infraction of those principles which constitute the basis of that Union, because only a faithful observance of them can secure its existence and the public happiness;

Its recognition and respect for the lawful and constitutional process for altering the terms and meaning of the Constitution, including the amendments contained in the Bill of Rights, which are the two procedures listed in Article V (the Amendment Process);

The Second Amendment recognizes that a well-regulated Militia, being necessary to the security of a free State, shall not be infringed;

The Second Amendment also recognizes that the right of the people to keep and bear Arms, shall not be infringed;

The Second Amendment recognizes the natural right of Self-Defense and Self-Protection, both on behalf of the State (“a free State,” by the way) and of the individual;

The Second Amendment doesn’t grant these rights but rather, it protects them, without condition or limitation, from the reaches of the federal government, especially the US Congress and its law-making power;

The phrase “SHALL NOT BE INFRINGED” is clear and instructional on its face;

To affirm the point above further and to support it greater, the States specifically included a Preamble to explain the reason for the ten amendments to the new Constitution (amendments that were demanded by them and without them would have jeopardized and prevented the ratification of that document. The Preamble reads: “The Conventions of 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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution”;

The Preamble to the Bill of Rights makes abundantly clear that the Constitution established a federal government of limited powers, and that in those limited objects of government, the federal government is limited even further by the ten amendments added (ratified by 3/4 of the States) on Dec. 15, 1791;

Just as the Supremacy Clause asserts the supremacy of the federal government with respect to the powers delegated to it, which are “few and defined” (Federalist No. 45, written by the same man, James Madison, who authored the Constitution), the Tenth Amendment and the Preamble to the Bill of Rights assert the supremacy of the States with respect to the powers reserved to them;

That one of the reserved powers of the State is the responsibility, the duty, to prevent unconstitutional federal laws, policies, executive actions, and court opinions from infringing on the rights of its people;

The Second Amendment has a very purposeful history; the rights recognized were not rights pulled out of thin air but rather stem from Natural Law and the concept that certain rights are endowed by a Creator (inherent in our very humanity);

Our Founders were not talking about hunting when they demanded that the Second Amendment be added to the Constitution; they were concerned about the freedom of the individual, and also the populace in general, to be armed in the face of a powerful and aggressive government – one that may send out a standing army in times of peace, one that may try to enact laws for gun and ammunition confiscation, and one that may eventually try to outright or effectively disarm its people;

The history of England, and indeed the history of many other nations, teaches us that when individuals are unable to defend themselves and their rights, they essentially have no rights. Rather, they have temporary permission from government to exercise rights until they somehow pose a serious threat to those in power.

James Madison once said: “If Men were angels, no government would be necessary.”  But what if it was the federal government that was not the angel?  The Second Amendment is the contingency plan in such a case;

James Madison also wrote (in Federalist No. 28): “If the representatives of the People betray their constituents, there is no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government”;

In addition to the natural right to defend one’s life and property, as well as those of family members and perhaps fellow citizens who are vulnerable,  there are other components of self-defense and self-protection other than the actual confrontation and neutralization of a violent intruder or attacker, that the people recognize – one being DETERRENCE;

Gun-Free Zones, homes without effective firearms, and individuals of sound mind disenfranchised in their right to have and bear arms serve as attractive targets for criminals and evil-intentioned, mentally-disturbed individuals;

The State of North Carolina, under the Tenth Amendment and according to compact principles, reserves the right to determine when the federal government has over-stepped its constitutional bounds with respect to legislation on gun control;

The State of North Carolina will NOT comply with any federal gun control law or policy that hinders or burdens its citizens in their free exercise of the natural right of self-defense and self-protection recognized by the Second Amendment;

In furtherance of its DUTY to prevent unconstitutional or abusive acts of the federal government on its citizens, and in furtherance of its DUTY to prevent the God-given and Natural rights of its People, the State of North Carolina will interpose using whatever means necessary to ensure that such gun control laws or policies (including judicial opinions), or any laws, policies, or court opinions for that matter in violation of the Constitution generally or the Bill of Rights specifically are not enforced in the State.

** ** ** ** ** ** ** ** ** ** ** ** **

 

Notice that the Resolution only recognizes a rightful limitation of the right and ability to purchase and possess guns when it comes to persons who have a history of violence or mental instability. It is only in these two instances that individuals are unable to appreciate or respect the rights of others and therefore have been deemed to have forfeited their rights under the Second Amendment.

The Resolution that I have written (above) can easily be modified for a Sovereignty Bill or a Nullification Bill. If it is modified for such a bill, it should include the various types of interposition (action) that North Carolina would be willing to pursue (and will pursue) in order to shield its citizens from the effect of unconstitutional federal gun control laws. In other words, the bill should list the various types of action that the state and its officials will carry out in order to prevent such gun laws from being enforced on the citizens – including such things as arresting and jailing federal officers who attempt to come into the state to enforce the laws, not recognizing federal court opinions that erode or limit the Second Amendment, removing and disbarring judges from the bench who attempt to punish NC citizens under the federal law, empowering Sheriffs to not enforce the law or to share information with the federal government, refusal to allow its state officials to cooperate in the enforcement of the law, and challenging the law in court.

If you agree with the sentiment expressed in this article and if you agree with the points articulated in the Resolution, please share with others. If you agree that North Carolina should adopt this, or a similar, resolution affirming the Second Amendment, please contact your representative and send them a copy of what I have written. If you are not from North Carolina but would like your state legislature to adopt such a resolution, please contact your representative(s) and share this article – or at least the resolution.

All tyranny needs is for good people to do nothing.  The powerful progressive movement in our country will continue to misuse and manipulate elements of our government – the liberal, progressive, activist courts and the politically-deranged members of Congress – to strip our rights away. Our rights are what allow us to stand up for the truth and stand up against our aggressive government.  We cannot remain silent and we must not allow their agenda to continue to move forward. The Second Amendment – the right to have and bear guns for self-defense is where we must draw the line, as our founding generation did. That is what Patrick Henry was talking about when he exclaimed: “Give Me Liberty or Give Me Death!”  Without the right of self-defense and the right to use firearms for self-defense, we effectively have no secure rights. Without the Second Amendment, we have no effective way to protect the others.

Saul Alinsky, building on Lenin’s original plan for world conquest by communism, wrote a book entitled “Rules for Radicals” in which he outlined a plan to turn useless idiots into useful idiots for political purposes. The ultimate purpose, of course, is the creation of a large, concentrated, socialist government with the power to control the lives of its citizens. I never understood the attraction of a socialist state, especially in this country, and to so many people.  In a socialist state, individuals lose their rights, their freedoms, and their choices to the dictates of government. Alinsky, like Lenin, examined the various levels of control that a government would need in order to establish an effective socialist state and those levels are, in order:

(1)  Healthcare – A government that controls the people’s healthcare controls the people themselves

(2)  Poverty – people in poverty are easiest to control; hence, it is most beneficial for government to pursue policies that increase the level of poverty or keep individuals and their offspring in poverty

(3)  Debt – government will increase the national debt to unsustainable levels because then it can continue to tax heavily (and to increase taxation; to burden property). Taxation produces more poverty or at least, prevents many from improving their financial situation

(4)  Gun Control – disarming the people allows the government to establish a police state, if need be

(5)  Welfare – welfare allows government to take control of every aspect of a recipient’s life – food, housing, choices, even decisions to marry or to pursue education. Government will never get rid of welfare programs if its goal is socialism

(6)  Education – government needs to take control of what its youth learns…  what they read, what they listen to, and what things mean; it needs to use the education system as a means to indoctrinate its citizens.

(7)  Religion – a belief in God needs to be removed from schools, government, the marketplace, and the public square. A socialist government substitutes itself for the role of God.  A moral, religious people will always question the legitimate role of government, and so, it must minimize this faction.

(8)  Class Warfare – government needs to divide its people into poor and wealthy — the “have’s” and the “have-not’s.”  It also needs to divide people along racial lines – characterizing one group as “victims” and the other as “oppressors” (or as “beneficiaries”). This way it is easier to demonize the wealthy, the empowered, the benefitted classes and therefore, to take from them — their money (through taxation – to benefit the poor), and their positions (through “diversity”-enrichment programs). It is easier to re-engineer society by creating division, hatred, and distrust.

Looking at this list, government has achieved every one of these levels of control – EXCEPT gun control. Is it any wonder that the left is pursuing it at such a rabid level lately?  Is it any wonder that it uses every tragedy to attack the Second Amendment?

So again, if you agree with the sentiment expressed in this article and if you agree with the points articulated in the Resolution, please share with others. And if you live in North Carolina, please contact your state rep and send him a copy.

There was a time when North Carolina was the most liberty-minded of all the colonies and all the states. She has a profound and impressive history. My hope is that her legacy will live on with her respect for its citizens’ Second Amendment rights.

[NOTE:  I wanted to include this disclaimer, after the fact. Doing research for my April 5 article, I learned that the 8 Levels of Government Control to Establish a Social State is not included in Saul Alinsky’s book “Rules for Radicals,” and in fact, is not attributable to him at all. Some, however, have attributed some of the levels to Richard Cloward and Francis Fox Piven (“The Cloward-Piven Strategy”).  In my article: “Government Control of the People – The Progressive Scheme:  Making Useful Idiots Out of Useless Idiots,” I discuss Saul Alinsky and his book, and its potential for transforming the character of our country, but I also address this misinformation about the 8 levels.  The article is posted here:   https://forloveofgodandcountry.com/2018/04/05/government-control-of-the-people-the-progressive-model-making-useful-idiots-out-of-useless-idiots/ ]

- 2018 (gray shirt, March 24, 2018) - BEST

OBERGEFELL v. HODGES: The Very Real Tendency of Federal Courts to Render Unconstitutional Opinions

THOMAS JEFFERSON - with reading glasses

(Photo Credit – FreakingNews.com)

by Diane Rufino, March 26, 2018

We are all used to the accusations that a certain Executive Action is unconstitutional or a federal law is unconstitutional, and we are used to challenges to them in federal court. We remember how the progressive federal appellate courts of the 11th and 9th circuits struck down President Trump’s proposed travel ban as an unconstitutional exercise of discretion. And we here in North Carolina are still stunned and outraged at the 4th Circuit for usurping our state’s right to a democratic form of government (Article IV, Section 4 of the US Constitution) and our reserved powers under the 10th amendment when it struck down our duly-enacted Voter ID Law.

We all understand that unconstitutional actions by those branches must be recognized and addressed; they must be struck down and thus not enforceable.

What we don’t hear are accusations that certain Supreme Court, and other federal court decisions, are unconstitutional. The truth is that they, just like the actions of the other ranches, are capable of exceeding proper authority and presenting an abuse of power that amounts to federal tyranny.

Why do we just accept their decisions? Why is it that we simply tell ourselves and others: “Well, the Court has decided. It has handed down its opinion.” And then we surrender our protests to that decision, even though we KNOW it is an unconstitutional exercise of judicial power.

Thomas Jefferson recognized the potential of the federal judiciary for profound abuses of power even as early as 1801. In a letter he wrote to his friend, Adamantios Coray, on October 31, 1823, he warned: “At the establishment of our constitutions, 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.”

How do we know for sure that certain federal court opinions are unconstitutional? Sometimes the justices are truthful and tell us so in their dissenting opinions. And sometimes they explain in detail why it is so.

I wrote an article a few days ago about just such a case, the Obergefell v. Hodges case (2015) – the gay marriage decision. Four justices out of the nine wrote dissenting opinions explaining exactly why the majority opinion (5-4) was unconstitutional. So, instead of focusing on the majority opinion in a court decision, as I almost always do, in this article, I focus on the dissenting opinions.

I think it’s important for people to know – to understand – that federal court opinions are often incorrectly decided and moreover, are often decided by exercising power and discretion that they DO NOT HAVE.

The article, “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,” is posted on my blogsite:  https://forloveofgodandcountry.com/2018/03/23/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/

 

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]

Ignoring the Facts, Americans Still Believe They Live in a Free Country

FREEDOM

by Diane Rufino, March 22, 2018

How many times have you said to someone “We live in a free country?”  How many times have you commented “Thank God we live in a free country.”  How many times have you heard others, including our nation’s leaders and representatives, say “The United States is a free country.”

On the news we often hear commentators compare other countries to the United States, the premise being that we have a more free country. And how many times have you read in the news how the United States sets the example and is a beacon to the rest of the world because we are such a free nation.

Yes, we have freedoms. They are outlined in the Declaration of Independence and they are recognized and secured (supposedly) in the US Bill of Rights.  But that doesn’t necessarily define us as a “Free People.”  The real question is to what extend we are able to exercise those rights. That is the real measure of our freedom and our liberty.

But the reality is that the comment “We live in a free country” has become a soundbite, a cliché. We speak and hear it so often – indeed, for most of our lives we’ve heard it – that we believe it. We take it for granted that it is true.

We believe we have freedom in the marketplace and freedom over our personal and real property. But an honest assessment shows that there are so many regulations and so many taxes and fees and conditions and filings with respect to each that we truly do not have economic freedom or freedom with respect to our property (including our wages and other earned “income”).

So, are we a “Free Country.”

Let’s look at a screen shot of Americana right now, in 2018.  Populism has been on the rise here and as we are learning first-hand, it threatens freedom by pitting “us” against “them.” Take, for example, the Phillips v. Colorado Civil Rights Commission which is a case sitting with the Supreme Court right now. As many probably know, the case presents a butting of two important issues: The Right to Exercise One’s Religious Beliefs Even in Conduct in the Marketplace versus The Right Not to Be Discriminated Against in Public Accommodations (including goods and services). The fact that Religious Liberty, probably the most important of our rights as sought by those who settled and founded our country and one seemingly protected without conditions or limitations in the First Amendment to the US Constitution is under scrutiny to have both imposed by our highest court, is in and of itself an indicator of our freedom index. Next, look at the arbitrary nature of our tax system. Those who can be taxed to fund the government and all the many programs (most of which are unconstitutional) are taxed in every possible way, shape, and form. Property is taxed multiple times, over and over and over again with each transfer, and improvements require more taxation. Sums that can be taken out of a person’s paycheck WILL be taken out and although characterized to sound palatable to the American people, are simply various forms of taxation. All of these funds are used by the government to redistribute wealth and services; they are not intended to be a rightful, fair, or equal token to the government in return for the benefits the country provides. We believe we have an almost unlimited right to free speech, but today, that right falls away quickly when the audience includes an individual who is too fragile to hear a viewpoint that he or she does not agree with.  Free Speech today is, in reality, limited by feelings and a seriously low tolerance for opposing views, facts, or truth.

If Congress doesn’t do anything about the Affordable Care Act and the notion that the government must provide funding for healthcare for everyone and can regulate the healthcare profession, then we will officially be one of the countries of the world providing socialized medicine and healthcare. Ronald Reagan had warned about this back in 1961 and several Supreme Court justices warned of the same in 2012.  As Reagan noted: “The doctor begins to lose freedom. . . . First you decide that the doctor can have so many patients. They are equally divided among the various doctors by the government. But then doctors aren’t equally divided geographically. So a doctor decides he wants to practice in one town and the government has to say to him, you can’t live in that town. They already have enough doctors. You have to go someplace else. And from here it’s only a short step to dictating where he will go. . . . All of us can see what happens once you establish the precedent that the government can determine a man’s working place and his working methods, determine his employment. From here it’s a short step to all the rest of socialism, to determining his pay. And pretty soon your son won’t decide, when he’s in school, where he will go or what he will do for a living. He will wait for the government to tell him where he will go to work and what he will do.”  Interestingly, during President Harry S. Truman’s administration, it was proposed that the government establish a compulsory health insurance program for all people in the United States, which the American people, without reservation or serious debate, rejected. They rejected government healthcare (Hillarycare) during the Clinton administration, and they opposed it during the Obama administration. But popular opinion and public concern didn’t stop President Obama.

The snapshot of Americana now in 2018 isn’t nearly the snapshot many remember 30-40 years ago, and those who remember the 50’s and 60’s may hardly recognize the country we’ve become. We could speak freely, worship freely, and we could travel without having to put lots of money aside for toll roads and bridges. Fanily was still the institution we believed in, strived for, and worked hard to preserve. We may not have had a ton of luxury items or electronic devices, but we were happy and sociable and weren’t consumed with talk of race and diversity, and we didn’t see our communities rapidly change due to an uncontrolled immigration of Hispanics. We enjoyed an era of color-blindedness and for a time, we enjoyed economic prosperity. We were safe in our homes and communities, our parents had job security, we went to school to learn how to think (not to be taught what to think), and we all felt like we had a shot at the American Dream, if we were willing to be educated and work hard. Most parents were reluctant to accept government hand-outs because of the stigma of receiving something not earned. It was an era of respect because, quite frankly, most people earned it.

Again, the question is: Are we a Free country?

The fact is that we are not truly a free country anymore. A look at the various factors that affect the extent to which we can exercise our freedoms shows quite clearly that we are not a “Free Nation” but rather one that is only “mostly free.”  I don’t think that would have been good enough for our Founding Fathers.  I think they would be deeply disappointed in what we’ve allowed the government to become, for it is the government that is – and has been – responsible for most of the factors burdening and constraining our freedoms.

There are detailed studies, conducted by reputable organizations such as the Cato Institute, the Heritage Foundation, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom which assess the various factors that define the extent of a country’s personal and economic freedom. Using such analysis, they measure each country’s degree of freedom. These studies are called the Human Freedom Index and the Economic Freedom Index. The results of each of these does not bode particularly well for the United States or we as Americans.

 

Because freedom is inherently valuable and plays a role in human progress, it is worth measuring carefully and worth taking note of.

The Human Freedom Index looks at a broad range of factors to measure human freedom, which is defined as, and understand to mean, the absence of coercive constraint (that is, government, economic, and legal constraint).  In other words, a measure of human freedom is a measure of the extent of coercive constraint or restraint on a  person’s essential liberties, civil liberties, economic freedom, and property rights. Some refer to this as “negative freedom.” The Human Freedom Index uses 79 distinct indicators of personal and economic freedom – the two most generalized categories – in the following more specific areas:

  • Rule of Law (laws)
  • Security and Safety
  • Movement
  • Religion
  • Association, Assembly, and Civil Society
  • Expression and Information
  • Identity and Relationships
  • Size of Government
  • Legal System and Property Rights
  • Access to Sound Money
  • Freedom to Trade Internationally
  • Regulation of Credit, Labor, and Business

[For a complete look at the 79 factors used in the study:  https://object.cato.org/sites/cato.org/files/human-freedom-index-files/2017-human-freedom-index-2.pdf  Go to pp 15-19.  The ranking follows on pp. 19-23. This is the data compiled by the Cato Institute, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom]

The Index measures and ranks 159 countries.

According to the Human Freedom Index, the United States ranks only 24th with respect to “Personal Freedom” and 17th with respect to “Human Freedom” (a measure that includes all the areas above – personal, civil, economic, government and the rule of law, etc). The U.S. fell from 16th place in 2008 and 19th place in 2013 to 24th place for Personal Freedom, showing a troubling trend for our country and its people.

Ahead of the United States, in terms of Personal Freedom, are the countries (in order, #1-23): Norway, Finland, Austria, the Netherlands, Denmark, Switzerland, Luxembourg, Sweden, New Zealand, Germany, Australia, Belgium, Ireland, Canada, Portugal, Great Britain, Slovenia, Estonia, Iceland, Taiwan, the Czech Republic, Malta, and Japan.   [The Cato Institute, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom, https://object.cato.org/sites/cato.org/files/human-freedom-index-files/2017-human-freedom-index-2.pdf; pp. 6-7]

Technically, the United States is not considered “Free” but rather, is considered “Mostly Free.”  14.5% of the 159 countries analyzed have more personal freedom than the United States and 84.2% have less. These numbers hardly entitle us to brag that we lead the world in freedom and are the model for other nations to follow.

Economic freedom is a measure of success in the marketplace. Beyond this specific indication, economic freedom is, and has historically been, seen as an important indicator of personal freedom. There is a reason for that. A person or family that is self-sufficient is not dependent on others or the government. Dependency stifles freedom and limits options. Our nation’s most prosperous eras have been the ones that have provided Americans jobs, education, opportunities, and wealth. When America prospers, its people prosper. They are lifted out of poverty, sickness, and ignorance.

According to the Human Freedom Index, the United States ranks 11th with respect to “Economic Freedom.”  .  The countries that rank higher than us include (in order, #1-10): Hong Kong, Singapore, New Zealand, Switzerland, Ireland, Great Britain, Mauritius, Georgia, Australia, Estonia, and Canada. Actually, Canada is ties with the US.   [The Cato Institute, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom, https://object.cato.org/sites/cato.org/files/human-freedom-index-files/2017-human-freedom-index-2.pdf; pp. 6-7]

The Heritage Foundation, which conducted its own study of Economic Freedom, has the United States ranked 18th in the world, in 2018. The Heritage Foundation’s Index of Economic Freedom looks at 12 individual freedoms, from property rights to financial freedom, in 186 countries. The top-ranking countries, in order, are: Hong Kong, Singapore, New Zealand, Switzerland, Australia, and Ireland. These top 6 are considered “FREE,” according to the Heritage Foundation. The countries that follow (#7-17) are: Estonia, Great Britain, Canada, the United Arab Emirates, Ireland, Denmark, Taiwan, Luxembourg, Sweden, Georgia, and the Netherland. The countries that occupy the #7-34 positions (which includes the United States, at #18) are considered “MOSTLY FREE.”  [2018 Index of Economic Freedom, Heritage Foundation – https://www.heritage.org/index/ranking]

Although President Trump is working very hard to improve the situation in the United States with respect to our economic freedom, right now, our position is certainly nothing to brag about.

As mentioned above, with respect to “Human Freedom,” the United States ranks 17th. Again, the “Human Freedom” Index is a measure that includes all 79 distinct indicators among the areas of economic freedom, personal freedom, and civil liberties – the major ones, which are contained in our First Amendment: speech, religion, association, and assembly.  The countries that rank higher than the US include (in order, starting with the most free): Switzerland, Hong Kong, New Zealand, Ireland, Australia, Finland, Norway, Denmark, the Netherlands, Great Britain, Canada, Austria, Sweden, Estonia, Luxembourg, and Germany.  [The Cato Institute, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom, https://object.cato.org/sites/cato.org/files/human-freedom-index-files/2017-human-freedom-index-2.pdf; pp. 6-7]

“The declining performance of the United States, once considered the bastion of liberty, is worrisome,” said Ian Vasquez, director of the Cato Institute’s Center for Global Liberty and Prosperity and co-author of the study, commenting on its results. “We should all be concerned with the impact on liberty of the war on terror, the war on drugs, and the decline in the rule of law and economic liberty in the United States.”

I hope this article and the data provided convinces you that we, as Americans are not a free people and that our country, despite the talking points, is not really a free country. We are “mostly free,” which should never be a consolation that we are willing to settle with.  So next time you are filled with pride and patriotism and want so badly to sing the praises of the United States, please be sure to speak honestly of her.

Honesty is the first step in admitting there is a problem.

 

References:

Human Freedom Index 2017, Cato Institute, the Fraser Institute, and the Friedrich Naumann Foundation for Freedom (Full Report)  —  https://object.cato.org/sites/cato.org/files/human-freedom-index-files/2017-human-freedom-index-2.pdf

Country Profiles:  https://object.cato.org/sites/cato.org/files/human-freedom-index-files/2017-hfi-country-profiles-2.pdf

“The Human Freedom Index,” Cato Institute –   https://www.cato.org/human-freedom-index

2018 Economic Freedom Index, The Heritage Foundation –  https://www.heritage.org/index/ranking