4th of July: Reflections

4th of JULY

by Diane Rufino, July 4, 2018

Happy 4th of July!

We celebrate the 4th of July as our Independence Day but it’s really not the date that our country, comprised at the time of the 13 original colonies, became independent from Great Britain. The 4th of July is the date when the Second Continental Congress adopted the Declaration of Independence, which is a very significant date in our country’s path to independence. With the Declaration, the colonies were proclaiming to the world their intent to separate or secede from Britain and establish themselves as sovereign independent states. That would be their goal in fighting the British. A single-paragraph resolution was passed prior to July 4 which simply declares the colonies’ independence. That simple resolution accomplished the goal of officially declaring independence from Britain. But the Second Continental Congress wanted a more detailed version, articulating the reasons for seeking independence, in order to make its case soundly “to a candid world.” To that end, Thomas Jefferson was delegated the important task. The character of the independent colonies would depend on the words and ideals that Jefferson wrote. And so, on July 4, 1776, the Second Continental Congress adopted Jefferson’s grand Declaration of Independence.

The war with Britain began on April 19, 1775, with “the shot heard around the world” at Lexington. That was the date when the forces under Britain’s General Gage went looking to confiscate and destroy Boston’s arsenal of ammunition and thereby render them unable to defend themselves. But for the first year, the colonies, through the First Continental Congress, hoped to end hostilities and resume a good relationship with their mother country. And so it pursued a course of negotiations. But, as Patrick Henry emphasized in his famous “Give Me Liberty or Give Me Death!” speech: “We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, how can we indulge the fond hope of peace and reconciliation? There is no longer any room for hope. If we wish to be free, if we mean to preserve inviolate those inestimable privileges for which we have been so long contending, if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight!”

And so the colonies came together. It was no longer a war only involving Massachusetts. If Britain could exercise tyrannical rule over the citizens of Boston and the rest of the Commonwealth, it would surely do the same to the other colonies. In the second year of the war, the Second Continental Congress conducted and managed the war as one for independence.

The Revolutionary War would end five years later, on October 19, 1861, when General Cornwallis surrendered to General George Washington at Yorktown. The war would officially be over, and the colonies officially recognized by Britain as 13 independent sovereigns on September 3, 1783 when the Treaty of Paris was signed by representatives of King George III and by Benjamin Franklin, John Adams, John Jay, and David Hartley as representatives for the colonies.

The Treaty of Paris declared the intention of both parties to “forget all past misunderstandings and differences” and “secure to both perpetual peace and harmony.” It went on to state:

“Britain acknowledges the United States (New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia) to be free, sovereign, and independent states, and that the British Crown and all heirs and successors relinquish claims to the Government, property, and territorial rights of the same, and every part thereof…..”

The revolutionary and magnificent principles articulated in the Declaration not only laid the political and philosophical foundation of our country but it changed the course of the entire world. Mankind has been eternally better off for those principles. But the sad truth is that most of the ideals set forth in the Declaration have been rejected by the very history of our country. The Declaration will continue to mean very little until we as a country reject and condemn the actions of Abraham Lincoln when he invaded, coerced, and subjugated the southern states back into the Union when they sought independence. And the Declaration will continue to mean very little until we reject the notion that our government has the right and primary purpose of seeking its own power and permanent existence rather than existing primarily to secure the fundamental rights of the individual (but subject to being altered or abolished when it ceases to serve that goal and instead frustrates the exercise of those rights).

But Jefferson’s Declaration of Independence will always stand as a testament to the best and most noble intentions of man in establishing an ordered society predicated on the inalienable rights of the individual.

HAPPY 4th of JULY!

 

***  I apologize for posting this article late, but my computer crashed and burned, and I had to research and purchase another.

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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]

Thomas Jefferson: Leave His Legacy Alone

THOMAS JEFFERSON - with sunglasses

by Diane Rufino, Feb. 22, 2018

Thomas Jefferson is probably one of our greatest Founding Fathers, if not the greatest of them all. I think I’m going to be triggered if one other person demonizes him and demeans his legacy because of the fact that he owned slaves. Slavery was not only legal at that time, even constitutionally-protected, but it was a way of life all over the globe.

Jefferson’s presidency lasted from 1801-1808; he was only our young nation’s third president. His two terms were marked by discord with Great Britain, threats of secession by the New England states, an overly-ambitious Supreme Court, and he passed away on July 4, 1826. During that time, slavery was used by the great world powers in their island colonies. In 1815, we see that a gradual abolition of the slave trade began, mostly thru treaty agreement. In 1834, Great Britain, the Slavery Abolition Act went into effect, abolishing slavery throughout its kingdom (the British Empire) – not outright, but on a gradual basis over the following six years. Jefferson had been dead many years before the countries of the world took action to end the abdominal institution.

The sins of the entire world shouldn’t become Jefferson’s original.

Jefferson gave us something extraordinary. He wrote the Declaration of Independence, outlining a system of government for our newly-independent states that expressly rejected the British model. Under the British model, Kings have the absolute right to govern their subjects because of a divine right.  In the American States, and then the united States, according to Jefferson, the People have an absolute right to govern themselves because of a natural right.

And yes, when he wrote “All Men are created equal” he meant it to be without regard to race. Jefferson had hoped the new Union created by the Constitution would not recognize slavery as a legal institution.

Yet his contributions went far beyond the Declaration. He convinced James Madison that a Bill of Rights was absolutely necessary and that every freedom-loving individual is entitled to a Bill of Rights to set limits on the exercise of government. He fought long and hard for Freedom of Religion, for States’ Rights, and for a limited federal government.

People who don’t understand the significance of the words of the Declaration and who don’t see that Jefferson gave us something profoundly transformational, should simply thank him and say nothing else. The only reason we still have our freedoms and liberties is because every once and awhile our country has a moment of clarity and tries to get back to the principles Jefferson devoted his life to.

Jefferson has earned our unquestioned and undying gratitude. Monuments to him remind us of that great gems he gave us. Only the ignorant and the dissenters among us see only a slaveholder. We visit Monticello to learn more about him and his life and what inspired his lifelong commitment to service and to the direction of the great American experiment; we go there to see his vast book collection and the great volumes of his correspondence. We don’t go there to learn where his housekeepers slept or how meals were prepared or laundry done for him by his slaves.

I am not trying to demean anyone or demean anyone’s position, and I’m certainly not trying to insinuate that Jefferson was a God or a flawless individual. My point is that great men should be celebrated for their meaningful contributions. Our lives today are better for them and the lives of millions around the world are uplifted because of them. We don’t demonize Abraham Lincoln and demean the role he played in re-uniting the Union, even though we know the reason he pledged to stop the spread of slavery into the West was because he wanted those states to be a land for whites only. We don’t demonize President LBJ and demean his contribution to African-Americans when he signed the Civil Rights Act and Voting Rights Act into law, even though we know he was the most vile of racists and routinely referred to African-Americans using the “N” word.  We don’t demonize Mohammed Ali and demean his title as history’s greatest boxer, even though for the first half of his life he was an unabashed bigot and racial separatist. We don’t demonize Dr. Martin Luther King Jr because he cheated on his wife yet claiming the title of ‘reverend.’ We don’t demonize George Washington or demean his role as the Father of our County even though he owned slaves. And we don’t demonize Albert Einstein and reject his theory of relativity because he married his cousin.

Almost every human being is flawed in one way or another. And every important Founding Father can certainly be accused of owning slaves; My goodness… Presidents of the United States owned slaves up until the year 1849.

The insanity needs to stop. What we need to do is take MORE time to learn about this great men and their lives and contributions and NOT vilify them so that we end up spending less time studying them.

The English Roots of American Liberty

MAGNA CARTA - King John signing

by DIane Rufino, January 20, 2018

From the Declaration and Resolves (petition to King Charles listing the colonies’ grievances against the King and Parliament), the Declaration of Independence, to the Bill of Rights / Declaration of Rights adopted by the individual states, to the US Constitution, and to the US Bill of Rights, the Founding Fathers looked to English history for the words and templates to navigate the colonies towards independence and then into a republic. They reflected on the abuses of the Kings and the compacts demanded by the people to check those abuses, as well as the Enlightenment era philosophy on government in building a lasting republic. It is said that our Founding Fathers were wise and extremely well-read, but moreso, they were keenly aware of England’s history, which was, of course, also the history of the American colonies.

The colonists certainly embraced the liberty they found in the American colonies and the chance they had to self-govern as they saw fit. They worshipped according to their conscience, they engaged in trade freely, and they established their own colonial governments. But then they began to see that new-found liberty in jeopardy. The historic abuses of the English monarchy on its subjects now turned to the colonies. The colonists were taxed without their representation in Parliament (a right listed in the Magna Carta and English Bill of Rights of 1689), their trade interfered with (Tea Act), their colonial assemblies suspended (violation of their colonial charters), they had standing armies kept among them (in violation of the English Bill of Rights), they were forced to quarter troops (in violation of the Petition of Right of 1628 and English Bill of Rights), and their firearms and ammunition were confiscated (in violation of the English Bill of Rights). And when they protested and remonstrated these violations of their rights as English subjects, as those of centuries earlier had done, King Charles III ignored and mocked them. To the King, the colonists were crude, almost laughable in their simpler ways. He accused them of acting like petulant children and essentially being bothersome. He did not answer their written complaints, nor was swayed when they pleaded to him, “as loyal subjects,” to please intervene on their behalf to Parliament (for such things as the Intolerable Acts). By 1774, the King had had enough of them and accused them of being in active rebellion against Great Britain. All the colonists wanted was to have their rights respected. [Watch the DVD Set “Liberty – The American Revolution” (PBS) to feel the frustration the colonists felt in the years leading up to the American Revolution].

The question was this: How would the colonists respond?

Well, we know how they responded. Looking at the totality of the situation (“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States…”), the colonists, assembled in the Second Continental Congress, felt it had no other meaningful course but to seek its independence. In asserting what they believed was their natural right of self-determination and right of self-governance, they took a cue from their English roots (the Grand Remonstrance of 1640) and set forth a list of grievances against the King. In the Declaration of Independence, they listed 27 grievances – abuses of their rights – which, as the colonies declared, justified their separation from Great Britain.

When the fighting began the colonies weren’t seeking their independence; they were merely rebelling against tyranny. But North Carolina and then Virginia, and then others, began to call for independence, and on July 2, 1776, the resolution declaring independence was adopted and on July 4, Jefferson’s formal Declaration was issued – “to a candid world. The rebellion turned into a war for independence. Luckily, trust in George Washington paid off and friendship with France paid off as well. After our victory at Saratoga, France sent troops and its naval forces. British General Cornwallis surrendered at Yorktown, VA on October 19, 1781 and on September 3, 1783, representatives of King George III of Great Britain and representatives of the United States of America signed the Treaty of Paris to officially end the American Revolutionary War. Article I of the Treaty read: “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states…” The colonies were free.

But then next question was perhaps more important: How would they secure the liberty and individual rights they had just fought for? What kind of government system would best suit that goal?

Luckily our Founding Fathers were students of history and philosophy. They studied the Greek and Roman republics and knew what made them great and what led to their demise. They knew the history of England – a monarchy – and knew that although the great charters of liberty were written by the English to limit the conduct of the King and then to include Parliament, they also knew that those protections often went unnoticed. There were several attempts in England’s history to limit (forever) the rights of kings to place themselves above the law, but in some cases, the king took the “Divine Right of Kings” doctrine far too seriously. The Divine Right of Kings was the political/ religious doctrine in England that asserted that a monarch is subject to no earthly authority, deriving the right to rule directly from the will of God. Indeed, the history of England was a series of repeated events – abuses of the King over his subjects followed by a charter or petition demanding that their rights be acknowledged and that the King recognize limits to his power, followed by periods where the King or Kings ignored the charter/petition and subjects were again abused, followed by another petition, etc. For example, King John (1199-1216) signed the Magna Carta in 1215 after his barons took up arms against him, but almost immediately, he broke those promises. In 1928, Parliament presented King Charles I with the Petition of Right, complaining of a series of breaches of law and the Great Charter (Magna Carta) he had committed. The violations were of four general types – unfair and illegal taxation, as well as imposing taxes without the action of Parliament, many due process violations, including imprisonment without cause, quartering of soldiers on subjects, and imposing martial law in peacetime. The remainder of his reign would be marked with such extreme abuses that he would eventually be brought to trial and executed. James II, his son, would be another abusive king. With James II, the people (and Parliament) had had finally enough. He was removed by a bloodless revolution and the new King and Queen, William and Mary (Mary being James II’s daughter) signed the English Bill of Rights in 1689. Drafted by Parliament, the Bill of Rights officially set limits to the right of kings to put themselves above the law. The statute which offered the throne to William and Mary legally conditioned their rule on signing and respecting it. And subsequent kings would thus be limited as well.

All of our Founding Fathers knew that history very well. Again, England’s history was the history of the American colonies. But it was, after all, a monarchy. And a monarchy, as shown, was incapable of truly securing the inalienable rights of the individual. A democratic form of government would work either. True democracy is mob rule. It is always a rule by the majority. It could easily be tyranny by the majority.

In drafting the Constitution, which created our system of government here in the United States, our founders decided the best form of government would be a republic. Their study of history taught them that. As James Madison, author of the Constitution, wrote in Federalist No. 10: “Hence it is that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and in general have been as short in their lives as they have been violent in their deaths … A republic, by which I mean a government in which a scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.”

Article IV Section 4, of the Constitution: “The United States shall guarantee to every State in this Union a Republican Form of government … ”

At the Philadelphia Convention in 1787, the task of the delegates was to design the new republic as wisely as possible. like what Dr. Joe Wolverton II wrote in a 2004 article for The New American: “They believed they could find the key to inoculating America against the diseases that infected and destroyed past societies. Indeed, it has been said that the Founders were coroners examining the lifeless bodies of the republics and democracies of the past, in order to avoid succumbing to the maladies that shortened their lives.”

The Constitution was signed by the delegates on September 17, 1787 and then it was sent to each state to be ratified or rejected. Several of the delegates were unhappy with the final draft because it did not include a Bill of Rights and some, including the powerful George Mason from Virginia, promised to try to defeat its ratification in the state conventions. (Patrick Henry planned to help Mason do so). Thomas Jefferson, the author of the Declaration of Independence, believed strongly that a Bill of Rights needed to be added, but Madison, author of the Constitution, did not. Jefferson wrote: “A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” States like Virginia and North Carolina and Rhode Island would not ratify unless a Bill of Rights was added, and New York was up in the air. Although it may have been likely that 9 states (as required by Article VII) would have ratified so that the Constitution would have done into effect, the states couldn’t imagine a union without the large powerful states of VA, NY, and NC. And so a deal was made with Madison at the VA Ratifying Convention. He would submit a Bill of Rights as amendments to the Constitution in the first session of the first US Congress. Madison was an honorable man. The rest is history.

Before the deal was made, however, Patrick Henry got up before the Convention to make the case that a Bill of Rights was necessary to secure the blessings of liberty from a government that (as history has always shown) will eventually become too powerful. He spoke these words: “Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take everything else!….. I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American.”

Madison introduced his proposed amendments to the Constitution (a Bill of Rights) to Congress on June 8, 1789, and after a committee put them in final form and Congress adopted them, they were sent to the states on September 25 for ratification. Out of the twelve proposed amendments, the states ratified ten. There are approximately 26 individual rights identified in the Bill of Rights (excluding the unenumerated possibilities in the Ninth Amendment). Of those 26 individual rights, 9 can be traced back to Magna Carta, 7 can be traced to the English Petition of Rights of 1628, and 6 can be traced to the English Bill of Rights of 1689.

I used to think our Founders were divinely inspired to write some of the documents that they wrote….. the words, the themes, the ballsy language. But when you go back and study England’s illustrious history and you read the great charters and documents of liberty – the 1100 Charter of Liberties, the Magna Carta (1215), the Petition of Rights (1628), the Grand Remonstrance (1641), and the English Bill of Rights of 1689 – you realize that our Founders had all the templates they needed. In many cases, they followed in the very footsteps of their forefathers – English subjects – who petitioned every hundred years or more for their rights and for the King to limit his jurisdiction over their lives. For example, the Grand Remonstrance listed a series of grievances against Charles I, from the beginning of his reign, explaining why he needed to answer for his actions. In drafting the Declarations & Resolves of Oct. 14, 1774 (series of petitions and resolutions to King Charles I and Parliament in response to the Intolerable Acts), the First Continental Congress adopted the same petition formats that the English used to their King to petition for the rights that were being violated. In drafting the formal Declaration of Independence, Thomas Jefferson used the same format in order to condemn King Charles III and to make the case to a candid world why the people of the American colonies were seeking their political and legal separation from Great Britain. And so history lessons like this are so important because they serve to remind us that our system rests on a very distinguished history of standing up for liberty against tyranny and that the principles embedded in our documents are ones designed to withstand the abuses of those in power, in any branch. And that is why it is so important that those principles should not be taken for granted, maligned just because our fore-fathers were products of another era, or happened to own slaves or represented social norms of the day or happened to sneeze the wrong way, or “legislated” away from the bench by activist judges. Charles I was a miserable, ambitious King who, perhaps more than any other King of England, embraced the notion of the Divine Right of Kings and hid behind the artificial status it created. He quarreled with Parliament (the people’s body established by the Magna Carta to give them representation when it came to taxation) over taxes. He wanted more and more to finance his endless wars. When Parliament wouldn’t give him the funds he demanded, he merely dissolved the body. He did so three times from 1625-1629. When he dissolved Parliament in 1629, he resolved to rule alone and to get the money he needed. And so he raised revenue through non-Parliamentary means – including Ship Money (taxing those who lived along the coast). Most of these things helped to lead to his demise, which followed after he waged a civil war on Parliament itself, which he lost. Charles was tried, convicted, and executed for high treason by (a rump) Parliament in January 1649. He was beheaded. I point to Charles I because he was so abusive and dismissive of the rights of the people that the damage he did signaled the end of British system. After he was executed, Oliver Cromwell served as Lord Protector over England until his death in 1658. The monarchy was restored two years later, at which time, Charles II took the throne. He ruled until 1685 and when he died, his brother James II took the throne. He was deposed less than 3 years later. William and Mary were offered the throne and England got an official Bill of Rights at their coronation.

But one good thing came out of Charles’ reign. He cracked down quite heavily on the Puritans in England, and as a result, they emigrated (ultimately) to New England to found colonies based on religious liberty and eventually to establish the commonwealth of Massachusetts. The history of England is also one of religious tyranny and persecution, and no doubt provided the passion that certain Founders, such as Thomas Jefferson, had to secure religious freedom in the colonies.

England’s history is vital to our education because in her 600-year-or-so history, her people have stood up for their rights – rights they believed were fundamental and essential to their humanity and dignity – and in the end, their petitions, once merely requesting for the recognition of certain rights, became a Bill of Rights (1689), officially recognizing essential rights belonging to the individual that government was obligated to respect. While England does not have an official Constitution, per se, it considers a group of documents (including the English Bill of Rights) as being its “constitution” or governing document. But those documents, which represented the plight of the English for their rights to be free and to be free from government made it to the minds of our American Founders who then incorporated it into our nation’s founding documents. Our founding documents are superior to England’s because in this country, there is an “official” Constitution and an “official” Bill of Rights and both are predicated on something the English system is not – that government power originates from the individual. Those documents memorialize not only the formal recognition of inalienable individual rights, but they set important limits and boundaries on government. If you don’t think the English system of protest and petition didn’t work and if you don’t think it SHOULD be the model we embrace here – consider this: Each time the English people petitioned for their rights, those rights were enlarged, as mentioned above. Also consider this: The ability to have and bear arms originated as a “duty” in England, under the Militia laws. But after many years of the Crown confiscating guns and leaving England’s subjects undefended and vulnerable in the face of despotic Kings (willing to arrest and imprison them merely for political reasons or belonging to the wrong religion), that duty became a “right” in the English Bill of Rights. We have our Right to Have and Bear Arms (Second Amendment) because of the will and determination of the English people.

References:

“English and Colonial Roots of the US Bill of Rights – http://teachingamericanhistory.org/bor/roots-chart/

Virginia Ratifying Convention, Thursday, June 5, 1788 – http://www.constitution.org/rc/rat_va_04.htm

Federalist No. 6 (Alexander Hamilton), Avalon Project (Yale Law School) – http://avalon.law.yale.edu/18th_century/fed06.asp

“Liberty – The American Revolution” (3 disc, DVD set), PBS – https://shop.pbs.org/

The Petition of Right of 1628 – http://www.constitution.org/eng/petright.htm

The Grand Remonstrance of 1640 – http://www.constitution.org/eng/conpur043.htm

The English Bill of Rights of 1689 – http://avalon.law.yale.edu/17th_century/england.asp

Dr. Joe Wolverton II, “The Founding Fathers & the Classics,” The New American, September 20, 2004. Referenced at: https://21stcenturycicero.wordpress.com/tyrrany/the-founding-fathers-the-classics/

QUESTION: Was – Is – Secession Legal?

SECESSION - Map of North America after Confederacy was formed

by Diane Rufino, but based in large part on Leonard “Mike” Scruggs book THE UN-CIVIL WAR, January 19. 2018

On July 4, 1776, thirteen British colonies announced their secession from Great Britain and declared to the world their just reasons: “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the Earth the separate and equal station to which the Laws of Nature and Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to separate.” (paragraph 1 of the Declaration of Independence)

The Declaration of Independence (second paragraph) goes on to say: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. –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….”

The Declaration then goes o to list numerous grievances against the British Crown and Parliament. Most of these have to do with the British Crown and Parliament usurping the powers of the colonial legislatures, but mention is made of the King keeping troops among the colonists in times of peace, quartering British troops, cutting off colonial trade with the rest of the world, taxing the colonists without their consent (representation), depriving colonists the benefits of trial by jury, arbitrarily dissolving colonial charters, inciting insurrection against the colonies (including among the unfriendly Indian tribes), and more. (Ironically, the one thing not mentioned among the list of 27 grievances was the disarming of the colonists and confiscation of their arms and ammunition – the one thing that inspired Patrick Henry to submit resolutions he’d written to the Virginia colonial legislature to build and train a militia from each county; “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?….. The war is inevitable–and let it come! I repeat it, sir, let it come. The war has actually begun. The next gale that sweeps from the north will bring to our ears the clash of resounding arms. Our brethren are already in the field. Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?  I know not what course others may take; but as for me, give me liberty or give me death!”)  After the listing of the specific grievances, the Declaration emphasized that neither the King nor Parliament would listen to their complaints and pleas for relief. “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

In the closing paragraph, the signers declare that the colonies are “Free and Independent States.” This paragraph also contains the words “appealing to the Supreme Judge of the World” and “with firm Reliance on the Protection of divine Providence.”  Note that the United States of America were not formed into a single national state, but a confederation of independent and sovereign states.

Previous to the Declaration of Independence, both North Carolina (May 20, 1775) and Virginia (early 1776) had already declared their independence from Great Britain. North Carolina took the lead in calling for independence from Great Britain, and her state flag reflects the two historic dates on which she did so – May 20, 1775 and April 12, 1776. On May 20, 1775, a Charlotte government committee drafted the Mecklenburg Resolves which declared the residents of Mecklenburg County, NC independent of Great Britain:

Resolved, That we the citizens of Mecklenburg county, do hereby dissolve the political bands which have connected us to the Mother Country, and hereby absolve ourselves from all allegiance to the British Crown, and abjure all political connection, contract, or association, with that nation, who have wantonly trampled on our rights and liberties — and inhumanly shed the innocent blood of American patriots at Lexington.

Resolved, That we do hereby declare ourselves a free and independent people, are, and of right ought to be, a sovereign and self–governing Association, under the control of no power other than that of our God and the General Government of the Congress; to the maintenance of which independence, we solemnly pledge to each other, our mutual co-operation, our lives, our fortunes, and our most sacred honor.

Resolved, That as we now acknowledge the existence and control of no law or legal officer, civil or military, within this country, we do hereby ordain and adopt, as a rule of life, all, each and every of our former laws, wherein, nevertheless, the Crown of Great Britain never can be considered as holding rights, privileges, immunities, or authority therein.

On May 31, the Committee put the document in final form and adopted it. The updated document announced that all the colonies were independent of Great Britain:  “Whereas by an Address presented to his Majesty by both Houses of Parliament in February last, the American Colonies are declared to be in a State of actual Rebellion, we conceive that all Laws and Commissions confirmed by, or derived from the Authority of the King or Parliament, are annulled and vacated, and the former civil Constitution of these Colonies for the present wholly suspended. To provide in some Degree for the Exigencies of the County in the present alarming Period, we deem it proper and necessary to pass the following Resolves:  (1) That all Commissions, civil and military, heretofore granted by the Crown, to be exercised in these Colonies, are null and void, and the Constitution of each particular Colony wholly suspended……….”

The Resolves were delivered to the North Carolina delegation meeting at the Continental Congress with the hope that the entire Congress would vote and adopt it. The Congress felt the time was not right and did not take the matter up.

On April 12, 1776, the Fourth Provincial Congress, meeting in Halifax County, adopted the “Halifax Resolves,” which gave North Carolina’s delegates to the Continental Congress the authority to vote for independence. It was the first state to give such authority to its delegates.

On May 4, 1776, the colony of Rhode Island declared herself independent of Great Britain, and in late May – June, the Fifth Virginia Convention passed a series of resolutions rejecting all aspects of British authority and establishing a new form of independent government for the Commonwealth of Virginia. Richard Henry Lee, of Virginia, then urged the Continental Congress to follow Virginia’s (and North Carolina’s) lead.

On June 7, 1776, Lee introduced a resolution (the Lee Resolution) to the Second Continental Congress in Philadelphia declaring independence, and John Adams seconded the motion.

Lee’s resolution declared “That these United Colonies are, and of right out to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; that measures should be immediately taken for procuring the assistance of foreign powers, and a Confederation be formed to bind the colonies more closely together.”

The Continental Congress adopted the resolution, finally declaring independence for the 13 colonies, on July 2, but this day has been largely forgotten in favor of July 4, when the “formal” Declaration of Independence, written by Thomas Jefferson, was adopted.

Clearly, the idea that a people could separate from a government that did not serve them, or in the worst case, had become tyrannical and abusive, was something the colonists believed was a natural right.

The right of self-determination for people seeking independence is firmly established in international law. With US backing, Panama seceded from Columbia in 1903. Norway seceded from Sweden in 1905. In the United States, the right of self-determination and therefore secession is supported by the precedence of the Declaration of Independence which declared our own secession from Great Britain.

While the Declaration of Independence is of immense importance as a founding document, it is the Constitution of 1787 and the Bill of Rights ratified in 1791 that are the official founding documents. The Constitution was made official by the approval of the people of each state acting independently in convention, not by the people of the United States in general. Nor did these states surrender their sovereignty to the United States. Only limited government powers were delegated to the Federal Government and every state reserved the right to withdraw these powers. In fact, three states – Rhode Island, Virginia, and New York – specifically stated in their ratifications that they reserved the right to withdraw. Other states had less strongly-worded reservations, but no state would have ratified the Constitution if they believed that in doing so they would be surrendering their newly-won independence.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

As demonstrated by the ratification documents of New York, Rhode Island and Virginia, they made it explicit that if the federal government perverted the delegated rights, they had the right to resume those rights. In fact, when the Union was being formed, where the states created the federal government, every state thought they had a right to secede, otherwise there would not have been a Union.

It was to guarantee the sovereignty of the states that the Ninth and Tenth Amendments were added to the Bill of Rights. The Tenth Amendment is a particularly straightforward restatement of the federal nature of the government established by the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Since the Constitution was ratified by sovereign states who desired to retain their sovereignty, the document is classified as a social compact. In essence, it is a contract and thereby its legality is guided by contract law, one of the oldest areas of law. The Constitution is a compact – a contract – between the individual sovereign states, which are the parties, to create the federal government (the creature, or if likening the compact to agency law, the government would be the agent) in order to carry out certain common functions for the states in order that the Union itself could be successful. In the case of Chisholm v. State of Georgia (1793), the Supreme Court expressly declared that the US Constitution is a compact. The right of withdrawal or secession is inherent in the basic document (ie, the right of secession “supersedes” the Constitution) and the Ninth and Tenth Amendments further establish it as a right retained or reserved to each state. It is the option of each state, not the federal government (merely the creature or agent), as to whether it shall remain in the Union or whether it will withdraw. The right of secession was almost universally accepted until Lincoln came up with a new theory of the Constitution – based on a treatise on the Constitution, Commentaries on the Constitution of the United States, written in 1833 by then Supreme Court associate Justice Joseph Story. [It should be noted that Story’s treatise was highly criticized by leading constitutional experts of the day – including Henry St. George Tucker, Sr., John Randolph Tucker, Abel Parker Upshur, James Kent, and John C. Calhoun. Calhoun was revered as an expert on the Constitution and perhaps even more “Jeffersonian” than Jefferson himself.]

New Hampshire’s constitution of 1792 contains very strong words reserving its sovereign powers as a state. In 1798, Thomas Jefferson and James Madison circulated the Kentucky and Virginia Resolutions among the states. These resolutions strongly supported the Doctrine of States Rights and thus also the right of secession. Together these resolutions became known as the “Principles of ’98.”

The Kentucky Resolution, the work of Thomas Jefferson, asserted States’ Rights in very strong terms: “If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy….”  (Kentucky Resolutions or Kentucky Resolves of 1799)

The Virginia Resolution, the work of James Madison, asserted States Rights also in very strong terms; perhaps stronger: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to Interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”  (Virginia Resolutions or Virginia Resolves of 1798)

The doctrines of Nullification, Interposition, and Secession are all rights reserved to the states under Natural Law (the Law of Nature and God’s Law) and by the US Constitution (both implicitly by the limited nature of the delegations of power to the federal government, and expressly by the Tenth Amendment). Furthermore, they are remedies available under contract theory (compact law).

None of the states disagreed with the “Principles of ‘98” (which, by the way, were articulated to resist the unconstitutional Alien & Sedition Acts, signed into law by President John Adams, which were gross violations of several of the Bill of Rights, but most notably the First Amendment).

The New England states threatened secession on five occasions: (1) In 1803 because they feared the Louisiana Purchase would dilute their political power; (2) In 1807 because the Embargo Act was unfavorable to their commerce; (3) In 1812, over the admission of Louisiana as a state; (4) In 1814 (the Hartford Convention) because of the War of 1812; and (5) In 1814, over the annexation of Texas (which had seceded from Mexico). Additionally, many New England abolitionists favored secession because the Constitution allowed slavery.  From 1803 to 1845, anytime that New England felt that their political power or commercial power might suffer, they threatened secession. Yet when the Southern states did the same, a war was initiated to force them to remain in the Union against their wishes.

As early as 1825, the right of secession was taught at West Point. William Rawle’s View of the Constitution, which was used as a text at West Point in 1825 and 1826 (and thereafter as a reference), specifically taught that secession was a right of each state. Rawle was a friend of both George Washington and Benjamin Franklin and his 1825 text was highly respected and used at many colleges. A subsequent text by James Kent maintained the same position and was used at West Point until the end of the war in 1865. Several Union and Confederate generals were at West Point during the time Rawle’s text was used. Rawle even spelled out the procedure for a state to secede, explaining: “The secession of a state from the Union depends on the will of the people of each state. The people alone… hold the power to alter their Constitution.”

The right of secession was very well-stated by none other than Congressman Abraham Lincoln himself in 1848: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world.”

That same year, Lincoln further stated: “Any people that can may revolutionized and make their own of so much territory as they inhabit.”

But in 1861, Lincoln adopted a view of secession more expedient to holding the Southern states in the Union against their will. He discovered the theory that Supreme Court associate Justice Joseph Story concocted in his 1833 Commentaries on the Constitution of the United States, asserting that there was an American nation in the minds of the people before the States were formed. This humbuggery had been strengthened by Daniel Webster’s eloquent but disingenuous and speeches to Congress, claiming that the Constitution was not a compact.

So, Lincoln characterized the orderly, democratic Secession Conventions of South Carolina and the Gulf States, conducted in accordance with Rawle’s treatise on the Constitution, and carried out step-by-step in the same manner as the states when they declared their independence from Great Britain and formed the United States of America, as a rebellion perpetrated by a small minority and proceeded on a path that every member of his Cabinet meant war.

As to the question of whether Secession is legal today, the answer is yes. Again, the right is an inherent and natural right, seared into our history by example (secession from Great Britain), implied by the very limited nature of the general government created by the Constitution and the limited powers delegated to it under that document, and expressly reserved to the states by the Tenth Amendment.  Lincoln’s government may have waged a war to somehow reclassify the nature of the conduct of the Southern states in 1860-61 (“rebellion” rather than secession) in order to force those states back into the Union, but its actions cannot change the fact that those states exercised a natural and inherent sovereign right. The Constitution was never amended to prohibit that right to a State and despite attempts to judicially remove it, as well requiring the Southern states to include such a prohibition in their amended state constitutions (in order for them to be “re-admitted” to the Union that Lincoln said they never left), such actions are merely exercises in futility; they are extra-constitutional actions that lack authority or power of enforcement. The right of a people of self-determination, as it applies to government, can never be legislated, decreed, or written away. It is an inalienable right, having its place among the other Laws of Nature and among God’s Law.

***  For an in-depth discussion on the topic of Social Compact, why the US Constitution is, in fact, a social compact, and the remedies naturally available to the parties of a compact (which in our case are the individual states), including the remedy of secession, please read by article “The Social Compact and Our Constitutional Republic,” which is the article preceding this one.

BOOK - The Un-Civil War (Mike Scruggs)

— This article is based, in good part, on Leonard “Mike” Scrugg’s book: THE UN-CIVIL WAR: SHATTERING THE HISTORICAL MYTHS (Chapter 6, Constitutional Issues and the Un-Civil War). The purpose of this article and the reason for relying so heavily on Mr. Scruggs’ book is to get the reader interested not only in the topic at hand but also to be motivated to purchase and read his most excellent book in its entirety and then to share the information with others!

References:

Leonard “Mike” Scrugg’s, THE UN-CIVIL WAR: SHATTERING THE HISTORICAL MYTHS (Chapter 6, Constitutional Issues and the Un-Civil War), 2011, Universal Media (Asheville, NC).

Walter Williams, “States Have a Historical Right to Secede,” Columbia Tribune, April 25, 2009. Referenced at: http://www.columbiatribune.com/02023ee6-5191-5fd7-85a8-b533bfab9c2e.html [The section on the Rhode Island, Virginia, and New York Resumption Clauses – included at the time that these states adopted the US Constitution – is taken entirely from Mr. Williams’ article]

The Social Compact and Our Constitutional Republic

CONSTITUTION - at the Philadalphia Convention

by Diane Rufino, Jan. 21, 2018 (first section only; other sections attributed to other authors)

I. INTRODUCTION

A Social Compact is an agreement, entered into by individuals, that creates some form of self-government and results in the formation of an organized society, the prime motive being the desire for protection and the performance of common functions to serve the community of individuals. To form an organized community, a surrender of some personal liberties is the trade-off.

Perhaps you may remember the Mayflower Compact from your days in grade school. You may remember that it was a document – you probably don’t remember what kind of document it was – that was drafted aboard the Mayflower, as it brought the Pilgrims to the shores of what would one day become Massachusetts. Well, the Mayflower Compact is actually quite significant. It was the first American document to establish a framework of self-government. It was perhaps the first the American Social Compact. The Compact was drafted by the Pilgrims as they sailed across the Atlantic and was signed on November 11, 1620 and became the governing document of Plymouth Colony.

I know that most people have never heard of the term “Social Compact” but I make the case here that this term is probably one of the most important terms to know and understand. The next American Revolution will be to wrestle power away from the federal government and to transfer it back to its rightful depositories, which are the States and the People themselves. The only way this will be possible is if the American people understand that the US Constitution is a social compact, was intended as such, was promoted as such, and was commonly referred to as such up until the end of the Civil War. All of the primary documents that explain the Constitution, refer to it, document its drafting, its adoption, and ratification characterize it as a “social compact.” Early Supreme Court decisions refer to it as a “social compact.” (See Chisholm v. Georgia, 1793; Calder v. Bull, 1798), and dozens of lower federal courts, as well as state courts, have done the same. When the colonies sought their independence from Great Britain, they articulated in the Declaration of Independence they believed that governments are products of social compacts (constitutions establish government authority, and set appropriate limits, all by the consent of the governed) and due to the “compact” or “contract” nature of that agreement, they had the right, under the Laws of Nature and God’s Law, to establish a new government, of their own design and suited to serve them accordingly (“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them….”)

Compact Theory, as will be discussed below, follows the same legal theories as contract law, which is one of the oldest areas of law. There are parties to a compact, there are assigned obligations and benefits, there are consequences for a breach, and there are remedies. In the case of the Constitution, the parties are the individual States. The government is NOT a party but is the creature – it being created by the Constitution. The federal government was “created” to serve the States – to perform those common functions that each state would have to perform alone but could be more efficient, more effective, and uniform, when performed for all. The federal government was created as an Agent for the States – against, to serve their interests, thus making it easy to form and remain together in the form of a Union (a “confederation” of sovereign states). Being the rightful parties to the compact (ie, the “contract”), the obligations and benefits are reserved to them only. The obligations are that each State delegate some their sovereign powers (listed in Article I) to the federal government for the good of the Union and respect that the federal government will govern supremely on those objects. And the benefits are those mentioned – the federal government would serve as the Agent, mainly providing safety and defense, dealing with foreign nations, ensuring regular commerce, and providing a common currency. A compact is a formal, and stable embodiment of the terms on which a group of people decide to live together in a community. It creates their government and represents the “consent of the governed.” The compact retains the same meaning and terms until the people agree to change it.

So, one benefit of a Social Compact is that the parties have a right and an expectation that the terms will remain the same. In the case of the Constitution, the government created is one of limited powers, with those powers expressly listed for each branch. All remaining government power is reserved to the States (both implied by the limited nature of the delegation of power and expressly by the Tenth Amendment). So when the federal government exceeds its powers under the Constitution and passes an unconstitutional law, establishes an unconstitutional policy, or renders an unconstitutional court “opinion,” the States, as the parties to the compact, have a RIGHT to ensure that the government exercises only those powers given it and to PREVENT such unconstitutional law, policy, or court opinion from being enforced on We the People. After all, when the government assumes powers not delegated to it, it naturally usurps them from their natural possessor, which is either the States or the People themselves.

James Madison explained this concept best, when he articulated the doctrines of Nullification and Interposition in his Virginia Resolves of 1798, which were written for the Virginia legislature in order to nullify the Alien & Sedition Acts, which were clearly unconstitutional, and prevent the residents of the state from being subject to them. The Virginia Resolves read: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” In his term “interpose,” he encompasses “nullification’ as well, which is the doctrine that says any law made without the proper authority (ie, an unconstitutional law) is automatically null and void and therefore unenforceable. Of course the federal government will never admit on its own that any of its actions are unconstitutional. It is up to the sovereign States to do that. In this manner, government can be kept in check.

It is Compact Theory that provides this level of protection against government tyranny for We the People.

Besides keeping the federal in check with regard to its rightful powers, States like South Carolina also believed it had the right to intervene when the government violated the basic nature and purpose of its being – to govern for the individual States equally; that is, not to operate government primarily for the benefit of certain States or certain regions over others.

When South Carolina, at the end of 1832, took strong action to oppose the high protective tariffs supported by Andrew Jackson’s administration, the Tariffs of Abomination (of 1828 and then 1832), which were exceedingly burdensome and crushing on the economy of the state, it looked to the compact nature of the Constitution for justification: On January 22, 1833, Senator John C. Calhoun, of South Carolina, submitted the following resolutions:—

Resolved, That the people of the several States composing these United States are united as parties to a constitutional compact, to which the people of each State acceded as a separate sovereign community, each binding itself by its own particular ratification; and that the union, of which the said compact is the bond, is a union between the States ratifying the same.

Resolved, That the people of the several States thus united by the constitutional compact, in forming that instrument, and in creating a general government to carry into effect the objects for which they were formed, delegated to that government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers, to be exercised by its own separate government; and that whenever the general government assumes the exercise of powers not delegated by the compact, its acts are unauthorized, and are of no effect; and that the same government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.

Resolved, That the assertions, that the people of these United States, taken collectively as individuals, are now, or ever have been, united on the principle of the social compact, and, as such, are now formed into one nation or people, or that they have ever been so united in any one stage of their political existence; that the people of the several States composing the Union have not, as members thereof, retained their sovereignty; that the allegiance of their citizens has been transferred to the general government; that they have parted with the right of punishing treason through their respective State governments; and that they have not the right of judging in the last resort as to the extent of the powers reserved, and of consequence of those delegated,—are not only without foundation in truth, but are contrary to the most certain and plain historical facts, and the clearest deductions of reason; and that all exercise of power on the part of the general government, or any of its departments, claiming authority from such erroneous assumptions, must of necessity be unconstitutional,—must tend, directly and inevitably, to subvert the sovereignty of the States, to destroy the federal character of the Union, and to rear on its ruins a consolidated government, without constitutional check or limitation, and which must necessarily terminate in the loss of liberty itself.”

South Carolina, in convention on November 24, 1832, adopted an Ordinance of Nullification which protested the constitutionality of the tariffs and stated that it would not provide the federal government with said tariff revenue. This would become the so-called Nullification Crisis of 1832. President Jackson threatened to invade South Carolina with federal troops and collect the revenue by force, but a compromise tariff bill was quickly reached in Congress which averted the crisis and which eventually lowered the tariff to pre-1828 levels. Nullification worked !! It prevented government abuse on the people and businesses of Virginia. (The tariff was discriminatory on southern states, particularly South Carolina and the Gulf States; the North did not pay tariffs because of the items that had duties attached; the North manufactured those items – that’s why the tariff was a “protective” tariff… it protected the industries and products of the North !!!!)

Another benefit of characterizing the Constitution as a Social Compact is that if the compact is violated, the State, as a party, has the option to resume its powers. Actually, it has the option of resuming those powers even if there is no violation, but merely because the compact is frustrating its “happiness.” We know the States viewed the Constitution as a compact when they debated it in their ratifying conventions, because all used that term. And we know they believed they had the inherent right to resume the powers delegated because three states, Virginia, New York, and Rhode Island, explicitly included Resumption Clauses in their ratification decisions. They reserved the right to withdraw from the compact. Other states had less strongly-worded reservations, but no state would have ratified the Constitution if they believed that in doing so they would be surrendering their newly-won independence.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

The most extreme benefit of a Social Compact is the right of a State, as a party, to secede from the compact.

In adopting her “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,” on December 24, 1860, the Palmetto State explained her right to do so based on the compact nature of the Constitution.

“The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.

And now the State of South Carolina having resumed her separate and equal place among nations, deems it due to herself, to the remaining United States of America, and to the nations of the world, that she should declare the immediate causes which have led to this act…….

The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.

If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On the 23d May , 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.

Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

In the present case, that fact is established with certainty. We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof.

The Constitution of the United States, in its fourth Article, provides as follows: ‘No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.’

This stipulation was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia, which now composes the States north of the Ohio River.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that ‘Government cannot endure permanently half slave, half free,’ and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.

The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.”    [For the full Declaration, go to: http://avalon.law.yale.edu/19th_century/csa_scarsec.asp ]

Note that South Carolina’s real issue with the federal government was the tariff issue; it was the immediate issue. Lincoln promised to support a new protective tariff (which Buchanan has just signed it in his waning days) which would elevate the tariff to its highest levels ever. But legally, the federal government has the authority under the Constitution to erect such tariffs. South Carolina agreed to that authority in adopting the document and joining the Union. It very well could not try to make a legal argument for secession based on its opposition to the high discriminatory tariff. But the slavery issue is a constitutional issue. And it represented an actual, palpable breach of the compact which would justify its withdrawal from the union.

In adopting the Constitution, the states understood that they would be free to leave the Union, as situations dictated. After all, they left the Union established by the Articles of Confederation to establish a new Union under the Constitution. But that Union was different and only those states that adopted would be members of that new Union and bound by the Constitution. Article VII states that 9 states needed to ratify the Constitution in order for it to go into effect.

So, to recap, the particular benefits of a Social Compact lie in the remedies it provides the parties should the compact be violated, or breached. The consequences for a breach of the compact are simple: If a State breaches, the others, acting alone, can decide whether to consider the compact broken which then would allow it to be relieved of its obligations (ie, the State would no longer be bound by the Constitution). If the federal government attempts to assume powers not delegated to it, the States have a right, even an obligation, to identify that unconstitutional act and prevent its enforcement.

And an extreme remedy is always available – the right of rescission. Rescission is the right of one of the parties to rescind or cancel the contract for cause. It is the right of a party, if there are many parties, to withdraw from the agreement. This is the remedy of secession. The abrogation, or cancellation of a contract, or withdrawal or secession from a compact, is a remedy designed to restore the parties to the positions they would have been in if no contract or compact had ever been formed. As explained above, once a State decides to secede, it resumes all the powers it had delegated away and resumes its natural station under the Laws of Nature. It is then free to establish a new form of government that suits is purposes. As to the remaining States, they are free to remain in the compact, which at that point would be a new Union. That Union is free to remain on the same terms and under the same conditions.

The Constitution was roundly understood and recognized as a Social Compact up until the years leading to the Civil War. Again, all our founding documents and primary documents explaining the Constitution and referring to it characterize it as a Social Compact. But something happened in the years when South Carolina started to become contentious with regards to the high protective tariffs. The protective tariffs had became a hallmark of the Whig Party platform and then the Republican Party platform. Leading Whig (House Speaker, then Senator) Henry Clay initiated a new government plan to help businesses. It was called the “American System” and included protective tariffs and internal improvements. The money raised by high protective tariffs would be used not only to fund the government (about 1/3 of the revenue), but it would also go to the North, for internal improvements to further industrialize those states. In other words, the protective tariffs, according to the South (and particularly South Carolina, led by Senator John C. Calhoun), were nothing more than a government scheme to plunder the wealth of the South and transfer it to the North for its benefit. When the government realized that South Carolina was not playing along smoothly, was bucking the system, and was threatening to even leave the Union over the tariff situation (perhaps other Southern States would follow suit), and they had just causes under compact theory, suddenly the notion of the Constitution as a Social Compact became a liability. All of a sudden, political leaders began asserting that the Constitution was not a Social Compact, including Senator Daniel Webster and then Abraham Lincoln himself. Lincoln came up with a new theory of the Constitution – based on a treatise on the Constitution, Commentaries on the Constitution of the United States, written in 1833 by then Supreme Court associate Justice Joseph Story. He would classify the Constitution as establishing a “perpetual Union” that the States had fully intended to create. [It should be noted that Story’s treatise was highly criticized by leading constitutional experts of the day – including Henry St. George Tucker, Sr., John Randolph Tucker, Abel Parker Upshur, James Kent, and John C. Calhoun. Calhoun was revered as an expert on the Constitution and perhaps even more “Jeffersonian” than Jefferson himself.] In 1833, after spending almost all of his life referring to the Constitution as a compact, leading politician and powerful orator (a “thundering” orator), Senator Webster took to the Senate floor and delivered a speech expressly denouncing the Constitution as a compact. [That speech, by the way, was given in response to the Resolutions introduced on Jan. 22 by Senator John Calhoun (shared earlier) to explain why South Carolina nullified the federal tariff].

It should be noted that years earlier, Senator Webster’s position was quite different: “But, sir, there is a compact, and no man pretends that the generation of today is not bound by the compacts of the fathers. A bargain broken on one side is a bargain broken on all; and the compact is binding upon the generation of today only if the other parties to the compact have kept their faith.” Works of Daniel Webster

If the Constitution is not characterized as a Social Compact, in total disregard of history and ignoring all of our historic documents, then we do not have the relationship between the government and the States, and the government and the People, as the States and our Founders intended. Liberty would not be safe. If is not a Social Compact, then the government is just one more group of people living in this broad general geographical territory. If we reject the status of the Constitution as a Social Compact, as liberals and progressives would like (because they favor a strong central government with plenary powers), then we must get used to the permanent notion that the federal government as the creature is more powerful than its creators. The powers “reserved to the States” would be usurped whenever the government deems it beneficial to do so. The powers surrendered to it by the States and by the People could not be resumed by them and the government would have total control over any object and over any individual or group it wishes. It would effectively mean the end to federalism – the only option left to limit the federal government. It would leave the States at the mercy of the intentions of DC politicians. The government would have a total monopoly over the meaning and scope of its powers (sorta like the monopoly it has now!) and our rights and the States’ rights would be exercised only at the good graces and designs of the federal government.

Lastly, if the Constitution is not characterized as a Social Compact, then the States do not have the remedies articulated earlier. Then the States truly have no option to secede and Lincoln’s Union will have become a reality – one that is perpetual. It will be perpetual because the government now has the right to seek its own longevity; under Compact theory, government only exists as long as it rightfully protects the rights of the individuals and serves them well.

II. DEFINITION & ORIGIN of the SOCIAL COMPACT (This section comes from: Martin Kelly, “The Social Compact,” ThoughtCo.)

The term “social contract” refers to the belief that the state exists only to serve the will of the people, who are the source of all political power enjoyed by the state. The people can choose to give or withhold this power. The idea of the social contract is one of the foundations of the American political system.

The term “social contract” can be found as far back as the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote his classic, Leviathan, which was his philosophical response to the English Civil War. In the book, he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power over others at any time. Hobbes’ theory was that the people mutually agreed to create a state, giving it only enough power to provide protection of their well-being. However, in Hobbes’ theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought.

Jean Jacques Rousseau and John Locke each took the social contract theory one step further. Rousseau wrote The Social Contract, or Principles of Political Right, in which he explained that the government is based on the idea of popular sovereignty. The essence of this idea is that the will of the people as a whole gives power and direction to the state. John Locke also based his political writings on the idea of the social contract. He stressed the role of the individual and the idea that in the ‘State of Nature,’ people are essentially free. However, they might decide to form a government to punish other individuals who go against the laws of nature and harm others.

It follows that if this government no longer protected each individual’s right to life, liberty, and property, then revolution was not just a right but an obligation.

The idea of the social contract had a huge impact on the Founding Fathers, especially Thomas Jefferson and James Madison. The U.S. Constitution itself starts with the three words, “We the people…” embodying this idea of popular sovereignty in the very beginning of this key document. Thus, government that is established by the free choice of its people is required to serve the people, who in the end have sovereignty, or supreme power to keep or get rid of that government.

III. THE SOCIAL COMPACT and CONSTITUTION REPUBLICS (This section comes entirely from the Constitution Society, 2007)

Between 1787 and 1791 the Framers of the U.S. Constitution established a system of government upon principles that had been discussed and partially implemented in many countries over the course of several centuries, but never before in such a pure and complete design, which we call a constitutional republic. Since then, the design has often been imitated, but important principles have often been ignored in those imitations, with the result that their governments fall short of being true republics or truly constitutional. Although these principles are discussed in civics books, the treatment of them there is often less than satisfactory. This section will attempt to remedy some of the deficiencies of those treatments.

The Social Contract and Government –

The fundamental basis for government and law in this system is the concept of the social contract, according to which human beings begin as individuals in a state of nature, and create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively.

The social contract is very simple. It has only two basic terms: (1) mutual defense of rights; and (2) mutual decision by deliberative assembly. There are no agents, no officials, that persist from one deliberative assembly to another. The duties of the social contract are militia. There may be customs that persist from assembly to assembly, such as customs for due notice, parliamentary procedure, judicial due process, and enforcement of court orders by militia. This second term could be called the constitution of society, but it precedes a constitution of government and should not be confused with it.

There is also a constitution of nature that precedes both the constitution of society and the constitution of government. It is also convenient to speak of a constitution of the dominion that follows the constitution of society and precedes the constitution of government. It arises after a society is created (by adopting the social contract), and after it acquires exclusive dominion over a well-defined territory. That is when we get things like a right to remain at and to return to one’s birthplace, which makes no sense for a society with no territory (such as nomads).

A constitution of government, such as the Constitution of 1787, is the next step in the development. It is to establish institutions, offices, procedures, duties, and structures that persist from one assembly to another that are not just customs. It is at that point that we begin to get things like laws, and paid agents and officials, whose jobs continue beyond transient assemblies. We also get taxes, standing armies, and professional law enforcers. Such pooled powers are generally exercised by delegating them to some members of the society to act as agents for the members of the society as a whole, and to do so within a framework of structure and procedures that is a government. No such government may exercise any powers not thus delegated to it, or do so in a way that is not consistent with established structures or procedures defined by a basic law which is called the constitution.

While it is possible in principle for such a constitution to consist entirely of a body of unwritten practices, traditions, court decisions, and long-established statutes, in practice no such basic order can be considered secure against confusion or corruption if it is not primarily based on a written document, which prescribes the structure, procedures, and delegated powers of government, and the retained rights of the people, and which is strictly interpreted according to the original intent of the framers.

Although in principle the procedures may allow for the direct adoption of legislation by vote of the people, this is both impractical and potentially dangerous, especially to the rights of minorities, so that it is generally best that most legislation require approval at some point in the legislative process by a deliberative assembly, a body of elected representatives rather than by direct popular vote, and that any such legislation be subject to judicial review, whereby legislation not consistent with the constitution can be voided. Such a form of government is called a republic, as distinct from a democracy, in which all legislation is adopted solely by direct popular vote. And if it operates under a well-designed constitution, it is a constitutional republic.

It is important that the deliberative assembly fairly represent all the competing interests of the people, so that the concerns of minorities can be weighed and not ignored. But fair representation is insufficient if deliberation is not effective in analyzing and anticipating all the consequences of any decisions that might be made. The consent of the majority should be necessary for action, but that consent should never be sufficient for action.

Origins of the Social Contract –

Critics of social contract theory argue that almost all persons grow up within an existing society, and therefore never have the choice of whether to enter into a social contract. Not having a choice, they say, makes any such contract void.

The original proponents of the social contract theory, John Locke, David Hume, and Jean-Jacques Rousseau, answered these critics, but not in a way that is entirely satisfactory. To understand how the social contract comes about, we need to look at the kinds of contract that prevail during each stage in the development of a human being in society.

Each of us begins life under the terms of a special kind of social contract called a filial contract, between a child and his parents, and by extension to his siblings. That contract is established at the moment of bonding between parents and child following birth, and the terms of the contract are that the child will provide the parents certain pleasures that come with parenthood, particularly the satisfaction of helping to form a happy and admirable adult, and support for the parents in their later years, and in turn receives their love, support, guidance, and protection during childhood.

Although a filial contract can exist in a family that is isolated from any larger society, when the parents join a society, they pool their rights and duties as parents with other members of that society, and thereby become agents of the larger society in the raising of their own children, and accountable to that larger society for doing so properly.

As a child grows, it encounters other members of the larger society, usually beginning with other children. Whenever any two or more individuals meet with the understanding and expectation that they will live together in harmony and not fight with one another using any available means, they are establishing a social contract among themselves. In most cases they will be contracting with persons who have already established such a contract with still other persons, so that the terms of the contract are not only to live in harmony with those in direct contact, but also with all those with whom each of the parties is already engaged in a social contract, and by extension, to all others that those are in a social contract with, and so on. In other words, the social contract is transitive: if a is in a social contract with b, and b with c, then a is in a social contract with c. In this way each of us is bound under a social contract with all the other members of the society, most of whom we have never met.

As a person makes the transition from childhood to adulthood, his obligations change to match his abilities, and the filial contract gives way to the larger social contract and obligations to larger communities at the local, provincial, national, and global levels.

Of course, the social contracts of several societies may not extend to one another, giving rise to tribes or nations, whose members are bound by social contract within their membership, but are in a state of nature with respect to one another. If that state of nature involves active conflict, whether at the individual, tribal, or national level, it is said to be a state of war.

Breaches of the Social Contract —

Although the situation of there never having been a social contract is a fairly simple one, the situation of either deceiving another into thinking there is a social contract between them, or of entering into a social contract and then violating its terms, can be much more complicated, and much of law and government is concerned with dealing with such situations.

In his treatment of the subject, Locke tended to emphasize those violations of the social contract that are so serious that the social contract is entirely broken and the parties enter a state of war in which anything is permitted, including killing the violator. Today we would tend to place violations on a scale of seriousness, only the most extreme of which would permit killing. Some would even go so far as to exclude killing for any transgression, no matter how serious, but that extreme view is both unacceptable to most normal persons and subversive of the social contract itself, which ultimately depends not on mutual understanding and good will, but on a balanced distribution of physical power and the willingness to use it. Sustaining the social contract therefore depends in large part on so ordering the constitution and laws as to avoid unbalanced or excessive concentrations of power, whether in the public or the private sector.

Checks and Balances –

The framers of the U.S. Constitution addressed the problem of avoiding unbalanced or excessive concentrations of power in government by adopting a constitution in which legislative, executive, and judicial powers are largely divided among separate branches, with each having some power to check the abuses of the others. Legislative powers were further divided between two legislative bodies. Some powers were delegated to the central national government, which others were reserved to the component states or the people.

Around the end of the 19th century, however, it became increasingly apparent that excessive and unbalanced concentrations of power in the private sector could subvert the system of checks and balances in government, and the first anti-trust laws were passed to try to provide a check on those undue influences. Unfortunately, such legislation has not been entirely effective, and we now face a situation in which to an intolerable degree the real powers of government are being exercised not by constitutional bodies but by secret cabals based in the private sector but extending throughout government, cabals which are increasingly coherent and increasingly abusive of the rights of the people, including the right to have government be accountable to them and not to a power elite. The continued constitutional development of this society will therefore require the development of a new, more sophisticated system of checks and balances that extends throughout the private sector as well as the public and does not entirely rely on market forces.

Much of the abuse that has developed arises from the assumption by the national or central government of powers not delegated to it under the Constitution, and the erosion of the powers of the States with respect to that central government. Some of those powers are arguably best exercised by the central government, but without constitutional authority even the exercise of reasonable powers becomes an abuse and leads to an escalating cycle of abuses as more and more people resist such intrusions, creating a crisis of legitimacy not only for those unconstitutional activities but for the constitutional ones as well. If government is to be brought into compliance with the Constitution, then there will have to be a carefully planned program of repealing or overturning unconstitutional legislation and official acts, combined with a number of amendments that will provide the needed authority for legislation and acts which are best exercised by the central government, and the re- enactment of legislation based on such amendments. That will leave a difficult problem of dealing with all those actions conducted without constitutional authority before the amendments are adopted. Making the amendments retroactive is not permissible under constitutional principles, which exclude not only ex post facto laws but ex post facto amendments as well.

Of Rights Natural and Constitutional –

Under the theory of the social contract, those rights which the individual brings with him upon entering the social contract are natural, and those which arise out of the social contract are contractual. Those contractual rights arising out of the constitution are constitutional rights. However, natural rights are also constitutional rights.

The fundamental natural rights are life, liberty, and property. However, it is necessary to be somewhat more specific as to what these rights include. Therefore, constitution framers usually expand them into such rights as the right of speech and publication, the right to assemble peaceably, the right to keep and bear arms, the right to travel over public roadways, and so forth. The exercise of such natural rights may be restricted to the extent that they come into conflict with the exercise of the natural rights of other members of society, but only to the minimum degree needed to resolve such conflict.

Such natural rights are inalienable, meaning that a person cannot delegate them or give them away, even if he wants to do so. That means that no constitutional provision which delegated to government at any level the power to take away such rights would be valid, even if adopted as an amendment through a proper amendment process. Such rights apply to all levels of government, federal, state, or local. Their enumeration in the constitution does not establish them, it only recognizes them. Although they are restrictions on the power of government, the repeal of the provisions recognizing them would not remove the restrictions or allow the delegation of any power to deny them. The people do not have that power, and therefore cannot delegate it to government.

Yet constitutions recognize the power to deprive persons of their rights under due process of law. Strictly speaking, a person may not be deprived of such rights in the sense of taking them away. Natural rights are never lost. Their exercise can, however, be restricted or, to use the proper legal term, disabled. While some might question the practical distinction between losing a right and having it disabled, that distinction is important. A right which is disabled under due process may also be re- enabled by the removal of that disability, and the disability is removed if the social contract is broken and persons return to the state of nature.

Due process is not defined in the written U.S. Constitution, which points out the fact that the constitution consists not only of the written document itself, but the body of court precedents, legal definitions and traditions, and prevailing civic processes as of the date the written document was ratified, which is called pre-ratification Common Law. It also includes the commentaries and records of the debates of the framers and ratifiers insofar as they provide guidance on how to interpret the provisions of the written document. The constitution is further expanded to include the body of court precedents since ratification which interpret its provisions, called post-ratification common law, but only insofar as those court precedents are consistent with the written document, pre-ratification Common Law, and the original intent of its framers and ratifiers.

Certain rights, therefore, such as the rights of due process and the right to vote, are contractual. They have no meaning in a state of nature, only within the context of a civil society. And they are defined within Common Law rather than in the written Constitution.

Due process requires, among other things, that any disablement of a right be done only by a court of competent jurisdiction in response to a petition to do so, and after arguments and evidence are heard from all sides to support or refute the granting of such petition. The only rights which may be disabled by statute and without a specific court proceeding are the rights of majority, or adulthood. Common Law recognizes that persons are born with disabilities of minority, and constitutions and laws typically define some age at which those disabilities are removed, such as age 18 in the United States for purposes of voting, although it may allow for such disabilities to be removed earlier, or retained past the usual age of majority, upon petition to do so. Due process therefore requires that each and every right which is to be disabled be argued separately on its merits, and the ruling or sentence of the court explicitly disable each such right.

This requirement therefore comes into conflict with legislation which prescribes the disablement of certain rights for persons convicted of certain types of crimes, such as the right to vote or to keep and bear arms, without that disablement being made an explicit part of the sentence or the sentencing hearing. Such legislation must be considered unconstitutional, for even though there may be due process in the case which results in the explicit disablement of the rights to certain liberties or properties, those disablements are openly stated and argued, and the statutory inclusion of other disablements that are not made explicit or separately argued is a denial of due process.

Duties under the Social Contract –

While a constitution prescribes the legal rights of individuals and the powers of government, the social contract also includes certain duties which members assume upon entry. Those duties include the duty to avoid infringing on the rights of other members, to obey just laws, to comply with and help enforce just contracts, to serve on juries, and to defend the community.

It is important to recognize that although individuals have a right of self-defense in the state of nature, when they enter into society under the social contract, the pooling of that right transforms it into a duty to defend the community, and therefore to risk or sacrifice one’s life, liberty, or property if such defense should require it. The right of self-defense is no longer supreme, although it survives the transition to society as a duty to defend oneself as part of the community. Pacifism in the face of mortal danger to oneself or others is therefore not consistent with the social contract, and persons who insist on that position must be considered not to be members of society or entitled to its benefits, and if they live in the same country, have the status of resident aliens.

This duty implies not only individual action to defend the community, but the duty to do so in concert with others as an organized and trained militia. Since public officials may themselves pose a threat to the community, such militias may be subject to call-up by officials, but may not be subject to their control except insofar as they are acting in accordance with the constitution and laws pursuant thereto, and in defense of the community. Since any official designated to call up the militia may be an enemy of the constitution and laws, and may fail to issue a call-up when appropriate, militias must remain able to be called up by any credible person and independent of official control.

Another important duty is jury duty. Since officials may be corrupt or abusive or their power, grand jurors have the duty not only to bring an indictment upon evidence presented to it by a prosecutor, but to conduct their own investigations and if necessary, to appoint their own prosecutors to conduct a trial on the evidence. Petit jurors have the duty to not only follow the instructions of the judge to bring a verdict on the “facts” in a case, but to rule on all issues before the court, overriding the judge if necessary. No matter how despicable an accused defendant might be or how heinous his acts, they have the duty to find that accused not guilty if the court lacks jurisdiction, if the rights of the accused were seriously violated in the course of the investigation or trial, or if the law under which the accused is charged is misapplied to the case or is unconstitutional; and to find the law unconstitutional if it is in violation of the constitutional rights of the accused, if it is not based on any power delegated to the government, if it is unequally enforced, or if it is so vague that honest persons could disagree on how to obey or enforce it. Since most jury instructions now discourage petit juries from exercising that duty, almost all convictions brought by such juries in which there was an issue in law must be considered invalid, due to jury tampering by the court.

Governmental Powers and Duties –

Some critics of social contract theory argue that there are some powers of government that are not derived from powers of the people or delegated to the government by them. However, a careful analysis will show that all powers exercised by government derive either from the people as a whole, or from some subset of the people, or from one person, and that only the first are legitimate. The power to tax? Persons in the state of nature have the power to tax themselves, although they would not ordinarily think of it that way.

Most written constitutions prescribe the powers delegated to government, but are not always explicit about the duties. It is implied that the government has the duty to exercise its powers wisely and pursuant to the purposes of the social contract. But some persons argue that the power to act is also the power not to act. Could the government choose not to exercise its power to conduct elections, or to defend the country, or to maintain a sound currency, or to organize and train the militias of each state? No. Except in case of emergency, and only for the duration of the emergency, government must exercise the powers delegated to it according to their purposes to the best of its ability. That is its duty. Just as it is the duty of every member of society to exercise his or her powers in service of the community.

References: Ernest Barker, ed., Social Contract, Oxford U. Press, London, 1960. Contains the essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

James Madison, Notes of Debates in the Federal Convention. The definitive record of the proceedings of the Constitutional Convention of 1787.

James Madison, Alexander Hamilton, John Jay, The Federalist.

Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, New York, 1980.

Leonard W. Levy, Original Intent and the Framers’ Constitution, 1988, Macmillan, New York. Scholar examines “original intent” doctrine and its alternatives.

Stephen P. Halbrook, That Every Man Be Armed, 1984, Independent Institute, 134 98th Av, Oakland, CA 94603.

Clarence Streit, Atlantic Union Now, 1962, Freedom & Union Press, Washington, DC.

**** The Constitution Society gives its permission for this last section (“The Social Compact & Constitutional Republics”) to be copied with attribution for noncommercial purposes.

This post includes a compilation of two previous works:
I. My original composition

II. The Intro about Social Compact: Martin Kelly, “The Social Compact,” ThoughtCo., June 26, 2017. Referenced at: https://www.thoughtco.com/social-contract-in-politics-105424

III. “The Social Compact & Constitutional Republics,” 2007 Constitution Society. http://www.constitution.org/soclcont.htm

Other Resource: “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union” (The Avalon Project; Yale Law School) — http://avalon.law.yale.edu/19th_century/csa_scarsec.asp