Undoing the American Republic with Welfare and Institutionalized Poverty (That’s Why Welfare Reform is So Important!)

WELFARE - work hard, millions depend on you (BEST)

by Diane Rufino, September 30, 2018

Government programs such as welfare and other social means-tested programs characterize very well the government’s general policy towards poverty: Make individuals “comfortable” in their poverty rather than incentivize them to become self-sufficient. Those dependent on government have little incentive to vote against its interests; those dependent on government have little incentive to vote for fiscal conservatism and for constitutional conservatism.

The premise of this article is three-fold:

(1)  To make the argument that government entitlement and other social welfare policies (means-tested programs), rather than serving “the general welfare” and helping to raise people out of poverty, in fact are really just increasingly making individuals “more comfortable” in their poverty, are increasingly relieving them of the “burden” of having to provide for themselves and their families, and in their sum, are creating institutionalized dependency. We see it already, and have seen it for many years now – welfare has become a way of life and not just a temporary program of aid and assistance; even worse, it has become a generational way of life.

(2)  Dependency, and certainly institutionalized dependency, by its very nature, puts individuals completely at odds with the notion of freedom. An individual cannot be free and dependent on government at the same time.  As more become dependent on government, there is no other course than the destruction of our republic and the transformation to socialism. Socialism is the death blow to individual liberty. The rights of the individual, the property of the individual, the work and production of the individual, becomes subject to the needs and best interests of the collective. Socialism is the death blow to the great American experiment.

(3)  Entitlement Programs, like block grants to the States (per “contact agreements”), are Unconstitutional.

A GOVERNMENT OF LIMITED POWERS?

As the title of this article suggests, I intend to address the constitutionality of Welfare and other means-tested social programs. The United States was once a country that prided itself on the ambition, creativity, ingenuity, energy, and production of the American people. Americans worked hard; they provided for themselves and their families. Without the lure of a safety-net, people became creative and ambitious and did whatever they could to make a living and provide for themselves and their family. With people like that, with social pressure like that, is it any wonder that our country was so successful and created such profound wealth? Is it any wonder that people were able to climb the social ladder so quickly and children and grandchildren became more successful than their parents? Is it any wonder why the United States became such an attractive magnet for the impoverished and downtrodden of the world?

But after the era of Franklin Delano Roosevelt, the United States slowly and steadily became a welfare state, with Lyndon B. Johnson taking the most credit for what our country has become.  In 1964, with the Civil Rights bill looming, Johnson said to his political cronies: “These Negroes, they’re getting pretty uppity these days and that’s a problem for us since they’ve got something now they never had before, the political pull to back up their uppityness. Now we’ve got to do something about this, we’ve got to give them a little something, just enough to quiet them down, not enough to make a difference.”

Well, it did make quite a difference. Rather than help pull African-Americans out of poverty, welfare often doomed them to institutionalized poverty. Rather than help African-Americans overcome the prejudices, discriminations, and actions that held them back in the past, welfare was responsible for the greatest change in community dynamics which would have unfortunate consequences for them – it destroyed the black family.  The impact of welfare policies on marriage and family have been dramatic: Out-of-wedlock birthrates have skyrocketed among all demographic groups in the US but most notably among African Americans. In the mid-1960s, the out-of-wedlock birth rate was scarcely 3% for whites, 7.7% for Americans overall, and 24.5% among blacks. By 1976, those figures had risen to nearly 10% for whites, 24.7% for Americans as a whole, and 50.3% for blacks specifically. And today, the numbers stand at 29% for whites, 41% for the nation overall, and 73% for blacks. In other words, thanks to the welfare state, the entire country is moving rapidly in the wrong direction, but blacks in particular have reached a point of veritable catastrophe.

Is welfare constitutional??   I’ll eventually get to that question.

First of all, where does the supposed constitutional authority come from to redistribute wealth in the name of “welfare” or “security”?  The usual answer is the “General Welfare” clause of the Constitution. In the opening paragraph of Article I, Section 8 (which delegates to Congress the powers it is legally authorized to exercise), we find the “General Welfare” Clause. We have seen that term previously, of course – in the Preamble to the Constitution. In that opening paragraph of Article I, Section 8, Congress is granted power to tax and spend for the “general welfare of the United States.” From early in our history there were arguments about what sort of spending was truly for the general welfare. Treasury Secretary Alexander Hamilton, for instance, argued in 1791 that bounties paid to innovative new manufacturing concerns would qualify as spending for the general welfare. But Hamilton understood that the appropriations had to meet a standard of  uniformity throughout the Union. And for decades, Congress and various presidential administrations (mostly Republican) considered whether various “internal improvement” projects could legally constitute spending “for the general welfare.”

The government is not one of unlimited powers. We all know this. The US Constitution, as ratified by the individual states, created a common government of expressly-delegated powers which taken together, provide for some common essential functions (like safety and security, speaking with “one voice” in dealing with foreign nations and the Indian tribes, ensuring that commerce is made “regular,” and providing a uniform system of currency). Its powers were not intended to reach inside the state to regulate or affect the conduct of its citizens.

And yet the Constitution contains a clause that references “the General Welfare.” It’s called the “General Welfare Clause” and its purpose means one thing to big government folks and another to those who hold true to the historical view of the Constitution.

This clause is a special friend of  big-government politicians and intellectuals, and an enemy of limited-government folks. It is the catch-all phrase by which the federal government claims the authority to enact so much of its unconstitutional legislation and to carry out so much unconstitutional taxing and spending.

When the federal government wishes to create and expand welfare programs, to meddle in education, to provide grants for certain groups of individuals to attend college, to assist women in aborting their babies, to establish a national healthcare system, to serve the enormous immigration population (including illegals), to provide financial support for refugees, or to coerce the states to increase their drinking age or lower their speed limit,  progressives cite the “General Welfare” clause for constitutional authority.

Constitutional conservatives, on the other hand, push back with the argument that the General Welfare Clause is NOT, in fact a grant of power or source of authority.

Which is the correct view?  And why is it so important?

THE GENERAL WELFARE CLAUSE:

Article I, Section 8 of the Constitution lists the delegated functions of the federal legislative branch (Congress): Its opening paragraph includes the General Welfare Clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;  —And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[This last provision is called the “Necessary & Proper” Clause; it is typical language included in contracts at the time making clear that the party delegated a particular function or functions can take the “necessary” steps to carry out that function or those functions.]

FEDERAL SPENDING:  IS IT ALL CONSTITUTIONAL? 

The federal government spends money, through grants, tuition, other types of “assistance,” etc, to do things it cannot otherwise accomplish through actual constitutional authority. For example, the federal government provides funding to States to build roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, housing, and other infrastructure; it provides funding to educate our children and to require public schools to implement affirmative action and other special programs for minorities and for students with disabilities; it provides funding for pre-school and day care; it provides funding to re-train the unemployed; it provides funding for relief aid; it provides funding for state and local law enforcement; it provides funding for Medicaid, food stamps, free lunch programs, and other social services; it provides funding to aid illegals; and it provides funding to individuals for college tuition, tuition remission, as scholarship awards, for housing, etc.

Article 1, Section 8, Clause 1 grants the US government the power to raise and spend money. Is that power limited?  Or is it unqualified and unlimited?  We all know the government’s view.

The government may believe it is justified under the General Welfare Clause, for example, to provide healthcare for the elderly (or for everyone), to provide old-age pension, to fund public health projects; to invest in and conduct basic research; to provide subsidies for agriculture; to build libraries, and even to provide emergency aid for natural disasters. But under what theory of a “limited government” is Congress justified in taxing and spending for such purposes as building roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, and housing, educating our children, providing pre-school and day care; re-training the unemployed, and bailing out big banks and big industry (such as the auto industry)?  The answer is that according to the delegated powers vested in Congress in Article I, Section 8, none of those responsibilities is allowed. “The powers not delegated to the States, nor prohibited to them, are reserved to the States and to the People.”  Then Tenth Amendment tells us that all of these objects rightfully belong to the States. While the government assumes the authority to tax and spend for these objects from the General Welfare Clause, it is the Tenth Amendment that supersedes.

The amount spent on such programs is staggering:

First of all, the US Treasury divides all federal spending into three groups: mandatory spending, discretionary spending and interest on debt. Mandatory and discretionary spending account for more than ninety percent of all federal spending, and pay for all of the government services and programs on which many rely. Federal spending for 2015 was broken down as follows: Mandatory spending at 64.4%, Discretionary spending at 29.3%, and Interest on the debt at 6.03%.

Discretionary spending refers to the portion of the budget that is decided by Congress through the annual appropriations process each year. These spending levels are set each year by Congress. In fiscal year 2015, $1.1 trillion out of a total budget of $3.8 trillion was spent on discretionary spending. By far, the biggest category of discretionary spending is spending on the Pentagon and related military programs. Examples of other well-known programs paid for by discretionary spending include the early childhood education program Head Start (included in Housing & Community), Title I grants to disadvantaged schools and Pell grants for low-income college students (Education), other school funding, food assistance for Women, Infants and Children (WIC), training and placement for unemployed people provided by Workforce Investment Boards (in Social Security, Unemployment and Labor), and scientific research through the National Institutes of Health (NIH) and National Science Foundation (NSF), among many others.

Mandatory spending is spending that Congress legislates outside of the annual appropriations process, usually less than once a year. Out of a total budget of $3.8 trillion, $2.45 trillion was spend on mandatory spending. It is dominated by the well-known “earned-benefit” programs Social Security and Medicare (that is, people have money taken out of their wages for these programs). It also includes widely used safety net programs like the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps), and a significant amount of federal spending on transportation, among other things.

Many mandatory programs’ spending levels are determined by eligibility rules. For example, Congress decides to create a program like Social Security. It then sets criteria for determining who is eligible to receive benefits from the program, and benefit levels for people who are eligible. The amount of money spent on Social Security each year is then determined by how many people are eligible and apply for benefits, whether or not they have paid into the program. [Note: Congress does not decide each year to increase or decrease the budget for Social Security or other earned benefit programs. Instead, it periodically reviews the eligibility rules and may change them in order to exclude or include more people, or offer more or less generous benefits to those who are eligible, and therefore change the amount spent on the program].

Mandatory spending makes up nearly two-thirds of the total federal budget. Social Security alone comprises more than 1/3 of mandatory spending and around 23% of the total federal budget. Medicare makes up an additional 23% of mandatory spending and 15% of the total federal budget. [See:  https://www.nationalpriorities.org/budget-basics/federal-budget-101/spending/ ]

The question is: Are these grants and other forms of assistance to the States constitutional?  Perhaps such programs as Social Security and Medicare are constitutional, or at least at one time were (that is, when salary deductions for them were still considered a property right), but now they are simply considered another federal tax.

But what about the other programs??   Welfare (for the poor and the generational dependents), education funding, funding for transportation, state grants?

On the government’s website (https://www.grants.gov/learn-grants/grant-policies.html; “A Short History of Federal Grant Policy”), there is this explanation:

      Billions of dollars in Federal grants are awarded each year for programs and projects that benefit the public. This assistance is rooted in the Constitution and its call to “promote the general Welfare.”

      It wasn’t until the 1970’s, however, that Federal grant policy began to evolve into what it is today. The Federal Grant and Cooperative Agreement Act, passed in 1977, set out to guide government agencies in their use of Federal funds – particularly by defining the roles of contracts, cooperative agreements, and grants. Contracts, the law states, should be awarded when a Federal agency is acquiring something – an improved computer network, for example. Grants and cooperative agreements, meanwhile, should be awarded when a Federal agency is providing assistance, such as funding for a lower-income housing program in an at-risk urban community.

The federal government, by law, has established a grant program (mandatory grants and discretionary grants) whereby it provides funding to the states as a means to further its policies or to coerce conformity among the states on matters it has no actual constitutional authority to legislate. These grants are contractual in nature and so, legally, if the particular state accepts the money, it agrees to the conditions attached to it. It’s a matter of free will. And so the government achieves contractually, and coercively (because money is an attractive carrot) what it cannot achieve constitutionally. It is the means by which the federal government can control and coerce the States; it is the means by which the federal government can achieve an end-run around the Constitution and accomplish unconstitutionally what the Constitution legally does not allow it to accomplish. Federal grants to the states (grants-in-aid) are a primary mechanism that the federal government uses to extend its influence into state and local affairs.

The matter of federal funding and the coercion associated with it was addressed in 1987 with the Supreme Court case South Dakota v. Dole. The case centered on the constitutionality of the National Minimum Drinking Age Act, which was passed in 1984.  Specifically the Supreme court was asked to consider the limitations that the Constitution places on the authority of the US Congress when it uses its authority to influence the individual states in areas of authority normally reserved to the states.

The National Minimum Drinking Age Act (NMDAA) withheld 10% of federal highway funding from states that did not maintain a minimum legal drinking age of 21. South Dakota, which allowed 19-year-olds to purchase beer, challenged the law as an abuse of power, naming Secretary of Transportation Elizabeth Dole as the defendant.

The Court, in a 7-2 opinion, upheld the statute’s constitutionality. The majority opinion, written by Chief Justice William Rehnquist, articulated a 5-point rule for considering the constitutionality of expenditure cuts of the type in the NMDAA:

  • The spending must promote “the general welfare.”
  • The condition must be unambiguous.
  • The condition should relate “to the federal interest in particular national projects or programs.”
  • The condition imposed on the states must not, in itself, be unconstitutional.
  • The condition must not be coercive.

Rehnquist concluded that the NMDAA met the first three restrictions and thus was a constitutional exercise of Congressional authority. Furthermore, he wrote that Congress did not violate the Tenth Amendment because it merely exercised its right to control its spending nor did the statute coerce the states since it cut only a small percentage of federal funding.  According to Rehnquist, Congress applied pressure, but not irresistible pressure.

I believe the opinion was a poor exercise of judicial interpretation, and it hurts me to say that considering what a fan I usually am of William Rehnquist.

While contacts are always allowable, the question I ask is whether it is constitutional in the first place for the federal government to collect tax money for the purpose of doing something unconstitutional (even if it is by contract). I think it is an unconstitutional object of the taxing power. The power to coerce through funding is the power to coerce period.

If the federal government can use public funding to extend its authority, why can’t a state government have its citizens withhold federal tax dollars and direct it to itself instead in order to further its state authority under the Tenth Amendment?

Federal grants, put simply, are not only an unconstitutional exercise of the federal taxing and spending power but act to distort and erode the critical balance of government power between the states and the federal government.

SEPARATE GRANT OF POWER OR QUALIFYING PHRASE?

The words “General Welfare” actually create something of a dilemma. Either the founders didn’t really intend to create a general government of limited powers, or the General Welfare clause doesn’t really mean unlimited federal authority to do things beneficial to the nation as a whole.  What is it?

The answer, of course is easy. It’s just not the convenient answer for the federal government.

The grant of power to “provide . . . for the general welfare” raises a two–fold question:  (1) How may Congress provide for “the general welfare,” and (2) What is “the general welfare” that it is authorized to promote?

The first half of this question was answered by Thomas Jefferson in his opinion (to President George Washington and the First US Congress) on the government’s authority to establish a National Bank as follows: “The laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.” The clause, in short, is not an independent grant of power, but a qualification of the taxing power. Although a broader view has been occasionally asserted, and although Congress has acted under that assumption, the Supreme Court has NOT upheld that view.

Let’s start by looking at construction:

The “General Welfare” clause, as one can notice and read, is set off by commas after the delegation of taxing power, for the purpose of clarifying WHAT the taxes collected are to be spent on. The powers enumerated in the following lines go into more specifics as to what Section 8 means when it says “to provide for the common Defense and general Welfare of the United States.” The fact that the framers followed up the general welfare clause in Article I Sec. 8 with specific enumerated powers indicates the latter – a qualification on federal authority. If they had intended Congress should have the power to do virtually anything and everything to promote the general welfare, they wouldn’t have bothered to include specific powers.

We don’t need to speculate on what the “General Welfare” clause means and we shouldn’t have to take the word of a politically-appointed Supreme Court justice. We only need to look at the explanation provided by the author of the Constitution himself, James Madison.

In a letter to James Robertson, dated April, 20, 1831, Madison makes quite clear that the phrase “for the General Welfare” is not a separate grant of power:

“With respect to the two words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

The General Welfare Clause is not an enlargement clause, authorizing the government to tax and spend to pay the nation’s debts, to provide for the common defense, and to do anything it wants for the general welfare. It is a clarifying clause, serving once again as a reminder the goals of the government. The goals, of course, are stated in the Preamble to the Constitution:  “To form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….”

Again, if our Founding Fathers and drafters of the Constitution had intended Congress should have the power to do virtually anything and everything it wanted in order to promote the general welfare, they wouldn’t have bothered to include specific delegations of power. If the government was intended to be one of unlimited and consolidated powers, what state would have ratified it?  The truth is that the Constitution was sold to the States, through written and oral assurances, as one creating a common government of limited powers to serve the States and to carry out their common functions.

James Madison, as I hope everyone knows, was a primary author of The Federalist Essays, which became known as The Federalist Papers. Knowing that of the 55 delegates who attended the Constitutional Convention in Philadelphia, only 39 signed it at the end (September 17).  Some didn’t sign because they had already left explained the convention and several didn’t sign because they could not lend it their support.  He also knew that some heavy hitters refused to even attend the convention because of grave suspicions of what the convention might try to do and that they would not support his Constitution in the state ratifying conventions. And in fact, during the ratification debates, Anti-Federalists who opposed the Constitution voiced fears that people would come along and assert that the term “General Welfare” granted unlimited power to the federal government.

Madison, together with Alexander Hamilton and John Jay, wrote the Federalist essays (ie, the Federalist Papers) as a means to explain each provision of the Constitution and for the purpose of providing assurances to the States as they contemplated whether to adopt it or not. In particular, the Federalist essays addressed the fears, the skepticism, the concerns of the Anti-Federalists (who had written a series of essays highlighting the defects in the new Constitution). The Federalist Papers, coming from the primary author of the Constitution, the man who called for the Convention, the man who provided the rough draft (rough outline) of the proposed new government), the man who attended each day, the man who took faithful notes of the proceedings and debates, the man who was almost universally perceived as being honest and trustworthy, and the man who most had a stake in seeing the Constitution through to its adoption (since it was his vision to scrap the Articles of Confederation) in favor of a new government), are without a doubt the most important and the primary authority on the meaning and intent of the US Constitution.

With that in mind, Madison addressed the scope of the General Welfare Clause in his Essay No. 41:

      For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?  Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

He went on, in Essay No. 41:

      In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare.’

Again, the Federalist Papers, because of how wrote the essays and for the purpose they were written, are the primary authority on the meaning and intent of the US Constitution.

Madison further illuminated the intended meaning of the General Welfare Clause in a letter written to Edmund Pendleton in 1793, pointing out that the phrase was lifted from the Articles of Confederation and was intended to retain its meaning in the new Constitution.

       “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”

According to Madison, “the most important and fundamental question” with respect to the intent and meaning of the Constitution and the design of the government created was the meaning of and the relationship between the General Welfare Clause and the enumeration of particular powers in Article I, Sect. 8. This question, as he explained in Federalist No. 41, is the most “fundamental” because the answer determines the very “idea” or “nature” of the U.S. Constitution. It determines the ambition of the federal government.  Legal scholars and commentators virtually agree that the clause was not a separate grant of power but rather a substantive grant of power for the generally-stated end (see the Preamble to the Constitution). They agree that the primary purpose of the ensuing enumeration was to define more particularly the ends alluded to by the phrase “General Welfare.” Hence, the meaning of the general constitutional government in the American federal system is a government oriented to a limited number of limited ends.

I would argue then, that any “taxing and spending” for purposes not permitted under the enumerated powers, and in fact, reserved to the States per the Tenth Amendment, is impermissible and unconstitutional.

But we all know that the States are weak and the Supreme Court, because of its general aversion to cling to a meaning associated with an era long gone, intentionally ignores what our Founders have said and what they have written. They prefer to engage in their progressive way of interpreting the document in order to update it – which is merely a way of saying that they want to ignore the intended restraints on the federal government in order to transfer more and more power to it.

So the words “general welfare” must mean something other than a grant of power for Congress to do whatever it pleased. What exactly did the framers mean?

Two words in the clause hold the key – the words general and common. The phrase simply means that any tax collected must be collected to the benefit of the United States as a whole, not for partial or sectional (i.e. special) interests. The federal government may promote the general welfare, or common good, but it must do so within the scope of the powers delegated and without favoritism.

Let’s look at what the Supreme Court has said:

The Constitution contains two references to “the General Welfare” — one occurring in the Preamble and the other in the Taxing and Spending Clause. The Supreme Court, in the case Jacobson v. Massachusetts (1905), has held the mention of the clause in the Preamble to the U.S. Constitution “has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”  Furthermore, the Court has held that the understanding of the General Welfare Clause contained in the Taxing and Spending Clause adheres to the construction given it by Associate Justice Joseph Story in his 1833 Commentaries on the Constitution of the United States:

“A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defense and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them.”    [Commentaries on the Constitution of the United States, in §919]

Justice Story concluded that the General Welfare Clause is not a grant of general legislative power, but a qualification on the taxing power which includes within it a federal power to spend federal revenues on matters of general interest to the federal government.

The problem with Justice Story’s comment (above) is that the “General Welfare” does NOT mean “General Interest to the federal government.” It means the “general welfare of the American people.” The clause means that the US Congress the power to spend for matters affecting only the national welfare, and not certain groups particularly.

The problem is that the federal government is addicted to taxing; it gives government the ability to carry out its expressly-delegated function and also the ability to carry out functions it has no authority to regulate. The latter it accomplishes by bribery – I mean, it offers the states grant money (in exchange for complying with conditions; conditioned spending).

When challenged on the federal government’s constitutional authority to create welfare programs, meddle in educations, take over public education, offer programs specifically for illegal aliens and Hispanic green-card holders, or run a national healthcare system, progressives will almost always appeal to the “General Welfare Clause.” Because they believe the government SHOULD be handling such tasks, they advance the “all-inclusive” and “all-authoritative” view of the Clause. And who is really willing to challenge this – the greater than 50% of the people who depend on government programs enacted “for the so-called General Welfare”?  At some point, there will be so very many people unable to support themselves and provide the substance to take care of themselves and their families and who look to the government that the federal courts are going to have to officially re-interpret the General Welfare Clause to give Congress a blank check to legislate for any reason related to the “general” welfare or to the welfare of any particular group of people. And perhaps that is the reason the government has, over the years, established so many policies designed to get Americans dependent on it for their essentials. Perhaps that is why Democrats in particular, continue to make sure that those on entitlement and other social programs are increasingly more “comfortable” in their poverty rather than pressured to abandon a life of dependency for one of employment and production.

WELFARE: CONSTITUTIONAL or NOT?  HOW BETTER TO PROVIDE A SAFETY-NET?

As explained above, I believe any taxiing and spending for objects NOT expressly tasked to the federal government by Article I, Sect. 8, is unconstitutional. There is no provision in the Constitution for (1) Discretionary Spending; (2) Grants and Other Types Assistance, which includes things like grants and scholarships for education, grants to the States (for roads, bridges, airports, ports, railroad tracks, public schools, Medicaid and other dependency programs, healthcare, etc); (3) Education; (4) Universal Healthcare; or (5) Welfare and other government-sponsored public assistance programs. All of these types of spending (although one might argue that for the most part, some are duplicated) allow the government to do the following:

(1)  Maintain a high federal taxation rate

(2)  Accomplish what the Constitution itself does not allow it to do.  (They permit the government to make an end-run around the Constitution)

(3)  Control people. A person dependent on government will never vote against its interests.

(4)  Exercise control over the States  (Most States can’t fund all that the State requires internally and for its people through the money that it raises by state taxation, and that is why they almost reflexively and automatically put their hands out when the federal government offers government assistance)

(5)  Apply coercion to the States.  (Again, most States can’t fund all that the State requires internally and for its people through the money that it raises by state taxation, and that is why they almost reflexively and automatically put their hands out when the federal government offers government assistance, even though they know that the funds come with strings and often times, it deprives the State of the decisions and options it could have exercised on its own)

(6)  Establish uniformity among the States (slowly erasing the borders that distinguish one state and its “politics” from another).  Dangling funds in front of a State that is otherwise strapped for funds is coercive pressure (regardless of what judges who sit on a bench in DC say) and usually results in the States accepting the money, agreeing to its conditions, and sacrificing little by little its state autonomy and sovereignty.

In other words, the spending identified above, including funding (grants) to the States and including welfare and other means-tested assistance programs, are unconstitutional.

Healthcare is a social program, plain and simple; it is socialist at its core. Those who the government determines are able to pay their insurance premiums must do so, and in fact, will be burdened with an increase in premiums. Why?  Because they are paying not only to cover themselves and their families, but to help cover all those in poverty who can’t afford healthcare on their own. It is a government program based on simple re-distribution of wealth and socialism. One group of individuals suffers a burden while another group receives a hand-out. Both pretty much get the same level of healthcare coverage.

Government, or universal, healthcare is not legitimately covered by the “General Welfare” Clause because the program doesn’t apply equally to everyone. It is a program whereby the government commandeers half the American population to cover (pay) the healthcare insurance premium costs of the other half. One half benefits in every sense of the word while the other half is forced to incur an additional burden.

Welfare, and other means-tested social programs, are other programs based on re-distribution of wealth. Those who work and make enough are required to pay federal income taxes. They work at least 3 months out of the year to pay the government what it requires, which is essentially 30% of their income and a lot more for other types of assets. Those who don’t work or only work a little (and don’t make enough) can go on welfare and can take advantage of other means-tested social programs. They can sit around and wait for their government checks – money that flows directly from those who earn and produce to those who don’t.

These programs are not legitimately covered by the “General Welfare” Clause because frankly, it doesn’t fit the definition of “general welfare.” The opening paragraph of Article I, Sect. 8 means that any tax collected must be collected in order that the government (Congress) can fund all the projects pertaining to the express powers granted to it (ie, the enumerated powers), which collectively are covered by the phrase “for the common defense and to provide for the general welfare.” Welfare and other means-tested social programs do NOT benefit the citizens of the United States as a whole, but rather benefit only a subset of the people. In fact, a good portion of citizens are harmed in order to benefit the others. That hardly seems fair. The Constitution doesn’t empower the US Congress to institutionalize giving and compassion. It only empowers Congress to act in those areas that the States originally agreed to in 1788. [On June 21, 1788 the Constitution became the official governing document of the United States of America when New Hampshire became the ninth of thirteen states to ratify it, per Article VII].

The grants to the States are simply unconstitutional because the federal government, in Article I, Sect. 8, was not delegated the authority to address any of the purposes for which the grants are offered. If the government can simply accomplish through funds (conditional funding) what it can’t accomplish according to the Constitution, then the government is not a limited one but one easily and most likely capable of becoming overly ambitious and controlling. If the government can simply accomplish through funds (conditional funding) what it can’t accomplish according to the Constitution, then our government is not longer “federal” but “national.” And we see that is absolutely true today.

Let’s go back to Welfare (and other means-tested social programs) and look at the inherent unfairness in the program. One group of people exists on welfare and other social programs; their needs and essentials are provided by the government. Since they earn no money, they pay no federal taxes. The other group is self-sufficient and is able to provide for themselves and their families (the way it was supposed to be), and because they are considered “successful,” the government demands that they pay a fairly substantial federal income tax. In fact, all their income, all their property, and all their assets must be diligently disclosed to the IRS.  Government, of course, doesn’t provide its own money but rather must obtain it, usually through taxpayer funding. So, the first group, on welfare, is not supported by the government but rather by hard-working tax-paying citizens.  One groups pays (heavily) and the other sits back and receives; yet both enjoy the freedoms, the civil rights, and the privileges, as well as the safety and security provided by the United States. But, truth be told, both exist differently and both are not served equally from the government. Here are some differences:

(a) Those on welfare don’t need to work; they don’t even need to get out of bed or get off the couch. They can socialize or they can spend all day with their kids.  Those not on welfare must work and must always be concerned that their jobs are secure.

(b)  Those on welfare don’t have to worry where their money comes from and don’t have to live check to check for their rent and their grocery bills. They get a check from the government which they can count on. Those not on welfare often live check to check; in fact, they sometimes have to take on a second job or have their spouse go to work to cover bills.  (The ironic thing is that those on welfare often tell Health & Human Services Office that there are no jobs, yet those not on welfare often have no problem finding a second job)

(c)  Those on welfare get a break in college tuition; there are lots of scholarship and tuition assistance aid to help them; those not on welfare pay more for their children to go to college.

(d)  Those on welfare get free healthcare.  Those not on welfare have to pay for their own health insurance or make sure they get a job that provides it.

(e)  Those on welfare (or those who meet other means-tested criteria) can also get food stamps (to help them buy more nutritious food), assistance for daycare (even though they don’t work), housing assistance, assistance to help cover heat and air-conditioning, etc etc.  In other words, over the years, more and more social programs have been created to help make people more comfortable in their poverty. They do NOTHING to help them become independent and self-sufficient, and in fact, do everything to establish the hand-outs as a way of life.

(f)  Those on welfare can have all the kids they want, including with as many different men as they want. Sure, they are supposed to disclose the name and contact information of the father of each child to Health & Human Services, but knowing people who have worked with HHS, women aren’t always forthcoming with such information. My mother, who worked for years with the New Hanover County Department of Health & Human Services, used to tell me how frustrating it was to work there and what a scam Welfare is. She told me how mostly black women would come in to the office with two and three and four kids and want their check. She would ask them for the name of the father of the children, and the response would be “I don’t know” or “Just give me my damn check.” She would call for her supervisor and eventually, every single time, they would get their check without giving any information.  Those not on welfare have to make a cost-benefit analysis when planning their families. Having children isn’t a scam to them or a money-making scheme. Their concerns are always whether they can afford them and provide a good life for them.

(g)  Those on welfare are supposed to continually look for work and report their efforts to HHS, but we know that’s a joke. Most know exactly how to game the system. When those not on welfare need to find a new job, they make an honest and great effort to do so.

(h)  Those on welfare can do drugs and abuse alcohol whenever they want and still collect their checks. Those not on welfare must always conduct themselves in a manner to be good and responsible employees; they must show up for work on time, be alert, be productive, not call out excessively, and must be able to pass an on-the-spot drug test.

(i)  Those on welfare never have to worry about keeping a record of their expenses, keeping receipts, or hiring an accountant to navigate the federal income tax form. They never have to worry about being audited by the IRS or will never know the absolute fear of getting a certified letter from them.  They will never have to worry about having the IRS telling them that they should have paid more in taxes and so, the money they planned to use for a vacation must be turned over immediately. Those not on welfare are slaves to the IRS and to the April 15 deadline to file their taxes.

(j)  Those on welfare never have to worry about saying or doing anything on social media or in their private lives that might somehow prevent them from receiving their checks. Those not on welfare, however, must forever be diligent in what they say, how they say it, where they say it, to who they say it, and they must be careful to give the appearance of being neutral on religion and politics and social issues should a co-worker somehow find out or should Human Resources find out. Personal opinions and politics, and activism and association…  these once traditional exercises of the First Amendment now can be reason to be fired from a job or to be denied an interview.

(l)  Those on welfare automatically get an increase in their living expenses with each additional child. Those not on welfare do not. Those not on welfare (ie, those who have honest employment) cannot game the system and defraud their employer.

(m)  Those on welfare can exploit various ways to exploit the entitlement system, including colluding with men to have additional children and splitting the welfare funds.

Welfare and other government hand-out programs offer only one positive benefit: They offer a safety net to those who temporarily are unable to work and provide for themselves and their family. This safety net was intended to be temporary, to provide for the individual while he or she figures out a way to get back on his/her feet and back into the workforce. It was NOT intended to be a way of life. It was NOT intended to be a viable alternative to a career or being a productive member of society. On the other hand, welfare and other government hand-out programs offer many negative effects (many perhaps are unintended consequences), including the following:

  • They generate and reward sloth
  • They relieve too many young people of the energy they would need to invest in an education or to learn a skill
  • They result in a lack of ambition
  • They result in an obese population (as someone from New Dehli once explained to his family: “I want to live in America. I want to live in a country where the poor people are obese.” Dinesh D’Souza tells this story)
  • They have resulted in, and continue to result in, the destruction of the family unit (welfare contains marriage penalties)
  • They have increased, and continue to increase, the level of poverty in our country [Families with an absent father, black and white alike, generally occupy the bottom rung of America’s economic ladder. Regardless of race or ethnicity, the poverty rate for single parents with children is several times higher than the corresponding rate for married couples with children. According to Robert Rector, with the Heritage Foundation, “the absence of marriage increases the frequency of child poverty 700 percent” and thus constitutes the single most reliable predictor of a self-perpetuating underclass. Articulating a similar theme many years ago, Martin Luther King, Jr. said, “Nothing is so much needed as a secure family life for a people to pull themselves out of poverty”]
  • They inspire and encourage too many people to stay on welfare and not look for employment (cost-benefit analysis)
  • They perpetuate of ignorance, illiteracy, etc
  • They serve as a viable alternative to getting an education
  • They reward those who did not take public education seriously nor took any initiative to learn a skill
  • They reward women for having children without being married
  • They reward women for not cooperating with authorities to identify the father or fathers of their children (in order to have them provide child care)
  • They have created generational government dependency (young girls imprint on their mothers and get pregnant without being married in order to be taken care of rather than get educated and work)
  • Rather than serve the positive goal of providing a temporary safety-net until the applicant can get back on his or her feet, they have become a permanent means of support. Dependency has become a way of life. (Over the years, more and more social programs have been created to help make people more comfortable in their poverty. They do NOTHING to help them become independent and self-sufficient, and in fact, do everything to establish the hand-outs as a way of life)
  • They have resulted in the increase in crime, drug use, and human decay [In agreeing to sign the Civil Rights legislation of 1965, LBJ’s chief objective was to reduce dependency by blacks and put an end to the disproportionately high rate of black poverty. He said he wanted “to break the cycle of poverty” and make “taxpayers out of tax eaters.” He further claimed that his programs would bring to an end the “conditions that breed despair and violence,” those being “ignorance, discrimination, slums, poverty, disease, not enough jobs”]
  • They have ruined whole communities
  • They have created a class system in the US (those who are dependent and are takers; and those who are independent and produce).
  • They have caused one group of citizens to distrust and to have no respect for another group of people (because many recipients are non-citizens)
  • They have caused people to question the legitimacy of the voting system [Is it fair for people living off the government (ie, other people), to have the ability to vote and have a say in how other people’s money is spent? Maybe there should be a progressive voting system like there is a progressive income tax…. Those with more money and assets are taxed at a higher level so maybe their votes should carry greater weight]

To highlight the differences between those on welfare and other social programs with those who provide for themselves one sentence, I would sum it up this way: Those on welfare receive a check without any conditions attached; those not on welfare are subject to.

The federal government has been financing government-provided welfare since the 1930s. Of the more than $1.1 trillion spent in fiscal year 2016, federal expenditures accounted for $829 billion (or 74% of all funding related to welfare programs), and state expenditures accounted for $297 billion (or 26%). Most state spending ($213 billion) is done on one single program – Medicaid. In terms of GDP, welfare alone accounts for 6%. It has risen steadily and quickly in the years after Ronald Reagan left office. During LBJ’s term, welfare spending accounted for 1.5% of GDP; during Carter’s term it more than doubled – to 3.6%; during Reagan’s term, it remained the same and even dipped; but then after he left office, it began to increase quickly and steadily.

Imagine how much each taxpayer could be relieved in his or her federal taxation burden if the federal government taxed only for the spending for which it is constitutionally allowed.  Imagine how much each individual State could then tax its citizens. They would be able to raise money on their own to cover internal expenses – the running of the State and the care of its people – and more importantly, they could spend that money AS THEY SEE FIT, and not within the conditions imposed by the federal government. Imagine how, if this financial dependency were ended, the rightful balance between federal and state government power could be better achieved.  Taking away the financial power to coerce and control leaves the States in a better position to stand up to the federal government rather than to cower and concede.

As mentioned above, the spending identified above, including funding (grants) to the States and including welfare and other means-tested assistance programs, are unconstitutional.  Yet there are citizens who feel passionate and strongly that those who can give up some of their income should do so in order to take care of those who are less fortunate, those who are legitimately disabled (and not like some friends I know who filed for disability because of their obesity), those who work but can’t provide enough for their family (while still continuing to have more and more kids), those who are here illegally and need help providing for their growing families, those who have children without being or getting married (including those who refuse to provide information to the authorities for child-support), those who are crafty at defrauding the system, those who ignored the opportunity to become educated and hence can’t get anything other than a minimum-wage job, and those who simply don’t want to work.  I wonder if they feel so passionate and so supportive of these people because they know that it is other people’s hard-earned money that will be used to support them. I wonder if they would feel the same if the money was taken from them, their family, their food allowance, and their recreation fund.  I think the only legal way that the federal government can offer welfare and other means-tested assistance programs is if it asks each taxpayer, at the time they file their taxes, if they would be willing to donate additional of their money for the care of the poor. I’m sure many would agree to do so. I’m also sure that such programs would have much less funding which means criteria would be stricter and time restraints would have to be added. The programs would clearly have to be temporary in nature and because of stringent criteria, there would be indirect pressure to get off as soon as possible.

So, let me list out some solutions to the problem of federal discretionary spending, including Welfare and state grants:

(i)  My first solution to this out-of-control, unconstitutional-taxing and spending bloated government is for the States to challenge each item of federal spending for constitutionality. For each item that is not constitutional, the federal income tax rate should be reduced accordingly.

(ii)  My second solution (and this one is for Welfare only) would be the one outlined in the previous full paragraph (each taxpayer can offer to send additional of their money to the government for welfare programs). Personally, I like this one.  This forces people to put up or shut up. It forces people to put their money where their mouth is.

(iii)  My third solution is each state to establish a State Escrow Account. (I’ve written an article on this and how it would work).  Each State would review the federal budget and determine which items are constitutional or not. It would then adjust the federal budget accordingly. Then it would determine the pro rata share of that budget that North Carolina residents would provide. The state would require all residents to have their federal income tax first reviewed by the State Treasury Department. Only the portion that corresponds to constitutional federal spending would be forwarded to the IRS and the remainder would be deposited in the State Escrow Account. The state would then determine for itself what to do with the escrow funds – either returning it to its residents or applying it to state projects, thus relieving the state of any un-necessary reliance on the federal government and moving the state towards the independence it was intended to have.

(iv)  My last solution is to keep welfare and the other means-tested social programs, but to treat them like state grants and attached strict conditions to recipient status. Remember, welfare and other such social entitlement programs are like state grants in that they both are an unconstitutional exercise of the taxing and spending power. Conditions should be attached for two essential reasons: (1) to ensure that recipients can only receive benefits for a LIMITED time (there will need to be time limits); and (2) to make it so burdensome that recipients will want to get off of government assistance as soon as possible, whether that means they will look at marriage and education more favorably or will invest in career training programs or will make sure they do not have further children which may tend to keep them dependent on government aid. Some conditions that should be placed on free government aid (ie, other people’s money) include:

  • Mandatory birth control. (No government check without first receiving a monthly birth control shot)
  • No increase in the welfare check and no additional funds should the recipient have another child while on public assistance
  • Suspension of the right to vote
  • Definite earmarks are attached to the funding. Funds can only go towards essential food items, housing, and transportation. Any person on government assistance who can afford a new car will be automatically kicked out of the program
  • No free cell phones
  • No visits to the nail salon
  • No funding for air-conditioning (Lowe’s sells a great $12 fan which works wonders in the heat)
  • Mandatory proof of job searches (including signed statements from each employer consulted, including the reason the person could not be considered or interviewed. Job searches will be viewed with extreme scrutiny for potential for fraud and abuse; for example, a person who has a criminal record should not be looking for a job with law enforcement or education, daycare, etc because such jobs expressly require employees to have no criminal background history)
  • Mandatory community college or GED courses for those who did not graduate high school or who barely graduated (those who severely lack the basic skills and knowledge imputed on an adult, or a young adult)
  • Mandatory college or community college courses for those who have no college diploma, associates degree, vocational training, etc (No government check without a report showing course status; if a person is not working, he or she must be developing their career and building valuable job skills)
  • Children of a person on welfare must be doing well in school (average or better)
  • Proof of citizenship must be provided (and confirmed by the Social Security Department). Identity fraud will result in immediate deportation
  • Recipients must show they are drug-free (mandatory drug-testing)
  • Random audits will be conducted
  • Mandatory visits from a social worker to assess the cleanliness and order of the home and the environment for the child (or children)
  • Recipients must be available for community service when the state government needs them

I’m sure there are other conditions that I haven’t thought of and I’m sure that others would make some suggestions of their own.  In fact, I would encourage those who have read this article to comment and add their suggestions.

Milton Friedman, an economist, was highly critical of welfare, and noted several times how it should be judged by its results and outcomes and not by its intentions.  He also said: “There’s been one underlying basic fallacy in this idea of welfare measures, and that is that it is feasible and possible to do good with other people’s money. That view has two flaws. If I want to do good with other people’s money, I first have to take it away from them. That means that the welfare state philosophy of doing good with other people’s money, at it’s very bottom, is a philosophy of violence and coercion. It’s against freedom, because I have to use force to get the money. In the second place, very few people spend other people’s money as carefully as they spend their own.”

If we are going to coerce and extort money from taxpayers, not merely to provide safety and security for the country or to legislate for the enumerated objects in Article I, Section 8, but also to support those who don’t want to even try to support themselves and their families, then the very least we should do is provide accountability to those taxpayers (those hard-working men and women whose paychecks are seized by the government for 1/3 of the year) and that is to attach strict and limiting conditions to welfare checks. The program, which would have to be run as one that is contractual in nature and not as a constitutional responsibility, must be so burdensome, so intrusive, so violative of freedom, and so unattractive to the recipient that he or she will absolutely want to spend as little time as possible on it.  Well that’s the hope anyway.

 

References:

John Perazzo, “How the Liberal Welfare Destroyed Black America,” Front Page Magazine, May 5, 2016.  Referenced at:  https://www.frontpagemag.com/fpm/262726/how-liberal-welfare-state-destroyed-black-america-john-perazzo

Mike Maharrey, “The General Welfare Clause is Not About Writing Checks,” The Tenth Amendment Center, August 28, 2014.  Referenced at:  https://tenthamendmentcenter.com/2014/08/28/the-general-welfare-clause-is-not-about-writing-checks/

Federalist No. 41 –  http://avalon.law.yale.edu/18th_century/fed41.asp

“Federal Aid to States and Local Governments,” Congressional Budget Office (CBO), April 18, 2018.  Referenced at: https://www.cbpp.org/research/state-budget-and-tax/federal-aid-to-state-and-local-governments

The Delegates Who Didn’t Sign the Constitution –  https://www.constitutionfacts.com/us-constitution-amendments/those-who-didnt-sign-the-constitution/

Delegates to the Constitutional Convention in Philadelphia (May 27 – September 1787) –  http://law2.umkc.edu/faculty/projects/ftrials/conlaw/marryff.html

“Federal Grants to State and Local Governments (1960-2017) – Chart Analysis,” Mercatus Center (George Mason University).  Referenced at:  https://www.mercatus.org/system/files/Federal-grant-aid-state-and-local-chart-analysis-pdf.pdf

“Federal Spending on Benefits and Services for People with Low Income: In Brief,” Congressional Research Service, Feb. 6, 2018.  Referenced at:  https://fas.org/sgp/crs/misc/R45097.pdf

“Spending for the General Welfare,” Cornell Law School.  Referenced at:  https://www.law.cornell.edu/anncon/html/art1frag29_user.html

Jefferson’s Opinion on the Constitutionality of a National Bank (1791), Avalon Project (Yale Law School).   Referenced at:  http://avalon.law.yale.edu/18th_century/bank-tj.asp

Grant Policy –  https://www.grants.gov/learn-grants/grant-policies.html

Federal Spending: Where Does the Money Go?,” National Priorities Project.  Referenced at:  https://www.nationalpriorities.org/budget-basics/federal-budget-101/spending/

Matthew J. Franck, “The Lawless Welfare State,” National Review, Jan. 13, 2013.  Referenced at:  https://www.nationalreview.com/magazine/2010/05/17/lawless-welfare-state/

 

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

THOMAS JEFFERSON - wire glasses

by Diane Rufino, September 16, 2018

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

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

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

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

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

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

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

At the end of his Opinion, Jefferson writes:

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

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

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

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

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

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

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

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

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

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

 

References:

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

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

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

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.

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/