But you do have to explain or give some reason for the takeover that makes it appear that there is no takeover. The The Fifth Amendment to the U.S. Constitution is one of the means. It states:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Pretty straight forward, isn’t it? The law should be fair to everyone. So where are all these rights to marriage that same-gender people say they have a constitutional right to? It’s not that simple. It’s all based on one small clause in that amendment: that no person shall “be deprived of life, liberty, or property, without due process of law.” How is not having the right to marry someone of the same gender a deprivation of life, liberty, or property without due process of law?
Due process is what a legislature goes through to enact a law. Typically, it goes to both houses of the legislature for voting, then it goes to the chief executive, the governor of a state or the president of the U.S., then it becomes law. If it’s a criminal law, you’re supposed to be able to properly, adequately, and legally defend yourself when charged with a crime. All that is “procedural due process.” So, what if the legislature enacts a law that says children can’t stay with their natural parents, then what happens? The courts would have to enact the law, and even with procedural due process, the state could take away your children. Thus, procedural due process would not protect you from a substantially evil law. Surely that can’t be right. But the courts can’t just use their personal opinion to overrule a duly enacted law. The courts have to respect the legislature to some extent. So where do you draw the line?
In American, some laws violate the rights “implicit in the concept of ordered liberty.” For example, the Bill of Rights delineates such, like not having soldiers quartered in your house or not having the police barge into your personal space without a warrant. But prohibiting the taking of your children away from you for no reason other than that the civil government wants to do so is not in the Bill of Rights. Other laws, like restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of “discrete and insular minorities” get strict scrutiny. Then, if not stated explicitly in the Constitution, the U.S. Supreme Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions.
Here’s how it works. You have to become a protected class. Otherwise the proponent of the change in the law has to prove there’s “no rational basis” for the law, which is a very large hurdle to overcome. But if the law affects a fundamental right or your group that’s affected is classified as a protected group, like a racial or ethnic group, then a court applies “strict scrutiny” instead of “rational basis” scrutiny in analyzing the law. In that case, the burden is on the law-maker, typically a state, which has to prove that it had a compelling state interest in creating the boundary, in violating a fundamental right. Also, the court asks whether the law in question is narrowly tailored to address the state interest.
All laws discriminate. You can’t go here, you can’t join this, you’re not entitled to this benefit, on and on. It is only those laws that deny a fundamental right that are questionable. So, when did same-gender people get the fundamental right to marry each other? It’s not in the U.S. Constitution. It’s not deeply rooted in American history and traditions. There is no basis for it, and the Supreme Court's DOMA decision, stating essentially that the federal government had no rational basis for limiting marriage to a man and a woman, stated no basis either.
No actual, legally defensible basis, something the highest court in the land is supposed to do when it strikes down a law enacted pursuant to the U.S. Constitution, Article VI (in part): "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; shall be the supreme Law of the Land." Notice that clause says nothing about the U.S. Supreme Court striking down a law. Which should carry more weight? A law passed by over 400 congressmen and signed by the President of the U.S. in accordance with the Constitution's requirements? Or a court's five-member majority's personal opinions?
Monday, March 10, 2014
Sunday, March 2, 2014
The Process of Takeover
Once you as a judge become unmoored from the Constitution, the Bible, and any law, you enter into a brave, new world of plasticity that draws from the judge all his creative juices for treating human beings and society itself as malleable mush in your ever-loving and creative hands. Never mind that you're not called as a judge to do that to people and society; it's just way too tempting to play god.
As you read a little bit of the writings of the founders, that is what you see - fear of man and his ability to oppress, even if from the best of motives. They sought to hold down the power of the central government with the "chains of the Constitution." George Washington said it well in his Farewell Address.
"However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.
"Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown."
Government Printing Office website, http://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf, accessed on March 2, 2014.
You may have never thought about how unique the American founders were. In the history of man, revolutionaries have taken over governments or wrested portions of a nation from the central power, as we wrested from Great Britain the colonies that later became the states. However, normally the wresters of power have proclaimed themselves the saviors of the people and thereby gone about setting up a new dictatorship resting on better, as they say, foundations and motives. Interestingly, the founders did not take that tack. They said no one should be trusted with too much power, including themselves. This is the beauty of the U.S. Constitution, and what the power-seekers constantly try to undermine.
Therefore, we the people must "resist with care the spirit of innovation upon its principles, however specious the pretexts."
As you read a little bit of the writings of the founders, that is what you see - fear of man and his ability to oppress, even if from the best of motives. They sought to hold down the power of the central government with the "chains of the Constitution." George Washington said it well in his Farewell Address.
"However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.
"Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown."
Government Printing Office website, http://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf, accessed on March 2, 2014.
You may have never thought about how unique the American founders were. In the history of man, revolutionaries have taken over governments or wrested portions of a nation from the central power, as we wrested from Great Britain the colonies that later became the states. However, normally the wresters of power have proclaimed themselves the saviors of the people and thereby gone about setting up a new dictatorship resting on better, as they say, foundations and motives. Interestingly, the founders did not take that tack. They said no one should be trusted with too much power, including themselves. This is the beauty of the U.S. Constitution, and what the power-seekers constantly try to undermine.
Therefore, we the people must "resist with care the spirit of innovation upon its principles, however specious the pretexts."
Saturday, March 1, 2014
Why America has a Problem of Judicial Tyranny 2
How is judicial tyranny manifested? When the judge acts as a legislator. The liberals contend this is how judges should act. Truly, they are not wanting judges to act as judges behind the bench; they are advocating for judges who exceed their power and act as legislators. They are advocating lawlessness. The judge who acts as a legislator violates his oath and seeks to wield power over all three branches as a legislator and judge. It is not a legitimate option. There is only one type of legitimate judge in American jurisprudence, one who believes in a conservative judicial philosophy. And the Originalist Judge is the only one whose opinion on the law and Constitution can be an honest attempt to apply that foundational document to our legal controversies in the courts.
It is not overturning the law, when a people or their representatives in a state join in a convention to amend the U.S. Constitution or their own state constitution; it is a lawful method of altering such documents as stated in Article V of the U.S. Constitution and the amendment provisions of most state constitutions. Whereas the action of a judge, who is supposed to review individual cases pursuant to the law and legal rules but who instead alters, re-interprets, and overturns the law, using only the status as a judge instead of the law itself to do so, is a violation of their oath to uphold and defend the Constitution.
And that is exactly what has happened in the marriage debate in this country, at least in the legal machinations that have occurred thus far. In more than one state, the people or their representatives have spoken by lawful, constitutional means as to the definition of marriage as being between a man and a woman, or their legislatures have spoken by laws passed in a lawful process. Yet, judges, with no law backing their decisions, have called those laws unconstitutional. Attorney generals, governors, and other chief executives of political jurisdictions, even before such decisions were announced, have refused to execute the laws they are sworn by oath to uphold. These are the ones who act lawlessly and violate their oath.
Recently, the U.S. Supreme Court effectively ruled that that there is "no rational basis" for defining marriage as being between a man and a woman? No rational basis! In fact, there is no lawful basis for the decision in U.S. v. Windsor (the DOMA case), which is one of the most lawless impositions/perversions of the law by five persons' personal opinions in the history of this country.
As long as the liberals' view of judges is perceived as just another political alternative, instead of a travesty of justice and a mangling of the constitution as our foundation, then legislators, disguised as judges in black robes, will continue to wreak havoc upon our body politic.
Most recently on this front, the U.S. Supreme Court has refused to review the decision of several Circuit Courts of Appeal which overturned state's laws on this issue. They didn't need to, for the Appellate Courts followed the cue of the DOMA case from the summer of 2013. They fulfill the prediction of the Anti-Federalist Brutus, who in 1788 stated:
"There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."
Brutus, Anti-Federalist Papers 78-79, Part one is taken from the first part of the “Brutus’s” 15th essay of The New-York Journal on March 20, 1788; Part two is part one of his 16th of the New York Journal of April 10, 1788, accessed at "The Federalist Papers," http://www.thefederalistpapers.org/antifederalist-paper-78-79, Oct. 12, 2014.
It is not overturning the law, when a people or their representatives in a state join in a convention to amend the U.S. Constitution or their own state constitution; it is a lawful method of altering such documents as stated in Article V of the U.S. Constitution and the amendment provisions of most state constitutions. Whereas the action of a judge, who is supposed to review individual cases pursuant to the law and legal rules but who instead alters, re-interprets, and overturns the law, using only the status as a judge instead of the law itself to do so, is a violation of their oath to uphold and defend the Constitution.
And that is exactly what has happened in the marriage debate in this country, at least in the legal machinations that have occurred thus far. In more than one state, the people or their representatives have spoken by lawful, constitutional means as to the definition of marriage as being between a man and a woman, or their legislatures have spoken by laws passed in a lawful process. Yet, judges, with no law backing their decisions, have called those laws unconstitutional. Attorney generals, governors, and other chief executives of political jurisdictions, even before such decisions were announced, have refused to execute the laws they are sworn by oath to uphold. These are the ones who act lawlessly and violate their oath.
Recently, the U.S. Supreme Court effectively ruled that that there is "no rational basis" for defining marriage as being between a man and a woman? No rational basis! In fact, there is no lawful basis for the decision in U.S. v. Windsor (the DOMA case), which is one of the most lawless impositions/perversions of the law by five persons' personal opinions in the history of this country.
As long as the liberals' view of judges is perceived as just another political alternative, instead of a travesty of justice and a mangling of the constitution as our foundation, then legislators, disguised as judges in black robes, will continue to wreak havoc upon our body politic.
Most recently on this front, the U.S. Supreme Court has refused to review the decision of several Circuit Courts of Appeal which overturned state's laws on this issue. They didn't need to, for the Appellate Courts followed the cue of the DOMA case from the summer of 2013. They fulfill the prediction of the Anti-Federalist Brutus, who in 1788 stated:
"There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."
Brutus, Anti-Federalist Papers 78-79, Part one is taken from the first part of the “Brutus’s” 15th essay of The New-York Journal on March 20, 1788; Part two is part one of his 16th of the New York Journal of April 10, 1788, accessed at "The Federalist Papers," http://www.thefederalistpapers.org/antifederalist-paper-78-79, Oct. 12, 2014.
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