When I watch the MSM news I often see that a federal court has issued a ruling that a law or an executive order is unconstitutional, which I find surprising. These rulings are inevitably followed by pundits and investigative reporters who breathlessly endorse the results. Just as often I find myself wondering: What planet do these judges and pundits live on? And what Constitution are these judges interpreting? What has “unconstitutional” come to mean in this Brave New World where judges legislate, Congress prosecutes, and the President is forced to spend more time as a legal defendant than in protecting the nation? As an attorney who has argued constitutional law in federal court, I am amazed at how judges and the public seem to perceive the U.S. Constitution. Barely taught in law schools today, I believe that the actual Constitution is a very different animal from what most people — and apparently some judges — think it is.
First, a little philosophy—something also not taught in today’s law schools. The U.S. Constitution is an expression of Natural Right. Conceived as a check on the power of government to deny the inalienable natural rights of the People, the Constitution was divided not only into three branches, but also into federal versus state jurisdictions to set up an elaborate system of checks and balances. This division of power was to prevent the U.S. government from exercising unlimited power over the states or over the People. Contrary to today’s popular notion, the Constitution is a limiting document. It grants the U.S. government only specific enumerated rights—those powers which are not enumerated in the Constitution the U.S. does not possess, but under the 9th and 10th Amendments, are instead reserved to the States or to the People. Evidence of this is that only the states possess “police power”, meaning health, safety, morals and general welfare. Any law student who writes in a class assignment that the Federal government has “police power” in the roles mentioned just made his first “F”. But the public at large absolutely believe that the Feds have primary jurisdiction over health, safety, morals and general welfare.
The Constitution is a “social compact” in the sense of John Locke, the foremost Enlightenment philosopher, and is a contract between the People and the U.S. government and among the several states and the U.S. government, and impliedly reserves the right of the People and/or the states to abolish the Constitution, or to revolt and/or secede, if the U.S. government exceeds its authority and no longer protects the People’s inalienable natural rights or respects the rights of the sovereign states. Among these rights, subject to certain obvious, long-recognized, common-sense limits, are freedom of political speech, political press, peaceable assembly, redress of political grievances, the right to bear arms (in order to secure the aforementioned rights), to be secure in their persons and houses and effects, right to trial by jury in criminal matters, right to due process, right to criminal defense counsel, and freedom from excessive fines and cruel & unusual punishments. And the States possess any and all other rights which the Constitution does not explicitly grant to the U.S. government.
Again contrary to popular opinion which believes that the United States is the longest living government on Earth thanks to the permanence of its Constitution, the U.S. Constitution has failed twice. Today we are living in its third incarnation. Lincoln suspended the Constitution during the Civil War and the Radical Republicans transformed the document in its aftermath into something barely recognizable with the 13th, 14th and 15th Amendments. Franklin D. Roosevelt sank the second incarnation in the late 1930s when he pressured all four of the traditional Justices on the Supreme Court (SCOTUS) into resigning and replaced them with his own political hacks. Some may say that the Constitution has failed again due to the political activism of Democratic Justices. Let’s examine some history to see if this is so.
With the 13th Amendment, Congress outlawed slavery, and not only in federal jurisdictions like D.C., but in the states as well. Moderns take it for granted that the 13th Amendment was constitutional, but prior to the Civil War, it would have been unconstitutional because the federal government was a government of enumerated powers only and reaching into the individual states and legislating on an internal matter like who was a citizen and what a state could mandate regarding non-citizens (as some states asserted) like blacks and Indians was beyond the power of DC (Washington, D.C., meaning the Federal government). With the 13th Amendment, DC clearly asserted a power that was not enumerated and which usurped the erstwhile sovereign power of the states over purely internal matters. No longer would the Constitution reflect a confederation of independent states, but would increasingly be changed to reflect an all-powerful central government that ignored inconvenient parts of the Constitution as it wished.
The 14th Amendment was the chief article responsible for this change. Where the 13th Amendment was highly specific, the 14th Amendment was the exact opposite. No one knew what it actually meant when it was passed, which was done hastily during a chaotic Reconstruction of the defeated and resentful South in order to ensure that Reconstruction governments under military rule would consist of many blacks if not consist entirely of blacks. The lack of careful analysis is clearly seen in the phrasing of “privileges or immunities” in place of the “privileges and immunities” clause of Article IV, an oversight that has led to a tangle of judicial interpretation even today, though perhaps merely reflects the urgency that had seized Congress when it passed the 14th Amendment. A similar oversight is visible in the phrases such as “all persons born or naturalized in the U.S.” when plainly this would be impossible to implement since children born to foreign ambassadors could not be accepted as U.S. citizens and are not today. “Subject to the jurisdiction thereof” is also vague and has allowed SCOTUS to read it first one way, then the opposite, as if it could be totally divorced from “all persons born or naturalized”, while logically they are one clause. The Due Process clause mirrors the 5th Amendment Due Process clause but usurps state power as forcefully as the 13th Amendment did, but remains so vague that it has launched a “cottage industry” of bizarre doctrines and claims. Finally, the “equal protection” clause opened a veritable Pandora’s Box of bizarre doctrines since no one then or now can agree on what the heck “equal” means since nothing in nature is truly equal except subatomic particles.
In the 20th century, anchoring their legal thought in the 14th Amendment and the Interstate Commerce Clause (Art I, Sec 8), the Democratic Party brought a sea-change to the conception of the Constitution as a limiting document. The ICC, which originally applied only to “exchange of goods” across state lines, was expanded in the 1890s to end national monopolies under the rationale of protecting the alleged “natural laws of trade.” In 1937 under FDR, in National Labor Relations Board (NLRB) v Jones, SCOTUS abandoned a literal interpretation and traditional notions of protecting natural rights by moving to a balancing test for the Interstate Commerce Clause, and soon thereafter applied a “rational basis” test to allow legislatures to expand governmental power under this clause. Still not satisfied, under U.S. v Darby, SCOTUS declared that the Negative Commerce Clause rendered the 10th Amendment a “truism,” and law schools have ever since taught that the 10th Amendment is void and has no meaning. NCC is the notion that U.S. jurisdiction on Interstate Commerce always preempts State jurisdiction, even in the absence of positive federal law. The same principle was invoked more recently in U.S. v Arizona 567 U.S. 387 (2012), which declared in part that the lack of federal enforcement of immigration law did not entitle Arizona to enforce federal or state immigration laws because immigration is exclusively under federal jurisdiction even in its absence.
In 1942, FDR’s Democrat-dominated SCOTUS in Wickard v Filburn ruled in effect that even a backyard vegetable garden owned by a recluse and intended only for personal use, since it had mere potential to affect interstate commerce, however slight, was subject to regulation by the U.S. under the Interstate Commerce Clause, permanently delegating unlimited power to the federal government to regulate virtually anything anywhere, in theory even a corpse in its grave because its failure to breathe was negatively affecting interstate commerce. Contrary to popular perception, the Civil Rights Acts of the 1960s were largely implemented under the ICC and not the 14th Amendment, precisely because SCOTUS had so completely infused the ICC with unlimited federal power since the 1930s.
Similarly, in the Contracts Clause (Art I, Sec 10), SCOTUS has abandoned reading this clause as protecting inalienable rights from the overreach of states in favor of interpreting it as a minor principle of little relevance. Though there is no explicit right to property or right to contract in the Constitution, it clearly presumes these rights exist, otherwise the “no [State] Impairing the Obligation of Contracts” clause would make no sense at all, and the very purpose of having a written Constitution, which is itself a written contract, would be pointless. Contrary to the unlimited context that SCOTUS applied when interpreting the ICC, in Home Building Loan v Blaisdell (1934), SCOTUS ruled in the midst of the Depression that real estate leases were not contracts at all and could be voided virtually at will by States for purposes of rent control, and also directly by the U.S. if said real estate was located in Washington DC, even though impairing contracts is nowhere an enumerated power of the U.S., and even though the Contracts Clause specifically bars States from impairment, and therefore the power to decide rents under the Constitution is necessarily reserved to the People, presumably the parties to the lease, in the 9th and 10th Amendments — and despite the fact that this clear governmental impairment of contracts surely must disrupt interstate commerce more than the non-breathing of a buried corpse, or the non-sale of a sprig of wheat. This only shows how convoluted and irrational SCOTUS’s interpretation of the Constitution under Democratic Justices has become.
In Blaisdell, SCOTUS also condoned a State voiding future contracts before being entered into, thus bringing into question whether the Contracts Clause might be as void and meaningless in SCOTUS’s view as the 10th Amendment. This, even though if any “penumbra” exists in the Constitution at all, it must assuredly be for the protection of inalienable rights to property and for parties who enter into enforceable contracts, rather than unilaterally voiding contracts such as student loans. But the new emphasis on a flexible so-called “living Constitution” to meet modern needs, as defined exclusively by SCOTUS without resort to the legal process prescribed by the Constitution for new Amendments, was part of the new Democratic era under FDR, and this “living Constitution” approach riding roughshod over the People and the states remains the dominant philosophy for constitutional interpretation today in SCOTUS and in most American law schools. Like the 10th Amendment, since 1940, law schools have taught that the Contracts Clause is also entirely devoid of meaning.
As mentioned above, however, the 14th Amendment is where SCOTUS truly exceeded itself. In the 19th century Slaughterhouse and Cruikshank cases, SCOTUS had already dismissed the Privileges or Immunities (POI) clause as merely a redundancy to the Privileges and Immunities (P&I) clause of Art IV, leaving only the Due Process and Equal Protection and “born or naturalized” clauses as having any legal meaning. In perhaps the most famous SCOTUS case of all time, Lochner v New York (1905), SCOTUS for the first time found a substantive right in the 14th Amendment Due Process clause, ruling that New York bakers had a substantive “right to contract” with their employees for overtime, and thus ruled unconstitutional that part of the New York bakery “health & safety” regulation which had prohibited employees working overtime. This acknowledged for the first time a so-called “Substantive Due Process” concept and in subsequent cases SCOTUS showed that the new order of the day was to regard the “right of contract” as a principle subject to “balancing,” i.e., no longer an inalienable human right derived from natural law, and even though the Civil War had in part been fought over the South’s violation of African-Americans’ “natural right of contract” for their labor, thus undermining one of the chief rationales for prosecuting the Civil War, for outlawing slavery, and for passing the 14th Amendment itself.
In Nebbia v N.Y. (1934), under pressure by FDR at the height of the Depression, SCOTUS ruled that “the 14th Amendment does not prohibit [any] governmental regulation of the economy for the public welfare. . .all we need to know is whether the State regulation is. . .reasonable.” Lochner and Nebbia opened the door to finding new fanciful Substantive Due Process (SDP) rights such as this under the 14th Amendment. This was soon matched by U.S. v Carolene Products (1937) where the new Democrat-dominated SCOTUS ruled that the 14th Amendment Equal Protection clause, formerly virtually ignored and regarded by all prior SCOTUS’s as applying only to African-Americans, was suddenly discovered to apply to any “discrete and insular minority,” with a brand-new “rational basis” test for any governmental regulation or law that purported to protect such supposedly oppressed minorities, and which has since broadened from the Amish, which would seemingly be a “rational” view faithful to the genuine text of the 14th Amendment, to encompass what eventually became opening the immigration doors to nine-tenths of the world’s population, including multiple failed states whose residents have no more affection for or familiarity with American history, institutions, or values than the Man in the Moon. This last sleight of hand was accomplished by choosing to read literally “All persons born or naturalized in the U.S. . . .are citizens. . .” while ignoring “and subject to the jurisdiction thereof,” which, if a modicum of the creativity that SCOTUS has imputed into the Due Process clause since 1937 were applied, should result in canceling tourism birthright citizenship outright and rendering the latter as void as the 10th Amendment and the Contracts Clause.
Thus, after Lochner & Nebbia, the 14th Amendment Due Process clause, using the new SDP theorizing, has become a repository of innumerable “fundamental rights” with SCOTUS discovering ethereal new ones with every decade, including Roe v Wade, matched by a parallel series of new “rights” discovered with regularity in the Equal Protection clause, such as Title IX, with all of these new “rights” subject to “rational basis balancing” exclusively by an unelected SCOTUS, and relying for enforcement on the new unlimited federal power derived from the ICC. Moreover, the Democrat-dominated SCOTUS decided that the 14th Amendment also requires that the Bill of Rights, even though these were only exceptions from federal power, must apply equally to the States, restricting State governments as much as the U.S. government, and even though the States under the actual text of the Constitution are supposed to retain their sovereignty under the 9th and 10th Amendments, and even though the Constitution does not provide SCOTUS with jurisdiction in un-enumerated matters, and even though the 14th Amendment says nothing whatsoever about this completely fictional “Incorporation Doctrine,” but strongly implies against it. Justices like Clarence Thomas have sought to resurrect the 14th Amendment “Privileges or Immunities” clause in an attempt to cut off this never-ending flow of new federal fundamental rights, enforced by unlimited federal power, being discovered in the crystal balls of so-called “Progressives” in the Due Process and Equal Protection clauses, which brought us Roe v Wade, cake arrests, and Department of Justice bathroom inspections. But to this writer’s knowledge Thomas’ efforts have been unsuccessful.
The new order of “balancing” was adopted by Democrat-appointed Justices in SCOTUS precisely in order to transmute the Constitution from a government-limiting document into a government-empowering document. This “living Constitution” transmutation not only expands governmental power, but necessarily erases the very purpose in having a written Constitution in the first place, which was to permanently protect the People’s inalienable rights from the disease of unlimited government in plain language and to write it down so that everyone could understand and remember its purpose and thereby avoiding what happened in England where even a parliament turned out to be no protection from tyranny. Ever since Oliver Wendell Holmes Jr.’s famous “liberal” (read “statist”) dissents in the early 20th century, in Lochner and similar cases, the Democrats have made it clear that they do not believe in Natural Law or in any inalienable rights of the People, in which ranks one must include democratic elections since the right to vote, being part of freedom of speech, is also a Natural Human Right. On the contrary, the prevailing philosophy among the Democrats in SCOTUS ever since FDR’s era, has been that rights are whatever the government says they are. Period. In other words, the so-called “liberals” on SCOTUS perceive the Constitution as merely a tool of state, to be interpreted in whatever way is conducive to ever-greater governmental power funded by ever-greater levels of confiscatory taxation, and regardless of the outcome of “outmoded” democratic elections, even to canceling elections or executive orders if a Democrat-appointed federal judge personally dislikes the outcome, by simply labeling it “racist” or “sexist” and thereby “unconstitutional”.
The current debate therefore between so-called “Liberals” and “Conservatives” (I prefer “the Wokeness Cult” v “Advocates of a de-politicized civil society” since few old-style “liberals” remain) is not about the meaning of any specific clause, or method of interpretation, and certainly not about the personality of any President — as a MSM-manipulated public may like to believe — but over the purpose of having a written Constitution, and the proper role of government. By redefining “liberty” as only a revocable grant by an all-powerful government, the Democrats on SCOTUS have defined rights as nothing more than temporary grants by the state, and the Constitution itself is viewed as entirely dispensable, to be consulted only when convenient or when Democrats wish to pose as “defenders of our democracy,” a curious phenomenon that manifests itself mostly in four-year cycles during election years. The view of the Constitution as dispensable when convenient was not only popular among Democrats. Chief Justice Hughes in West Coast Hotel v Parrish, 1937, a leader in the Progressive movement and a registered Republican, and often the swing vote in the 1930s, stated: “The liberty safeguarded is liberty in a social organization which requires the protection of law.” A truism, but masks to the uninitiated what he was really communicating, that the era of individual inalienable rights had passed.
The Democrat criticism of Originalism was — and is — a masked indirect attack on the very concept of a written Constitution. In repudiation of the “living Constitution” approach, we notice that there is no Merger Clause in the Constitution, which means that the common law rule of using extrinsic evidence to clarify the intent of the parties in analyzing the meaning of ambiguous language applies to interpreting the Constitution. This means we can look to the Declaration of Independence, to the Federalist papers, the Preamble, and to any other contemporary documents to understand the Constitution and its Amendments, but not to modern perceptions. Originalism is otherwise known as meeting-of-the-minds of the original parties to the contract which is a principle of interpretation rooted in centuries of Anglo-American jurisprudence.
Regressives, OTOH, in their attack on a written Constitution, emphasize searching for meaning in ever smaller snippets of text stripped of all context, history, and culture, making the Constitution ever more obscure and amenable to ascribing their own agenda and the Democrats’ esoteric doctrines which they have implanted in the 14th Amendment Due Process and Equal Protection clauses precisely because they are obscure. Just as attacks on the Framers are intended as indirect attacks on the legitimacy of the Constitution as a whole, which the Regressives, whom I formerly affectionately termed the “Four Horsewomen of the Apocalypse”: (Ginsburg, Kagan, Sotomayor, and, as I liked to add, Breyer) regarded as a nuisance that is best jettisoned. In the Brave New World of the Democratic anti-Constitutionalists and un-Constitutionalists on SCOTUS, implementing fundamental rights which are newly discovered in mirage-like “penumbras” pieced together and inferred from various snippets of Constitutional text is more important than preserving the separation of powers provided explicitly by the Constitution or the limitation of U.S. powers inherent in its divided structure.
The Democrats play with fire. Over the past 80 years, the public has come to believe that the fanciful doctrines elicited by the Regressives from the Genie’s Lamp of the 14th Amendment are the actual Constitution instead of the plain text of the rest of the document. Truth and Natural Law were the bedrock on which the Constitution was built and on which our jury system and electoral system rest. Given the Leftist view that there is no Truth, only perception, that rights are only what the state grants and can be invented or denied whenever convenient to the ruling elite, including the right to vote, which they now see as a revocable privilege too, it should be no surprise that the new Democrat view is that speech itself is a “violent act,” and can be punished as a “hate crime” whenever SCOTUS perceives the speech to be unpleasant, a development that is entirely without precedent in a millennium of Anglo-American law, and is entirely at odds with the American philosophical tradition of Natural Right, which is now termed Human Rights. Just as it should be no surprise that such so-called “Progressives” have no issue with forging close alliances with dictatorships and theocracies since the latter share the “Progressive view” that “rights” are only tools of the state and are always revocable at the whim of governing elites.
Given that the Deep State, with its ABC agencies and MSM mouthpieces, have essentially no limit on their power, or any institutional restraint remaining on their behavior, what’s clear is that SCOTUS is a “super-legislature” and that virtually all decisions of importance formerly exercised by Congress are being made by these Dictators in Black Robes, who are unelected and ideologically driven, and occupy their positions of unlimited power for life, even if senile, crippled and blind. That part of the Constitution, SCOTUS strangely insists on reading literally. Article by Sin City Milla for Sirius.Reviews. If there is no Truth, then communication cannot be an estimation of Truth, but is an act in itself, therefore there can be no Right to Free Speech in the Leftist philosophical view, and as a corollary, the Right to Vote, which is a version of speech, is also meaningless and can be ignored by the U.S. as it pleases — which SCOTUS has done repeatedly by invalidating state elections for decades whenever it has decided that the results might violate their penumbra-discovered fundamental right mirages. And given that the Constitution is “the Supreme Law of the Land,” dispensing with the written Constitution undermines the idea of Law itself, transmuting Law into Process, merely a pliable instrument of state to be imputed with new invisible doctrines as SCOTUS pleases, as made clear in Nebbia, Blaisdell, and NLRB. When Law becomes Process, “reeducation” camps for heretics are not far behind.
So what the public at large believes to be the Constitution is actually just the 14th Amendment with its sacralized esoteric interpretations and its globalist “all shall be made equal” by any means and at any cost mantras, and the Incorporation Doctrine, which is of more than questionable provenance. These have been used since the Roosevelt Era to render the Constitution into a dispensable instrument of state by a coterie of quasi-religious fanatical Justices, and by SCOTUS’s long history of declaring that some explicit clauses in the Constitution have no meaning whatsoever while other obscure clauses are mystically filled with potent though invisible significance shows this clearly. If the Regressive Left continues to have its way in the Federal Judiciary, the very notion of preserving a written Constitution, free speech, and voting will continue to be under assault and may disappear into the dustbin of history, and the Sovereignty of the People become as quaint and ignored as States’ Rights are today — rights which were also at one time regarded just as securely protected by the Constitution, but which now must wage law-fare versus the U.S. government just to decide who can use which bathroom. If the Deep State and the Democrats prevail in their efforts to use the Federal Judiciary to neutralize electoral decisions, voting will become a matter of quotas, with “free speech” set-asides defined by ethnicity, with SCOTUS invalidating subsequent national or state elections as “racist” (read “heretical”) violations of the catechistic mantras of the 14th Amendment Equal Protection and Due Process clauses in their Woke incarnations whenever the Leftists happen to disapprove of the results. But, if so, we will at least be “diverse” and we won’t have Presidents who tell dirty jokes.
Given that the current crop of unelected politicians-for-life on SCOTUS is profoundly unrepresentative of the People, including not a single non-Catholic Christian (Gorsuch was raised Catholic and Jackson’s religion is more Woke than Protestant), although a majority of U.S. citizens are and always have been Protestant Christian, if SCOTUS continues to push to neutralize elections, I propose the popular election of Supreme Court Justices by region. There is a precedent for this. Prior to 1913, U.S. senators were “chosen by the Legislature thereof” (Art I, Sec. 3). The 17th Amendment changed this to popular election by their respective states. Given that SCOTUS is now a super-legislature (recall the zombie-like pounding of disappointed citizens on SCOTUS’s door over the appointment of Kavanaugh), I see no reason why Supreme Court Justice appointments should not also be decided by popular election by region and even with term limits. Requiring agenda-driven Justices to campaign for their office like any other professional politician could only reduce the bias on SCOTUS and perhaps help restore the Sovereignty of the People. Personally, I would prefer revoking both the 17th and 26th Amendments to curtail America’s accelerating slide into mob rule at the hands of an uninformed public. But the best hope of halting the slide is to strip the super-legislature of its elite powers. True, we finally have a majority of Justices who appear to have an interest in the actual Constitution, but who can know how long this majority will last? –Sin City Milla