Why Supreme Court opinions are not the
'Law of the Land,' and how to put federal judges in their place, By Publius
Huldah, 11/15/18
Central to the silly arguments made by the "Convention of States
Project" (COSP) is their
claim that 200 years of Supreme Court opinions have increased the powers of the
federal government (as well as legalized practices such as abortion); that all
these opinions are "the Law of the Land"; and we need an Article V
convention so we can get amendments to the Constitution which take away all
these powers the Supreme Court gave the federal government.
But the text of Article V contradicts COSP's claim. Article V shows that our
Constitution can be amended only when three fourths of the States ratify
proposed amendments. The Supreme Court has no power to amend our Constitution.
And it's impossible for an amendment to take away powers our Constitution doesn't
grant.
1. First Principles
Let's analyze COSP's silly argument. We begin by looking at First Principles:
Article VI, cl.2, US Constit., the "supremacy clause," defines
"supreme Law of the Land" as the Constitution, and acts of Congress
and Treaties which are authorized by the Constitution. Supreme Court opinions
aren't included!
Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by
the Constitution in Congress. Our Constitution doesn't grant any
lawmaking powers to the Judicial Branch.
So why does everybody say, as we heard during the Kavanagh confirmation
hearings, that Roe v. Wade is "the Law of the Land"?
Because Americans have been conditioned to believe that the
Supreme Court is superior to our Constitution; that their opinions about our
Constitution are "law," and we are bound by them unless and until
they issue new opinions which release us from their previous opinions.
3. Organic & statutory law and the
totally different "common law" precedent followed in courts
Americans have been conditioned to ignore the huge distinctions between organic
and statutory law, on the one hand; and the common law which
is embodied in the precedents followed by judges in
litigation.
Organic Law
Black's
Law Dictionary defines "organic law" as
Do you see how absurd is the claim that the Supreme Court, a mere
"creature" of the Constitution of 1787, has the power to change the
Organic Law of the United States?
Statute Law - Black's Law Dictionary defines
"statute law" as the "Body of written laws that have been
adopted by the legislative body." As we saw above, all legislative
Powers granted by our Constitution are vested in Congress
(Art. I, §1). Acts of Congress qualify as part of the "supreme Law of the
Land" only when they are made pursuant to Authority granted to
Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress
are not authorized by the Constitution, they are mere usurpations and must be
treated as such.6
Now let's look at the constitutional jurisdiction of the federal courts.
4. What kinds of cases do federal
courts have constitutional authority to hear?
So if a State enters into a Treaty, or grants Letters
of Marque & Reprisal, or issues paper money, or does any of the other
things prohibited by Art. I, §10, the controversy would "arise under the
Constitution" and the federal courts have constitutional authority to hear
the case.
Likewise, if a State passed a law which violated the Constitution – say one
requiring candidates in their State for US Senate to be 40 years of age –
instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts
have constitutional authority to hear the case.
Likewise, if a State passed a law which violated the Constitution – say one
requiring candidates in their State for US Senate to be 40 years of age –
instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts
have constitutional authority to hear the case.
5. How the Supreme Court violated the
"arising under" clause to hear cases they have no constitutional
authority to hear
Let's use "abortion" to illustrate the usurpation. Obviously,
"abortion" is not "expressly contained" in the
Constitution. So abortion doesn't "arise under" the Constitution; and
the constitutionality of State Statutes prohibiting abortion doesn't fit into
any of the other nine categories of cases federal courts have authority to
hear.
Accordingly, federal courts have no judicial power over it. The
Supreme Court had to butcher words in our Constitution in order to usurp power
to legalize abortion. This is what they did:
That's the "due process" clause. As Professor Berger points
out [ibid.], it has a precise meaning which goes back to the Magna Charta: it
means that a person's life, liberty or property can't be taken away from him
except by the judgment of his peers pursuant to a fair trial.
The Supreme Court redefined words in Our Constitution to
justify the result they wanted in the case before them.
The Supreme Court didn't "enforce" the Constitution – they butchered
it to fabricate a "constitutional right" to kill unborn babies.
And the lawyers said, "It's the Law of the Land"; the People yawned;
and the clergy said, "the Bible says we have to obey civil government –
besides, we don't want to lose our 501 (c) (3) tax exemption!"
6. What are the remedies when the
Supreme Court violates the Constitution?
2. In Federalist
No. 78 (6th para), Hamilton shows the Judicial Branch must rely on
the Executive Branch to enforce its judgments. If the President, in the
exercise of his independent judgment and mindful of his Oath to "preserve,
protect and defend the Constitution," determines that an opinion of a
federal court is unconstitutional; his Duty is to refuse to
enforce it. The President is also competent to decide whether federal
judges have violated the Constitution! Refusing to enforce their
unconstitutional judgments is his "check" on the Judicial Branch.
3. On the Right & Duty of the States – who created the federal
government when they ratified the Constitution – to smack down their
"creature" when their "creature" violates the
Constitutional Compact the States made with each other, see Nullification:
The Original Right of Self-Defense.
· The Judicial Branch was created by Art. III, §1,
US Constitution. Accordingly, it is a "creature" of the
Constitution. 1
· The federal government came into existence when the
States, acting through special ratifying conventions held in each of the
States, ratified the Constitution.2
Since the Judicial Branch is
merely a "creature" of the Constitution, it follows that it
is subordinate to the Constitution, and is completely subject to its terms.
It may not annul the superior authority of the States which created the
Judicial Branch when they ratified the Constitution; 3
and as a mere "creature" of the Constitution, it may NOT
change the Constitution under which it holds its existence! 4
2. Supreme Court Opinions are not "the Law
of the Land"
"The fundamental law,
or constitution, of a state or nation, written or unwritten; 5 that
law or system of laws or principles which defines and establishes the
organization of its government."
· The Declaration of Independence – 1776
· Articles of Confederation – 1777
· Ordinance of 1787: The Northwest Territorial Government
· Constitution of the United States – 1787
The Articles of Confederation was our first Constitution. It was
replaced by our Constitution of 1787 when it was ratified June 21, 1788. The
Northwest Ordinance was superseded by the transformation of the area covered by
the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].
Common Law - The
"common law" applied in courts in the English-speaking
countries came from the Bible.7 The
Bible has much to say about our relations with each other: don't murder people,
don't maim them, don't steal, don't bear false witness, don't tell lies about
people, don't be negligent, don't cheat or defraud people, and such. The Bible
provides for Judges to decide disputes between people and empowers Judges to
require the person who has violated these precepts to pay restitution to the
person whom he harmed. So, e.g., the Biblical prohibitions against bearing
false witness and
slandering people became our modern day concepts of slander, libel, and
defamation. These principles were applied in the English courts from time
immemorial, and are applied in American Courts. Modern day American attorneys
litigate these common law concepts all the time. So if I am representing a
client in an action for say, fraud, I look at the previous court opinions in
the jurisdiction on fraud, and see how the courts in that jurisdiction have
defined fraud – i.e., I look for "precedents" – the courts' previous
opinions on the subject – and I expect the Judge on my case to obey
that precedent. 8
THIS is the "common
law." It is "law" in the sense that it originated with God's
Word; and from "time immemorial" has been applied in the
Courts of English speaking countries. But this precedent is binding or persuasive only on courts.9 As
precedent for judges to follow, it is never "the law of the
land"!
So, keep these three categories – organic, statutory, and
common law – separate, and do not confuse court precedent with
the "Law of the Land." The latter is restricted to the Organic Law,
and statutes and treaties authorized by the Organic Law.
The ten categories of cases
the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl.
1, US Constit. 10
The first category is cases "arising under this Constitution."
In Federalist
No. 80 (2nd para), Hamilton shows these cases concern "provisions
expressly contained" in the Constitution. He then points to
the restrictions on the authority of the State Legislatures [listed at Art. I,
§10], and shows that if a State exercises any of those prohibited powers, and
the federal government sues the State, the federal courts would have authority
to hear the case (3rd & 13th paras).
So the purpose of
this category is to authorize the Judicial Branch to enforce the Constitution –
not re-write it!! 11
Now let's look at one way the Supreme Court butchered our
Constitution in order to strike down State Laws they didn't like.
The original intent of §1 of
the 14th Amendment was to extend citizenship to freed slaves and to provide
constitutional authority for the federal Civil Rights Act of 1866. That Act
protected freed slaves from Southern Black Codes which denied them God-given
rights. 12
Now look at §1 where it says, "nor shall any state deprive
any person of life, liberty, or property, without due process of law;"
But this is how the Supreme
Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at
the word, "liberty" in the due process clause and said,
"liberty" means "privacy," and "privacy" means
"a woman can kill her unborn baby." 13
And they claimed they had jurisdiction to overturn State Laws
criminalizing abortion because the issue arises under the
Constitution at §1 of the 14th Amendment! [ibid.]
The opinions of which the
convention lobby complains constitute violations of our
Constitution. 14 The
three remedies our Framers provided or advised for judicial violations of our
Constitution are:
1. In Federalist
No. 81 (8th para), Hamilton shows Congress can impeach and remove
from office federal judges who violate the Constitution. Congress is
competent to decide whether federal judges have violated the Constitution!Impeachment
is their "check" on the Judicial Branch.
Endnotes:
2 Art. VII, cl. 1, US Constit., sets forth ratification
procedures for our Constitution.
4 Madison's Journal of the Federal Convention of 1787 shows
that on July 23, 1787, the Delegates discussed who was competent to ratify the
proposed new Constitution. Col. Mason said it is "the basis
of free Government" that only the people are competent to ratify the new
Constitution, and
"...The [State] Legislatures have no power to ratify it. They
are the mere creatures of the State Constitutions, and cannot be greater than
their creators..."
Madison
agreed that State Legislatures were incompetent to ratify the
proposed Constitution – it would make essential inroads on the existing State
Constitutions, and
"...it would be a novel & dangerous doctrine that a
Legislature could change the constitution under which it held its
existence...."
It's equally novel & dangerous to
say that the Supreme Court may change the Constitution under which it holds its existence.
5 It is said England doesn't have a written constitution.
6 Acts of Congress which are not authorized by the enumerated
powers are void.They are not made "in Pursuance" of the
Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:
"...the laws of the Confederacy [the federal government], as
to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the
SUPREME LAW of the land; to the observance of which all officers, legislative,
executive, and judicial, in each State, will be bound by the sanctity of an
oath. Thus the legislatures, courts, and magistrates, of the respective members
[the States], will be incorporated into the operations of the national
government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS..."
[capitals are Hamilton's]
8 Art. III, §2, cl.1 delegates to federal courts power to hear
"Controversies between Citizens of different States." Much of the
litigation conducted in federal courts falls into this category. These lawsuits
aren't about the Constitution. Instead, they involve the range of issues people
fight about in State Courts: personal injury, breach of contract, business
disputes, fighting over property, slander & libel, etc. In deciding these
cases, federal judges are expected to follow the "common law"
precedents.
9 In Federalist No. 78 (next to last para),
Hamilton discusses how judges are bound by "precedents" which define
and point out their duty in the particular cases which come before them.
"...the...authority of the federal
...[courts]...is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the precise limits,
beyond which the federal courts cannot extend their jurisdiction..."
11 James Madison agreed that the purpose of the "arising
under this Constitution" clause is to enable federal courts to enforce the
Constitution. At the Virginia Ratifying
convention on June 20, 1788, he explained the categories of cases federal courts have
authority to hear. As to "cases arising under this Constitution," he
said:
"...That causes of a federal nature will arise, will be
obvious to every gentleman, who will recollect that the states are laid under
restrictions; and that the rights of the union are secured by these
restrictions. They may involve equitable as well as legal
controversies..."
"...This right of privacy, whether it be founded in the
Fourteenth Amendment's concept of personal liberty and restrictions upon state
action, as we feel it is ... is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy..."
14 Many Supreme Court opinions violate our Constitution.
Wickard v. Filburn (1942), discussed HERE, is another of the most
notorious. But we elect to Congress people who don't know our Constitution or
The Federalist Papers; and they are unaware of their Duty – imposed by their
Oath of office – to function as a "check" on the Judicial Branch by
impeaching federal judges who violate our Constitution.
© Publius Huldah
Norb Leahy, Dunwoody
GA Tea Party Leader