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Why Supreme Court opinions are not the 'Law of the Land,' and how to put federal judges in their place
By Publius Huldah
November 15, 2018
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:
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"
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.
Black's Law Dictionary defines "organic law" as "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 organic laws of the United States are
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?
Black's Law Dictionary defines "statute law" as the
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.
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?
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 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.
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.
5. How the Supreme Court violated the "arising under" clause to hear casesthey 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:
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;"
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.
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 Supreme Court redefined words in Our Constitution to justify the result theywanted 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?
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 "Creature" is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson's draft of The Kentucky Resolutions of 1798 (8th Resolution).
2 Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.
3 Madison's Virginia Report of 1799-1800 (pp 190-196).
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
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:
7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.
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.
10 In Federalist No. 83 (8th para), Hamilton says:
13 In Roe v. Wade (1973), the Supreme Court said under Part VIII of their opinion:
© Publius Huldah
November 15, 2018
Thanks, NeverTrumpers. Are You Happy Now?
By Brian C. Joondeph
NeverTrump Republicans have been rabidly obsessed since 2015 to prevent Donald Trump’s nomination, election, and having failed, to join the left in nonstop criticism and condemnation of President Trump. They may be succeeding, but to what end? As they look around at the current political landscape, are they truly happy with the direction of the country? Or is that irrelevant, as long as they can strut around on their high horse, feeling smug, telling each other “I told you so”?
The NeverTrump movement began shortly after Trump announced his candidacy for the presidency. So-called “principled Republicans” were incensed that a loud-mouth from Queens, a TV reality star, a host of beauty pageants, someone never before elected to public office, should challenge the Republican establishment orthodoxy.
His tweets and straight talk were unacceptable. Calling out the media and his political opponents ran against the grain of how they thought Republicans should handle themselves in a presidential campaign. Trump did not follow the proper and acceptable savoir faire of John McCain or Mitt Romney, two prominent NeverTrumpers. The fact that both lost their elections to an easily defeatable far-left candidate who damaged the country badly during his eight-year reign of “fundamentally transforming America” seems to be lost on Trump’s GOP critics.
The NeverTrump names are familiar. Aside from the two noted above, there are others, all one-time Republicans, although their conservative beliefs have been tossed out the window over political expediency or ego. George Will, Max Boot, Steve Schmidt, Bret Stephens, Jennifer Rubin, and anyone with the last name of Bush. There are many in Congress too – Paul Ryan, Jeff Flake, Ben Sasse, Bob Corker, and others.
Some of them left the party, with great fanfare, securing regular bookings on CNN and MSNBC to trash Trump and his deplorable supporters. They were puzzled why every Republican didn’t leave the party. They hoped for electoral success for the Democrats, the same political party they once criticized. After the midterm elections, they should be ecstatic.
By historical standards, Trump and the Republicans did well in the 2018 midterms. The number of House seats lost was comparable to Ronald Reagan in his first midterm election, and far less than Bill Clinton or Barack Obama lost in their first midterms. Republicans actually gained Senate seats, or so it seemed on election night.
Slowly but steadily the election is being overturned. Republican victories on election night are either being contested or have already been overturned, a week later morphing into Democrat victories. Funny that. Were any election night Democrat victories overturned a week later due to the miracle of uncounted or provisional ballots? Election thievery, similar to deep state justice, seems to go in only one direction.
The Senate majority, assuming it holds, is a slim one, with no certainty of holding the Republican coalition together given the whims of NeverTrumpers Murkowski, Collins, and a resurrected John McCain in the form of Senator Mitt Romney. Will the next Supreme Court nominee be easily confirmed or will one of them channel their inner McCain, strolling into the Senate chamber with his or her thumb pointed downward?
As Mrs. Clinton said after her electoral surprise two years ago, “What Happened?” There are many answers, but much lies at the feet of NeverTrumpers, particularly those in Congress. How many Senators and Representatives believed the Russian collusion hoax, invented by Obama and dutifully reported by the media to the point where they were expecting that Trump would either resign or be impeached before he served one year in office? How many Republicans chose to retire at the end of this Congress, choosing to not go down with what they perceived as a sinking Trump ship, rather than keep their safe incumbent seats, and therefore the House majority?
Trump’s signature issues on the campaign trail were immigration and healthcare. He promised to “Build the wall” and “Repeal Obamacare”. Yet he could do neither alone. Both required the assistance of Congress, which was lacking despite these issues being the primary reason Congress was in Republican hands.
Congressional leaders balked at funding a border wall, instead choosing to fund Planned Parenthood. The “skinny repeal” of Obamacare crashed and burned when NeverTrump Senator No-Name figuratively gave President Trump the middle finger, but almost literally gave the Senate vote counter a thumbs down, killing the repeal.
Was Congressional resistance over policy? Perhaps a little was but most was simply a NeverTrump poke in the eye to the president and his agenda. Not only legislatively did NeverTrumpers hurt their party, but also in giving a reason for the Trump base to not turn out as they did in 2016. The Washington Post looked at turnout by party for the past few elections.
In the 2014 midterms, 4 million more Republicans voted than Democrats. In 2018 it was the opposite, as the chart below demonstrates. In addition, in 2018, Democrats turned out 79 percent of their 2016 presidential election voters, compared to only 75 percent for Republicans. Turnout wins elections, but Trump voters may not have turned out to vote for those shouting “NeverTrump!” Despite Trump’s involvement in the midterm campaigns, he wasn’t on the ballot, but members of Congress were.
Source: Washington Post
In my local Congressional district, Rep Mike Coffman was a NeverTrump Republican; his main campaign message was how he would “stand up to President Trump”. How did the midterms turn out for him? Perhaps GOP voters stood up to Mike and sat the election out, since both he and his Democrat opponent were NeverTrump.
In 2016, Coffman won 192 thousand votes, earning reelection compared to 160 thousand votes for his Democrat opponent. In 2018, he only received 146 thousand votes while his Democrat opponent won 184 thousand votes. The Democrat won this year, but with fewer votes than Coffman received 2 years ago. Instead, Coffman only garnered only 76 percent of the votes he received just 2 years ago. How much was due to his NeverTrump stance?
Nationwide, Republicans stayed home last week. As this chart from the Washington Post demonstrates, 13 states had Democrat vote counts surpassing 2016. Republicans didn’t come close to their 2016 vote counts in any state.
Perhaps voters delivered a message for NeverTrumpers in Congress. If you oppose our President, we oppose you. Democrats will oppose Trump but at least they are honest about it. Retiring Speaker Paul Ryan never missed an opportunity to criticize the President, most recently saying he "knows nothing about" birthright citizenship. In other words, if both choices, the Democrat and the Republican are anti-Trump, why bother voting?
NeverTrump commentators didn’t hold back either. Max Boot said, “Donald Trump is the worst person ever to be president.” George Will called Trump, “A sad, embarrassing wreck of a man.” Steve Schmidt, who ran McCain’s losing presidential campaign said, “I left the Republican Party. Now I want Democrats to take over.”
Well boys, you have your wish. The party you once were a part of is now in the hands of Nancy Pelosi, Maxine Waters, and Adam Schiff. Your one-time conservative goal of smaller government, a conservative judiciary, and freedom and liberty for all is heading to the waste bin of history. Thanks to your constant haranguing you will instead enjoy illegal immigration, sanctuary cities, identity politics, mob harassment, and a paralyzed Republican president.
Your resistance to everything and anything Trump is coming home to roost. Open borders will shift the electoral demographics a permanent shade of blue, the electoral college soon out of reach of any conservative Republican presidential candidate. NeverTrumpers who once revered Reagan, through their myopic pettiness, have given us Kyrsten Sinema and Alexandria Ocasio-Cortez as the new faces of the Democrat Party.
All because you don’t like Trump’s tweets or how he revoked drama queen Jim Acosta’s press pass. Thanks a lot.
Brian C Joondeph, MD, MPS, a Denver based physician and writer. Follow him on Facebook, LinkedIn and Twitter.
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Local government foils evil terrorist entrepreneurs once and for all
November 15, 2018
Dorado Beach, Puerto RicoTens of thousands of years ago, humankind was practically an endangered species.
Our early proto-ancestors had little means to protect against the harsh elements or defend against terrifying predators.
And finding enough food was a constant challenge.
Tribes of humans would roam from place to place, foraging for whatever they could eat until they had exhausted nature’s resources… and then be forced to move on to a new location.
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And the idea that early humans were champion hunters is largely myth; we were scavengers for the most part, nibbling scraps off dead animal carcasses that had already been picked clean by predators higher up the food chain.
It was hardly a sustainable way to live.
Then everything changed around 10,000 years ago.
Our ancestors discovered that they could plant seeds in the ground and grow their own food. LOTS of food– far more than they could eat.
And that excess food could be invested– to support the labor of other members of the tribe to develop better tools and build structures… or to trade with other tribes for their surplus foods.
It was the first time ever that human beings enjoyed a regular surplus, where they could consistently produce more than they consumed.
I call this the Universal Law of Prosperity: consistently producing more than you consume.
And if our early ancestors had not discovered this simple principle, we would likely all still be squatting in the wilderness.
The Universal Law of Prosperity applies to everyone equally– whether proto-humans, modern day individuals, nation states, businesses, etc.
And it’s easy to understand: if you spend more than you earn, sooner or later you’re going to run into serious trouble.
We talk about this a lot in our regular conversations– there are so many violations of this principle everywhere you look.
Some of the most popular companies in the world these days burn through cash, consistently spending far more than they earn.
Governments are in debt up to their eyeballs, blowing trillions of dollars on programs they cannot afford.
And too many individuals are living way beyond their means, consuming far more than they produce.
In most of the West– and ESPECIALLY in the Land of the Free– the entire system is designed for consumption.
Think about it: the United States is easily one of the best places in the world to be a consumer.
US consumers can buy almost anything they want. They have access to the finest brands, the best restaurants, the largest malls and markets.
They can order anything online and get same day delivery. Soon drones will float down from the heavens to deliver boxes straight to their doorsteps.
And there is no shortage of banks and finance companies willing to step up and offer US consumers endless quantities of debt.
After all, why bother saving up for anything when you can indulge now and push off the consequences into the future?
Yes, the United States has consumption down to a science. And sadly this has become the most critical component of the US economy.
Economists fret over how much consumers spend during the holiday season; as they say, ‘the US consumer drives the economy.’
That’s kind of a pathetic statement. No one ever says the US producer drives the economy. Or the US entrepreneur drives the economy.
That’s probably because governments make it harder and harder to be productive.
One ridiculous example is Louisville, Kentucky– where hardworking entrepreneurs are being punished for the egregious crime of selling food to hungry people.
They’re specifically targeting mobile food trucks– the guys who sell hot dogs and burgers on the street.
A few years ago Louisville’s local government tried to ban them altogether, but lost in a lawsuit.
Now the city has recently put forth new rules requiring mobile food trucks to relocate at least 250 feet every TEN MINUTES.
And they would only be allowed to operate during daylight hours… forced to shutter when the sun goes down like some bizarre zombie apocalypse.
I can just imagine what nefarious entrepreneurial terrorist plot these do-good bureaucrats think they’re foiling with such heavy regulations.
And I’m sure the fine citizens of Louisville will sleep easier knowing that the sweet sound of the Ice Cream Man will fall silent at sundown.
Another example– just last week, the New York Police Department raided multiple apartment buildings, issuing 27 citations for suspicion of Airbnb rentals.
Well it’s about damn time these vile criminals were brought to justice.
Imagine the nerve of some owners who actually felt entitled to rent out their own private properties to supplement their incomes in one of the most expensive cities in the world while simultaneously providing cost effective lodging options for out-of-town travelers.
I truly hope that world leaders can come together in a new Coalition of the Willing to defeat this evil scourge once and for all.
It’s the same everywhere you look.
Want to start a business? File a bunch of forms, apply for permits, deal with bureaucracy.
As we’ve talked about before, most states in the Land of the Free require absurd and costly licensing requirements for even simple occupations like being a locksmith or house painter.
That’s the whole point: it’s easy to consume… difficult to produce.
It’s easy to go into debt. It’s difficult to save.
(Just think– how much does your bank pay in interest? 0.03%? Even if you’re lucky enough to be productive and save money, the return is pitiful.)
All this is literally the opposite of what it takes to create prosperity.
This isn’t rocket science. If everything in the system favors consumption over production, debt over savings, it’s pretty easy to see where that trend eventually leads.
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Lessons Taken from the Recent U.S. Election MessOriginal here.By Wallace Bruschweiler & William Palumbo
Another November, another Election Day debacle. Leave it to the State of Florida to once again (think Bush v. Gore) expose the severe shortcomings of the American election system. Though, to be fair, it isn’t only Florida; Arizona and Georgia are also in the proverbial “big soup” this time around.
The point of this article is not to systematically condemn the American election system, nor detail its deficiencies. As any observer is painfully aware, there are legal, partisan, and political reasons why the system remains – basically – broken. Nor shall we evaluate any contemporary claims of voter fraud; for these arguments will be lost and won by an army of lawyers, sent from D.C. to the states which have bungled yet another political election.
For the sake of both completeness and brevity, listed below are some broad complicating factors of the U.S. electoral system:
A Look around the World
With the notable exceptions of Australia and the United Kingdom (two English-speaking countries), each one of the above countries requires a form of identification to be presented by the voter. With the exception Japan, voter turnout is significantly higher in these countries than in the United States (25-35%). Countries with compulsory voting – Australia and Brazil – unsurprisingly have the highest voter participation – 90% and 79% respectively.
Furthermore, the authors searched for recent examples of voter fraud in these countries, and were unable to find any eminent instances. Unlike the United States, which has had multiple prominent election problems that have made international news, a comparable example among the countries analyzed cannot be readily identified. Indeed, a U.S. level of election shenanigans seems to be reserved for what we typically call a “banana republic.”
A Divided Country, Embarrassed on the World Stage
Ever since the Greeks invented democracy in ancient times, societies have been voting. From a technological standpoint, it is a very basic procedure. Even Iraq, practically ravished by wars since the 1980s, votes using a straightforward and understandable process: ink on the index finger identifies each one who has cast a vote.
Not only do contested and contentious elections further exacerbate an already divided country, but they are a black mark on the reputation of the United States on the international scene. Allegedly the leading country in the world today, it is almost impossible, for our allies and foes alike, to comprehend how we cannot even master a task so simple as a routine election.
Perhaps instead of sending two opposing battalions of lawyers to litigate the vote counting, it is time for meaningful reform that addresses both voter participation and the integrity of each and every vote.
CONGRATULATIONS to the FLORIDA GOP - Governor Elect Ron DeSantis, Senator Elect Rick Scott, Congressman Daniel Webster & All who Won Their Races TONIGHT!!!!
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Photo(s) of the Week
President Trump gives a hug and kiss to Jordan McLinn who suffers from muscular dystrophy before signing the “Right to Try Act.” This is OUR PRESIDENT! #RightToTryAct
A Significant Crisis
FBI & DOJ?
Quote of the Week
"Once again, it is incredible how Obama and the progressive liberals, with the help of mainstream media can so easily convince the American people that a lie is the truth and the truth is a lie. In fact, it would be dazzling if it weren't so disturbing." Plundered by Michael S. Coffman, Ph.D.
“No war is over until the enemy says it’s over. We may think it over, we may declare it over, but in fact, the enemy gets a vote.” --General James Mattis
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