One of the Supreme Court‘s “inventions” used to impose its will upon the people unknown to those who framed and ratified our Constitution, are various tests the court has created which are now used to circumvent and set aside the documented intentions and beliefs under which the various provisions of our Constitution have been adopted.
These “tests” began to appear and gain a foothold during the Warren Court of the l960’s. One such test was the “rationality” test under which a law being challenged had to withstand the court’s judgment that the law in question was “rationally based” or “reasonable” to survive the court‘s review. Of course, this allowed specific members on the court to switch the subject from what is and what is not constitutional during litigation, to a question having nothing to do with its constitutionality. Whether rational or not, a law which violates the Constitution cannot be justified as being constitutional if it is rationally based! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the legislature or our Constitution! To do so is to usurp legislative authority and ignore the separation of powers in our system of government, not to mention how such action negates the very reason for elections, which, in most cases, is to change public policy via appropriate legislation.
For example, imaging for a moment that a black male was denied employment by a state government based upon his race and the court, in spite of the 14th Amendment’s limited protection against state imposed race discrimination, upheld the denial of employment because the local government presented an “exceedingly persuasive justification” for not hiring the black male. This is what these tests are about, creating a platform for members on the Court to ignore identifying and enforcing the intentions and beliefs under which provisions our Constitution were adopted and impose their personal whims and fancies upon the people as the rule of law using flowery terms and phrases to justify ignoring the will of the people as expressed in a written Constitution!
By the early 1970’s the Court using a variety of invented “tests” [rationally based, compelling state interest, intermediate scrutiny, strict scrutiny, etc.], started to appear which blatantly ignored the documented intentions and beliefs under which various provisions of our Constitution were adopted, and went on to impose a majority of the Court’s own ideas of social justice, fairness and reasonableness as the rule of law. Some of the early cases which demonstrate the Court’s attack upon the text and documented legislative intent of our Constitution’s provisions which gives context to its text, and imposing its will as the rule of law using these newly created tests are Reed vs. Reed 404 U.S. 71 (1971), Frontiero vs Richardson 411 U.S. 677 (1973), Craig v. Boren 429 U.S. 190 (1976), and Roe v. Wade, 410 U.S. 113, (1973).
It is also important to note that the ACLU and Ruth Bader Ginsburg, who was a volunteer for the American Civil Liberties Union in the 1970’s, were both active in these cases and assisted the court in engineering clever words and phrases in conjunction with “tests” which were designed to parse words and circumvent the very intentions and beliefs under which the 14th Amendment was adopted.
When Ginsburg became a member of the Supreme Court the ground work had already been laid with her help in establishing these despotic tests as part of the Court’s arsenal used by its progressive members to make the Constitution mean whatever they wished it to mean.
For example, in delivering the Court’s opinion in the Virginia Military Institute (VMI) case, decided June 26, 1996, which commanded the Institute to accept women by citing the 14th Amendment as forbidding sex discrimination, Ginsburg pointed to previous Supreme Court rulings and the invented tests in question, and asserted a party seeking to uphold government action making a distinction based upon sex must establish an “exceedingly persuasive justification” In addition, Ginsburg noted, “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”
But the fact remains, Ginsburg, in delivering the opinion, never established that under the 14th Amendment the people of America decided to prohibit distinctions based upon gender in addition to their intentional prohibition against state legislation based upon “race and color”! And, the fact remains, Justice Ginsburg couldn’t establish this constitutional prohibition (sex discrimination) because time and again during the debates which framed the 14th Amendment the intended prohibition against discrimination was specifically identified as being limited to discrimination based upon “race, color, or former condition of slavery”, and only intended to apply in a very narrow area and protect the inalienable right of Blacks: “to make and enforce contracts, to sue…to inherit, purchase…property as was then enjoyed by white citizens. “Congress did not assume…to adjust what may be called the social rights of men…but only to declare and vindicate these fundamental rights.”___ see the Civil Rights Cases, 109 U.S. 3,22 (1883)
The argument that the wording in the 14th Amendment: (a)“all persons”, (b)“No State shall make any law which shall abridge the privileges or immunities of citizens of United States.”, [c] “[N]or deny to any person within its jurisdiction the equal protection of the laws”, as being evidence the 14th Amendment was intended to forbid distinctions based upon sex, or intended to be a universal rule to bar every imaginable type of discrimination, such as in Martin vs. PGA Tour and also includes discrimination based upon sex, falls flat on its face when reading the words of next Amendment to the Constitution!
This Amendment (the 15th) prohibits a new type of discrimination not covered by the 14th Amendment! It prohibits discrimination, or to be more accurate, prohibits the right of voting to be denied or abridged on account of “race, color, or previous condition of servitude.” The intent of the 15th Amendment clearly being to enlarge the intended prohibition on state legislated race based discrimination mentioned in the 14th Amendment, enlarging it to include the prohibition at the voting booth —forbidding discrimination at the voting booth to be based upon “race, color, or previous condition of servitude“, while gender, and in particularly females, were not yet included in the protection.
The argument that the 14th Amendment prohibits state discrimination based upon gender, becomes even weaker when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America decide by a constitutional amendment to forbid gender discrimination [the discrimination mentioned by Ginsburg] but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”
If the 14th Amendment prohibited every kind of discrimination, including discrimination based upon sex as Ginsburg alleged in the VMI Case, then why were these subsequent Amendments added to the Constitution after the adoption of the 14th Amendment?
Finally, why would there have been a proposed and so-call equal rights amendment attempted to be added to the Constitution of the United States in the 1980’s to prohibit sex discrimination which never received the required number of ratifying States, if the 14th Amendment already prohibited discrimination based upon sex as Ginsburg alleges?
The bottom line is, many of our judges and Justices, including Justice Ginsburg, are acting in rebellion to our written Constitution and the documented intentions and beliefs under which it was adopted. Indeed, many of our judges and Justices are in fact “legislating from the bench” so as to impose their personal sense of justice, fairness and reasonableness using a variety of tests which, during litigation, switch the subject of a law’s constitutionality, to a question of the lawmakers wisdom, reasonableness, fairness and/or justice. And to meet the Court’s standards a law must be “reasonable“ and reflect what progressives on the Court arbitrarily fancy as social justice.
In fact, a questioned law to pass Ginsburg’s test, must have an “exceedingly persuasive justification” and “The justification must be genuine, not hypothesized or invented post hoc in response to litigation”, regardless of whether or not the law is within the four corners of our Constitution which no longer appears to be an important factor to Ginsburg and her tyrannical friends on the Court who wish to impose their personal whims and fancies as the rule of law.
“The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.” – Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968