Invented tests used by our Supreme Court to circumvent our Constitution


#1

In 1803 Chief Justice Marshall wrote: ”The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?” ______ MARBURY v. MADISON, 5 U.S. 137 (1803)

Unfortunately, our Supreme Court has found a clever process to circumvent both the text, and legislative intent of our constitution as it was expressed during its framing and ratification debates … debates which give meaning and context to our Constitution’s text. During this process the very limits agreed to by the people in a written constitution are set aside and replaced with the arbitrary whims and fancies of the Court’s majority, which is then asserted to be the rule of law, but in effect is judicial tyranny. The mechanics of this subversive process is very interesting to study.

One of the Supreme Court‘s methods used to set aside the limits of our constitution are various tests the Court has invented which were unknown to our Founders. These “tests” began to appear and gain a foothold during the Warren Court. One such test [e.g., see Loving v. Virginia, 1967] was the rational based 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 allows the Court’s members to switch the subject from what is and what is not constitutional, to a subjective question having nothing to do with the constitutionality of the law.

Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.

For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.

Keep in mind our wise Founders provided Article V, our Constitution’s amendment process, to change our constitution’s commands and upgrade it to accommodate changing times. And unlike a renegade majority cabal on our Supreme Court ignoring our Constitution’s text and legislative intent, and imposing its personal whims and fancies as the rule of law, our Constitution’s amendment process requires consent of the governed by the limits outlined in Article V, when and if a defect is alleged to be found in our Constitution and change is required.

By the early 1970’s the Court using a variety of invented “tests” [rationally based, compelling state interest, intermediate scrutiny, strict scrutiny, etc.], effectively began to hand down majority opinions which were not based on the text and the documented intentions and beliefs under which our Constitution was adopted. The Court, using this new “test” process to validate its opinions, began to impose its own subjective ideas of social justice, fairness and reasonableness as the rule of law and without regard to the true intent and meaning of our Constitution.

Some of the important cases which demonstrate the Court’s assumption of legislative power by second guessing the wisdom of legislation using these newly created tests are Reed vs. Reed 404 U.S. 71 (1971), Frontiero vs Richardson 411 U.S. 677 (1973), and Craig v. Boren 429 U.S. 190 (1976).

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 inventing clever words and phrases in conjunction with “tests” which were designed to replace our Constitution’s meaning, and in particular the 14th Amendment, with the personal feelings of what the Constitution should mean as believed by a majority of the Court’s members.

In each of these cases the limits of our Constitution were ignored and replaced with the personal and subjective views of Justices as being the rule of law, rather than enforcing the Constitution’s actual text and legislative intent as expressed during its framing and ratification debates.

The bottom line is, for our system to work and evolve as intended by our Founders, and when judges and Justices sincerely believe our Constitution, or a legislative Act, is an affront to their personal sense of fairness, reasonableness or justice, they should express these feelings in minute detail, but go on to explain their job is limited to establishing the true meaning and intent of our Constitution, while Article V is the proper method for change. For judges and Justices to ignore these limitations and impose their personal feelings as the rule of law, is to violate a Public Trust and engage in judicial tyranny.

JWK

“If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”___ Justice Story


#2

How our Court has perverted the meaning of Due Process found in our Constitution.

Another method used by our judges and Justices to circumvent our Constitution and impose their personal feelings as the rule of law is a corrupted use of our Constitution’s guarantee to “due process”. Note that our Constitution guarantees due process by the Fifth and Fourteenth amendments.

Amendment V

“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 offence 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.”

Amendment XIV

Section 1
”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, what is due process of law within the meaning of our Constitution? If we move onto Amendment VI it indicates what “due process” involves.

Amendment VI

”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

In effect, due process of law refers to procedure and the administration of justice in accordance with specific rules intended to prevent the use of arbitrary power by government. Unfortunately the limited and intended guarantee to Due Process of law [rules governing procedure to prevent an abuse of government power] has been distorted and turned on its head to include an oxymoron called “Substantive Due Process”, a phrase not found in our federal Constitution.

Under “substantive due process” the Court ignores procedural rights and puts on trial legislative acts by second guessing the wisdom of law in accordance with the Court’s personal abstract opinions of fairness, reasonableness and justice ___ a subjective view having nothing to do with procedure rights intended to protect against the abuse of power by government.

To put this another way, currently, the Court, using substantive Due Process, does not determine the constitutionality of a law. Instead, it assumes legislative authority and fashions existing laws in accordance with its own personal predictions and beliefs, even though there is no constitutional basis to strike a law down or uphold it. Of course, the proper way to address laws which are constitutional but thought to be unfair, unreasonable or an injustice, is our Constitution’s Article V amendment process which involves consent of the governed and the reason and choice of the people.

What is most disturbing about the Supreme Court’s use of “substantive due process” ___ a term nowhere to be found in our Constitution ___ it is one of the vehicles used by the Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by our written Constitution. In many instances, Supreme Court majority opinions are nothing more than a reflection of the majorities’ personal views of justice, fairness, and reasonableness, in addition to being political in nature ___ two relatively recent glaring example being homosexual marriage and abortion, and neither subject matter being within the Supreme Court’s jurisdiction.

JWK

“[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness” Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)