March 2018
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The Role of the Supreme Court

The United States Constitution is a contract between the states giving the national government only limited and enumerate powers. (Most are found in Article One, Section Eight.) The Constitution is unique in that its creators recognized that rights are God-given and it is the function of government to protect those God-given rights. As with all contracts, it should always be interpreted as to the original meaning and intent.   If you buy something and sign a contract as to the payments, you don’t expect the terms to be changed. So it is with our Constitution.

But that has been greatly undermined by decisions of the Supreme Court.

Although Chief Justice John Marshall has been touted as a Supreme Court icon, his role has been less than desirable. In 1816 he made a ruling which was clearly a breach of constitutional limitation on congressional power. His ruling was based on the fallacy that “… let the end be within the scope of the Constitution, and all means which are appropriate … which are not prohibited but consistent within the letter and spirit of the Constitution …”   In other words, the federal government can do anything the Constitution does not specifically bar it from doing. This has set a precedent that has been destructive to our freedoms ever since. Example, because the Constitution doesn’t specifically say that the government can’t dictate medical care or that it can’t round up all people who pledge allegiance to the flag and put them in detention camps, it is entitled to do so.

Another departure is what is known as The Elastic Clause, which gives Congress the power “To make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested in the Government of the United States, or any department or officer thereof.” This has been misconstrued to apply to any and all things considered to be “proper” totally ignoring the part that says that it applies “to the foregoing powers and all other powers vested “ – only the enumerated powers, but nothing more. The enumerated powers are the specific things listed in the Constitution that the states authorized the federal government to do.

Why would those who formed the Constitution list what the government could do if, according to adherents of Marshall’s philosophy or the “Elastic Clause”, government could do anything it wants?

And likewise, are those who use the “Welfare Clause” which authorizes Congress to “provide for the common Defense and general Welfare.”   The definition of welfare is key. At the time of the writing of the Constitution it meant that Congress was to arrange for the conditions throughout the nation that would allow every citizen to prosper. In no way did it mean government handouts.

It is generally believed that it is the function of the Supreme Court to “interpret the Constitution.” But actually it is their role to determine whether or not a law is constitutional. More often than not, they should declare it unconstitutional and send it back to the states or the people.

The first sentence of the Constitution clearly states that “All legislative powers herein granted shall be vested in a Congress of the United States.“ Since all legislative powers are granted exclusively to Congress, none are given to the Judiciary. (For that matter that also applies to the President.)  Yet we are all too familiar with the many court rulings that are, in fact, the equivalent of a law.

Then, too, there is the disregard for the Constitution when it comes to Treaty Law.   The often heard “treaty law supersedes the Constitution and is the law of the land” is quite simply – NOT TRUE. What the Constitution states is that treaties that are pursuant to the Constitution are the law of the land. “Pursuant to the Constitution” makes the difference.   Only those treaties that are consistent with the terms of our Constitution are the law of the land.

One of the arguments used to promote a constitutional convention/Article V convention et al, which is a very risky measure, is that it is the only way to rein in the overreach of the Supreme Court. But, once again, that is not so.

Although we hear that “The Supreme Court Justices serve life terms,” more accurately, they only serve at the pleasure of Congress which has the responsibility, when needed, to impeach, try and remove them from office.

And, in another opinion, Marshall proclaimed that the Supreme Court would have the final say on what is constitutional and what is not. But this ignores constitutional checks and balances. .

One way that Congress can check the Supreme Court rulings is to exercise the power of the purse and refuse to fund their unconstitutional rulings. An example would be their ruling on ObamaCare. It is clearly unconstitutional; health care is clearly not listed as an enumerated power in the Constitution.  But government cannot carry out any actions supporting ObamaCare without funds.

Another way that the Constitution provides checks and balances in regard to the Supreme Court is that of limiting their jurisdiction of any particular matter. Article lll, Section 2 states that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” A majority in the House and Senate could have prevented the court from ruling on such matters as housing, congressional district makeup, education, energy production and all other unconstitutional measures.

Then there is State Nullification. If a state should determine that a federal law is invalid because it steps outside the boundaries of the Constitution, then that state can determine that the law is invalid.

Those who disagree cite what is called the Supremacy Clause, which they interpret to say that federal law is supreme over state law. But, what does that clause say? Article Six, paragraph two states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the land. The unknowing – or perhaps deliberately misleading – contend that this clause says that U S law trumps state law. “Thereof” refers to the Constitution. Thus laws are to be made in pursuance to the Constitution. What about “shall be made in Pursuance”? Pursuance means following or in keeping with. Thus only those laws that are in keeping with the Constitution are the supreme law of the land. Those not in keeping with the Constitution are not valid laws. In order for them to be constitutional they must be found in the enumerated powers – those that are allowed and listed.

Whereas it is true that states cannot pick and choose which federal laws they choose to obey, the litmus test is whether the law is constitutional. And, who is to say what is constitutional? The states. It was the states that formed the contract that spells out the rules. If a law is found within the listed powers in the Constitution, then it is constitutional. That power was ceded by the states to the federal government. But, if a law is not found in the listed powers, powers that were not ceded, then it is unconstitutional and the Supremacy Law does not apply as trumping state laws.

Any law that abridges the right to keep and bear arms falls into the same category. The Constitution specifically prohibits Congress from making laws that infringe on the right to keep and bear arms. Any such law – or judicial ruling or executive edict – is unquestionably unconstitutional and does not have supremacy over state laws.

The better question would be: When does federal law trump state law? It is clear that it does so only when the federal law is constitutional, i.e., when it is found in the enumerated powers.

What can be done? Inform the electorate in order to elect members of Congress who will honor their oath of office and rein in the Supreme Court.

By Sue Long

The Committee for Constitutional Government, Post Office Box 972, Gloucester, VA 23061













Constitutional Corner: Birthright Citizenship – Yes or No?

On Tuesday night, August 18th, Fox’s Bill O’Reilly interviewed presidential candidate Donald Trump and immediately challenged Trump’s position that illegal immigrants must be deported. O’Reilly stated “the 14th Amendment says that if you’re born here you’re an American and you can’t kick American’s out.” “Even if you wanted to try,” continued O’Reilly, “each and every one is entitled to due process and that would take decades, that would cost gazillions of dollars and the courts would block you at every turn. You must know all that.”

Trump answered calmly “Bill, I think you’re wrong about the 14th Amendment.”

O’Reilly then offered to read the Amendment and repeated: “If you’re born here you’re an American, period – Period!”

Trump responded: “Many lawyers are saying that’s not the way it is….[The lawyers] are saying [the idea of anchor babies] is not going to hold up in court. It’s going to have to be tested.”

Who’s right? O’Reilly or Trump?

Since the Trump interview I received a couple of queries on this subject, so here goes.

At issue is Section 1, Clause 1 of the 14th Amendment, which states: “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.” (emphasis added)

Why was Clause 1 even necessary?

Prior to 1868, when the 14th Amendment was ratified, citizenship was a singular concept: you were a citizen of your state of residence and each state individually defined its citizenship and naturalization requirements. National citizenship was assumed to be an extension of state citizenship, if it was considered at all.

In the Dred Scott decision of 1857, Chief Justice Roger Taney announced that any person descended from Africans, whether slave or free, was not a citizen of the United States and thus did not possess the legal standing to bring suit in a federal court. With the successful ratification of the 13th Amendment in 1865 freeing the slaves, Congress realized that they should now be entitled to enjoy the rights of citizenship but lacked that status in the eyes of the Court. States could and did continue to deny their freed slaves citizenship. This gave birth to the 14th Amendment.

The debate and modification history of the 14th as it made its way through the Congress shows there was much difference of opinion as to what the Congressmen were trying to accomplish with the amendment as a whole as well as what we now call its “Citizenship Clause.” TheHeritage Guide to the Constitution has a nice summary of the “wordsmithing” that went on and I won’t take the time to repeat the details.   It all comes down to what is called the “jurisdiction clause.”

The proposed amendment began life without the “jurisdiction clause,” but when it emerged from the Joint Committee on Reconstruction it contained the clause and that was the version sent to the states for ratification (I’m going to ignore here all the sordid history concerning the supposed “ratification” of the 14th Amendment, as well as the immense damage done to the Constitution through the Court’s contrived “Incorporation Doctrine,” based in the 14th. Both these issues are discussed in my Constitution Seminar if you are interested in the detail).

What does “and subject to the jurisdiction thereof“ mean? The record shows that the Congressmen were clearly were trying to exclude native Americans from automatic U.S. citizenship — they were considered citizens of their tribal nation. But who else?   Children born in America to foreign diplomats and children born to unnaturalized aliens were the other two categories to be considered.

The case of children born of foreign diplomats has been made clear by the courts: such children are not automatically U.S. Citizens because their parents are clearly not subject to the full jurisdiction of the United States. That leaves the children of un-naturalized aliens, whether in the country legally or illegally.

In 1898, the Supreme Court ruled in United States v. Wong Kim Ark, 169 U.S. 649 (1898), that by virtue of the first clause of the 14th Amendment, a person born in the United States becomes a citizen of the United States at the time of birth, if any of the following criteria are met. The person must:

  • Have parents that are subjects of a foreign power, but not in any diplomatic or official capacity of that foreign power, or
  • Have parents with permanent domicile and residence in the United States, or
  • Have parents that are in the United States for business.

The first criteria listed above would, on its face, seem to include the case of illegal immigrants but the specifics of the Wong case argue otherwise: Wong Kim Ark’s parents were in the United States legally.

The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment.[1] The present administration, however, has been operating as though this is the interpretation.

So, Bill O’Reilly is entitled to his opinion that this is an open and shut case. But Donald Trump is right to say that this is “going to have to be tested [in the Courts].”

I find nothing in the Founders’ view of law and government, or the Constitution itself which suggests that birthright citizenship should be extended to children whose parent or parents have broken the law to gain entry into this country, or any country An amendment which was originally intended to right one of the wrongs of slavery has been used I our time to undermine our national integrity, our national sovereignty, the rule of law and to push us ever closer to the progressives’ “utopia” of borderless nations. I’m with Trump on this.

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[1] I recognize the irony of citing a Court that in recent opinions (ex: Burwell v. King, Obergefell v. Hodges) has rendered its “judgement” increasingly irrelevant. There is at present a long-overdue move in the United States to put SCOTUS opinions in their proper perspective relative to God’s natural and revealed law, as Blackstone proposed so long ago.