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Judicial tyranny: the ACLU and Justice Ginsburg’s inventions exposed!
American Constitutional Research Service ^ | 9/27/09 | John William Kurowski

Posted on 09/27/2009 4:40:15 PM PDT by JOHN W K

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 subjugate and overcome 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 the court to switch the subject from what is and what is not constitutional, 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! To do so is to usurp legislative authority and its prerogative, and ignore the separation of powers in our system of government.

For example, imaging for a moment that a black male was denied employment as a prison guard by a local state government based upon his race and the court, in spite of the 14th Amendment’s intended 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 progressives on the Court to ignore the intentions and beliefs under which our Constitution was adopted and impose their whims and fancies upon the people 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, with impunity, to ignore the documented intentions under which our Constitution was adopted and went on to impose its own ideas of social justice and court-ordered social reforms. Some of the important cases which demonstrate the Court’s assumption of legislative power by 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 very 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 subjugate 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.

In delivering the Court’s opinion in the Virginia Military Institute (VMI) case, 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 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 inherit, as was then enjoyed by white citizens. “Congress did not 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 include 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, and 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 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 but which never received the required number of ratifying States, if the 14th Amendment already prohibited discrimination based upon sex as Ginsburg alleges?

Bottom line is, our SC, including Justice Ginsburg, is acting in rebellion to our written Constitution and the documented intentions and beliefs under which it was adopted. Indeed, our Supreme Court is in fact "legislating from the bench" so as to impose its own visions and court ordered social reforms using a variety of tests which switch the subject of a law’s constitutionality, to a question of the lawmakers wisdom. 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 progressive friends on the Court.


Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events
KEYWORDS: 14thamendment; aclu; ginsburg; legislate; liberal; scotus

1 posted on 09/27/2009 4:40:16 PM PDT by JOHN W K
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Good post.

After reading the Federalist Papers, most of the Anti-Federalist Papers, Liberty & Tyranny, Men in Black and The Dirty Dozen I have reached a simple conclusion.

A piece of paper is not a guarantor of our rights.

2 posted on 09/27/2009 4:54:14 PM PDT by Jacquerie (We live in a Judicial Tyranny - Mark Levin)
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To: Jacquerie

Jacquerie: “A piece of paper is not a guarantor of our rights.”

Can’t be said often enough. It really doesn’t matter how reasoned the author’s opinion is. The fact remains. Ginsburg and her ilk are in positions of power and have the ability to do pretty much as they please.

As for the citizenry, most have absolutely no interest in constitutional law. So long as Ginsburg doesn’t press too hard, too fast, she can mold the constitution as she sees fit, and she does.

I don’t doubt she’s an intelligent woman who knows exactly what she’s doing. They KNOW they are twisting the law to achieve what they want. They have an agenda, and they are working toward it.

If we don’t like this, then we have to put a stop to it. Someone like Ginsburg couldn’t make it to the SCOTUS without liberals and mealy mouthed RINOs backing her. Yet, we keep electing them.

3 posted on 09/27/2009 5:04:42 PM PDT by CitizenUSA
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Bookmark & BTTT !!

4 posted on 09/27/2009 5:29:38 PM PDT by musicman (Until I see the REAL Long Form Vault BC, he's just "PRES__ENT" Obama = Without "ID")
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Formulas and tests of various kinds are integral to legal reasoning and cannot be rejected categorically. Being stated in general terms, constitutional provisions usually have to be interpreted by courts so as to give them meaning in specific factual contexts.

Over the course of time, courts developed rules to guide search and seizure decisions. Track the decisions back far enough, and one commonly finds a mix of legal and political history and legislative and constitutional intent as the basis for the tests and formula that courts rely on.

5 posted on 09/27/2009 5:42:52 PM PDT by Rockingham
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To: CitizenUSA

>Yet, we keep electing them.

I’m not sure that’s true. Not anymore. There’s ACORN, that whole fiasco w/ Minnesota and recounts, and several observations of my own state.

6 posted on 09/27/2009 5:44:21 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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Thanks for post.

7 posted on 09/27/2009 5:51:45 PM PDT by Bhoy
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To: Jacquerie
Exactly. But I do believe the people are begining to wake up and reclaim their constitutionally limited system of government!


If we can make 51 percent of America’s population dependent upon the federal government for its subsistence, (Obamacare) we can then bribe them for their vote, keep ourselves in power and keep the remaining portion of America’s productive population enslaved to pay the bills ____ Our Washington Establishment’s Marxist game plan, a plan to establish a federal plantation and redistribute the bread which labor and business has earned.

8 posted on 09/27/2009 6:03:48 PM PDT by JOHN W K
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Something that may push us over the edge is the criminal element called “undocumented aliens” that they’re trying to force upon us.

If nothing else causes a “refreshing of the Tree of Liberty” response, this should.

9 posted on 09/28/2009 4:20:37 AM PDT by plsjr (<>< ... reality always gets the last vote.)
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To: Bhoy
It is a very interesting subject for those who are willing to do a little research.

It is simply amazing how tests invented by progressives on the Supreme Court have, over the years,replaced determining whether or not a specific law is in harmony with the documented intentions under which our Constitution was adopted. Whether or not a specific law is within the four corners of the Constitution and Congress’s delegated powers now takes a back seat to whether progressives on the court think the law is “rationally based“ or, “reasonable”, or whether the law has a “compelling state interest” which the Court may arbitrarily agree with and give it its blessing.

This is similar to the House of Lords which our founding fathers objected to when writing our Constitution. Under the English system there was no written constitution other than that which was in the minds of the House of Lords and it was subject to change at their mere whim and fancy. In addition, this is also similar to the Basic Law of Israel! After listing a number of rights which the people of Israel are supposedly entitled to, No.8 of the BASIC LAW OF ISRAELdeclares:

“There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required”

So, the rulers of Israel in their Basic Law have, just as our own Supreme Court has, usurped a power to ignore the people’s enumerated rights and also ignore defined and enumerated delegated powers by cleverly “interpreting” the laws to meet their own progressive and self interested purposes.


At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results and as Benjamin Franklin emerged from the long task now finished asked him directly, `Well, Doctor, what have we got? A republic or a monarchy?' `A republic, if you can keep it,' responded Franklin.

10 posted on 09/28/2009 9:22:51 AM PDT by JOHN W K
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