Free Republic

Subtitle: A Judicial Mess. The Framers considered and rejected a policy-making role for the Scotus. Despite James Madison’s repeated efforts, the federal convention defeated his attempts to attach the Scotus to the Executive Branch through a Council of Revision. Rufus King of Massachusetts noted that judges must “expound the law as it should come before them, free from the bias of having participated in its formation.” As if lawmaking by courts didn’t pose enough dangers to free government, what of the extreme danger of dressing up feel-good social justice in the drag of rights? The late Judge Robert Bork summed...

Over the next few squibs I will show why Scotus has no Constitutional business fabricating rights. As opposed to its assumed authority to invent rights, it is instead duty-bound to defend the Constitution. Like the rest of the Bill of Rights, the Ninth Amendment deserves equal protection from the Scotus. Despite this presumption, Scotus has generally interpreted the Ninth Amendment in a manner that denies the sovereign people’s prerogative to assert the rights that Scotus is Constitutionally bound to accept.1 Background. Thanks to the assurances of James Madison and other Federalists, the draft Constitution made its way unscathed through a...

This squib goes hand-in-hand with my two earlier posts that made the case for an annual Article V state convention, here and here, to defeat both an out control administrative state and runaway scotus. My vision is a regular convention that will examine in detail the past year’s congressional statutes, regulations issued under the auspices of the president, as well as supreme court decisions. Those that infringe upon our liberty can, if recommended by the convention, be repealed or overturned by thirty-eight subsequent state ratifying conventions or state legislatures. What prompted me was the outrageous Obergefell v. Hodges scotus decision...

Subtitle: A Judicial Mess. The Framers considered and rejected a policy-making role for the Scotus. Despite James Madison’s repeated efforts, the federal convention defeated his attempts to attach the Scotus to the Executive Branch through a Council of Revision. Rufus King of Massachusetts noted that judges must “expound the law as it should come before them, free from the bias of having participated in its formation.” As if lawmaking by courts didn’t pose enough dangers to free government, what of the extreme danger of dressing up feel-good social justice in the drag of rights? The late Judge Robert Bork summed...

Subtitle: Black-Robe Disease. The only “living Constitution” is one that is followed; a Constitution whose text is ignored is a dead one.1 Standing over and looking down at the remains of the US Constitution, retired Associate Justice Anthony Kennedy recently admitted in an interview why he provided the fifth vote in Obergefell v. Hodges. “It seemed to me just wrong that under the Constitution, over 100,000 adopted children of gay parents could not have their parents married. I just thought this was wrong.” Well, there you have it. Kennedy admitted an open secret; he let his passions rule his reason...

Over the next few squibs I will show why Scotus has no Constitutional business fabricating rights. As opposed to its assumed authority to invent rights, it is instead duty-bound to defend the Constitution. Like the rest of the Bill of Rights, the Ninth Amendment deserves equal protection from the Scotus. Despite this presumption, Scotus has generally interpreted the Ninth Amendment in a manner that denies the sovereign people’s prerogative to assert the rights that Scotus is Constitutionally bound to accept.1Background. Thanks to the assurances of James Madison and other Federalists, the draft Constitution made its way unscathed through a rough...

There is a new argument that progressives are cooking up, consider this a warning. Be prepared. In Original Intent and the Framers' Constitution, the following is written: (page 268) Oddly enough, those who advocate a constitutional "jurisprudence of original intention" and assert that the Constitution "said what it meant and meant what it said," are the ones who most vigorously deny content to the Ninth Amendment and to the concept of a "living Constitution." Presumably, they would not swear fealty to a dead Constitution, not even to a static one of the sort endorsed by Chief Justice Roger Taney in...

Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." What was the original purpose of these two Amendments? The Tenth Amendment is pretty self explanatory, but the Ninth Amendment is often viewed as more nebulous and vague, having very little real or relevant meaning. The truth of the matter is that the two Amendments were intended...

Vice President Joe Biden may have exposed an unconstitutional flaw in the health care bill when he said under his breath to President Obama, "This is a big fu%*#g deal." Biden's naughty comment provided late-night TV hosts with an unlimited number of comic implications pertaining to the public "getting screwed." Nonetheless, an argument can be made that the Supreme Court has already decided that the health care bill is unconstitutional. Please let me explain. First some background on the Ninth Amendment of the United States Constitution.  The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall...

BIRMINGHAM -- Freedom. That's the main thrust of the campaign Jack Kevorkian says he is pushing in his bid to unseat incumbent U.S. Rep. Joe Knollenberg, R-Bloomfield Hills. Kevorkian held a community roundtable Friday night at the Birmingham Community House on Bates Street. Kevorkian, who is running as an independent, faces Knollenberg and Democrat Gary Peters in the November election. Famous for his legal battles involving assisted suicide, Kevorkian spoke to a small group of people, quoting Thomas Jefferson, Bernard Shaw and Benjamin Franklin. "I'm not doing this for personal gain É I'm here to educate and inform the public,"...

One reason that Roe v. Wade is still with us is that legal scholars and jurists argue about the wrong issue. The question isn’t whether the Constitution contains any reference to a right to privacy. Let’s assume it does. Let’s assume that the Ninth Amendment, as argued in Griswold v. Connecticut and some other cases, implicitly refers to the right to privacy every human being has. Why would this be relevant? Some might argue that if one has the right to privacy, a woman who has an abortion is doing something private, something no one else has the authority to...

No Clause for Celebration USA -- In its recent decision upholding the federal government's authority to pluck marijuana from the hands of desperately ill people who use it as a medicine, the U.S. Supreme Court noted in passing that "most domestic drug regulations prior to 1970 generally came in the guise of revenue laws." That's a puzzling fact if, as the Court now insists, the power to "regulate Commerce...among the several States" includes the power to ban certain plants and their products from backyards and dresser drawers throughout the nation. As the Court explained, the Marihuana Tax Act of 1937...

E-mail Author Author Archive Send to a Friend <% printurl = Request.ServerVariables("URL")%> Print Version February 25, 2005, 8:45 a.m. How To Be a Hero of LibertyYou may have to gild the lily . . . EDITOR'S NOTE: This article appears in the March 14, 2005, issue of National Review. When historian Doris Kearns Goodwin was accused of plagiarism, Laurence Tribe rushed to her defense. The Harvard Crimson had published an editorial demanding that Goodwin resign from Harvard's board. Tribe, a professor of constitutional law at Harvard Law School, wrote a letter to the Crimson criticizing its editorial as "utter...

From Powers to Rights, a Conservative Vision -- Clearly, the American debate began with rights--with the protests that led eventually to the Declaration of Independence. And in that seminal document, Jefferson made rights the centerpiece of the American vision: rights to life, liberty, and the pursuit of happiness, derived from a premise of moral equality, itself grounded in a higher law discoverable by reason--all to be secured by a government of powers made legitimate through consent. But when they set out to draft a constitution, the Framers focused on powers, not rights, for two main reasons. First, their initial task...

We've all heard about "taking the Fifth." Heck, we only need watch the bureaucrats testifying about their wrongdoings for instructions on how that works. They'll use their Fifth Amendment, and any trick they can think of, to keep from telling the truth, the whole truth and nothing but the truth. Well, "taking the Fifth" is not just reserved for those in government. Citizens also (usually) have a right against self incrimination. In fact, American citizens can use a whole host of such "protections," if they learn to exert their Constitutional authority. For instance, the Ninth Amendment states that: "The enumeration...

We've all heard about "taking the Fifth." Heck, we only need watch the bureaucrats testifying about their wrongdoings for instructions on how that works. They'll use their Fifth Amendment right, and any trick they can think of, to keep from telling the truth, the whole truth and nothing but the truth. Well, "taking the Fifth" is not just reserved for those in government. Citizens also (usually) have a right against self incrimination. In fact, American citizens can use a whole host of such "protections," if they learn to exert their Constitutional authority. For instance, the Ninth Amendment states that: "The...

The The Bill of Rights Preamble Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine. THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.RESOLVED by the Senate and House of Representatives of the...

IF YOU FEEL THAT MY CASE IS DESERVING OF NRA'S ASSISTANCE (WHICH IT IS UNDER THE RULES OF THE NRA'S CIVIL RIGHTS DEFENSE FUND) PLEASE CONTACT HORALD VOLKMER, DIRECTOR, NRA CIVIL RIGHTS DEFENSE FUND AT NRA HQ IN FAIRFAX, VA.