I’ve Never Said This Before – But It’s Time For You To Start Buying Guns and Ammo

Now before you label this as a “crazy” post, I’m not talking about, nor am I predicting, some doomsday scenario. Don’t expect me to be selling you seeds, food preserves, or bomb shelters anytime soon. That is not what I am suggesting here.

I’m also not suggesting that you need to buy yourself an AR15 to fight off an on-slot of newly married gays. Okay? Okay. So please do more than glance at this headline, and allow me to make my case.

What I am suggesting is that this past week, in two monumental rulings, the SCOTUS has showed us that they are no longer bound by, nor do they hold any respect for, the United States Constitution. For guns, that matters.

The SCOTUS has now declared all healthcare, and marriage, to be fundamental human rights. So much so that it is now the job of the federal government to force them upon both you as an individual, and the state as law. Now, I don’t see either of these things in the United States Constitution.

Crazy thing about the Constitution is that it actually does outline our rights, pretty expressly. As a matter of fact, one could argue that it’s the purpose of the document. Enumerated and all that jazz. Healthcare and gay marriage… isn’t in there. You know what is? Your right to own a gun.

As a matter of fact, according to the Constitution, that is one of the very few rights in which the states are not reserved the right to regulate entirely as they see fit. In case you haven’t read it, let me paste it for you below.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Pretty cut and dry. Yet unlike marriage, unlike subsidized health Insurance, SCOTUS has allowed states to, in fact… INFRINGE! Hell, some states have made it pragmatically impossible to carry a weapon on your person. So clearly, when it comes to even using the Constitution as a guideline, the SCOTUS has jumped the shark.

Regardless of where you line up on same-sex marriage, or even if you personally want free healthcare, there is no arguing that the SCOTUS has displayed an unprecedented use of power when compared to the entirety of American history. There’s also no argument about the fact that the SCOTUS is leaning more and more to the left.

The left has been very, very clear on their ambitions to make guns harder and harder to access. For all citizens. Not just criminals. We know their playbook. I’m not saying that your guns will be taken away tomorrow, but that is the end-game.

What is beyond any shadow of a doubt, however, is that the SCOTUS has now been given the power to infringe on your right to bear arms. They could come down with some ruling next June requiring guns to be limited to some arbitrary loading capacity, rendering all of your firearms illegal. I’m not saying that they will; but for the first time in our adult lives, this is entirely within the realm of possibility.

We also have already witnessed the great ammo shortage of 2008-2013. Pragmatically speaking, the SCOTUS has myriad ways in which they could – should they choose – systematically disarm American citizens; but equally important is the way the market responds to SCOTUS decisions. The tides are turning on guns. It’s a losing issue for Democrats, so they could never address it head-on. They could, however, enforce what would seem to be a very marginal gun law, which could in turn force firearm companies to change their procedures (be it manufacturing, distribution, etc.), causing a shortage, raising prices and making it nigh impossible for you, the American citizen, to purchase a firearm.

So if for any reason, you’ve ever wanted to buy a firearm but haven’t gotten around to it, I highly suggest that you do so soon. Because at the very least, we are in uncharted territory as Americans; and it’s better for you to have made your decision now than to be on the outside, banging on the door to get in.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

Obergefell v. Hodges: Illegitimate, Unlawful, And A Fraud On The American People

There is simply no other way to say it.

The Supreme Court’s decision today redefining marriage to include couples of the same sex is wholly illegitimate and unlawful. A nullity. Worthy only to be disobeyed.

Anyone who says otherwise — that the rule of law requires recognition of same-sex marriage — is committing a fraud. And any State official — like Governor Robert Bentley of Alabama — who says that his oath of office requires unconditional obedience to the Supreme Court’s mandate to issue same-sex couples licenses to marry is mistaking his oath to the Constitution as if it were an oath of absolute obedience to five justices who happen to be sitting on the nation’s highest court.

As Chief Justice Roberts in dissent has described the action taken today:

“Five lawyers have closed debate and enacted their own vision of marriage as a matter of constitutional law.  Stealing this issue from the people ….”

And just who are these lawyers? Justice Scalia reminds us that they are all educated at either Harvard or Yale, from the east- and west- coasts, not from the vast middle of the country, and not a single one an evangelical Christian or a Protestant, and then observes:

“The strikingly unrepresentative character of the body voting on today’s upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.”

Indeed, from the outset of his bare majority decision, Justice Kennedy did not even act like a judge. Rather, he wrote as if he were an existentialist philosopher seeking the meaning of life, as if the “liberty” protected in the Constitution was a personal quest “to define and express [one’s personal] identity.”

But the Constitution is not some philosophical work written by Jean Paul Sartre. Rather, it is a political and legal document designed by America’s founders to secure the unchanging God-given rights to life, liberty, and property which are deeply rooted in the 18th century soil of the nation. Justice Kennedy showed no regard for these fixed principles, opting for an evolutionary approach to law — asserting that the existential definition of marriage changes with changing times.

However, the very purpose of our Constitution is, as Chief Justice John Marshall wrote in Marbury v. Madison, to make “permanent” those principles that the people desired. And, so that those principles would not be “mistaken or forgotten,” the people committed them to writing. Thus, Marshall wrote: “it is the province and duty for the courts to say what the law is,” not to make it up as we go along.

As today’s dissenting Chief Justice observed, “[t]hose who founded our country would not recognize the majority’s conception of the judicial role”:

“They after all risked their lives and fortunes for the precious right to govern themselves.  They would have never imagined yielding that right on a social policy to unaccountable and unelected judges.  And they certainly would not have been satisfied by a system of empowering judges to override policy judgments so long as they do so after ‘a quite extensive discussion.’”

And, as the capstone of his dissent, the Chief Justice concluded: “the Constitution. It had nothing to do with it.” In those nine simple words, Chief Justice Roberts explained why this decision of the Court is not law. If the Constitution had nothing to do with it, the Court had no jurisdiction to issue it. It is, therefore, a nullity.

In the words of Justice Felix Frankfurter, a brilliant jurist who understood the dangers of hubris on the highest court in the land — may Obergefell v. Hodges prove to be a “derelict on the waters of the law.” And it will be — but only if the American people rise up and resist this gross perversion of the rule of law.

Approximately one month ago, the U.S. Justice Foundation began to organize the writing and publication of a series of articles in a series entitled “Building the Resistance to Same-Sex Marriage.” This project was undertaken in the hope that the Supreme Court would not recklessly decide the same-sex marriage case–but nonetheless, we prepared for the worst; and sadly, the Supreme Court has disappointed us again. Hopefully over the coming weeks and months, state and local government officials and the people at large will be able to draw from these articles justification and techniques to resist the Supreme Court’s lawless decision.

In Article II, we established that the Fourteenth Amendment in no way addressed the issue of same-sex marriage. In Article III, Robert Reilly explained how poorly these cases have been litigated by government lawyers supposedly defending same-sex marriage. In Article IV, Pastor James Taylor explained the biblical and moral basis for traditional marriage. In Article V, Houston attorney J. Mark Brewer anticipated how courts will manipulate today’s rulings to penalize those in business and the professions who embrace biblical marriage. In Article VI, former Congressman John Hostettler explained that if a soldier has the duty to disobey an unlawful order, how could a state official not have that same duty? In Article VII, former federal magistrate Joe Miller discussed why it would be a violation of federal law and judicial ethics for Justices Ginsburg and Kagan to participate in the decision–yet both did so today.

In Article VIII, Pastor Matthew Trewhella provided a historical context for Christian resistance by lower government officials to illegal actions by higher government officials, known as “The Doctrine of the Lesser Magistrate.” In Article IX, we discussed the apparent efforts of the Supreme Court to bury the motion for recusal filed by the Foundation for Moral Law so that Justices Ginsburg and Kagan could more easily disregard their duty. In Article X, constitutional attorney Edwin Vieira explained how decisions like today’s decision violate the Constitution’s “good behavior” standard, leaving them susceptible to removal. In Article XI, former U.S. attorney Tom Ashcraft laid out the process by which Congress can limit the jurisdiction of federal courts, using the power Congress was expressly given in the U.S. Constitution. In Article XII, Senior Virginia Delegate Robert G. Marshall discussed how Congress could immediately use the Appropriations Power to prevent implementation of an unlawful decision such as that issued today. And lastly, in Article XIII, former Oklahoma Representative Charles Key described the responsibility and duty of every citizen, when serving on a jury, to decide both the facts and the law in every case, known as jury nullification.

This series of articles has demonstrated that a Supreme Court decision mandating same-sex marriage would be illegitimate. As Blackstone said, it would not just be bad law; it would be no law at all. That decision has now transpired. These articles also demonstrate that the American people and our elected officials have many ways to resist the unconstitutional decision of the Court. The question now is, will our political leaders abandon the true Constitution to embrace the decision of the Court?

In the coming days, we will continue to be releasing articles further discussing the justification for and techniques that can be used by Congress, state officials, and the American people to resist today’s unlawful decision. We urge supporters of traditional marriage to view today’s loss as a setback, but by no means a final decision of anything. The battle continues.

 

Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together, they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at traditionalmarriage@lawandfreedom.com or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

‘We the People’ Have The Final Say On Same-Sex Marriage — Not Judges

Although it seems strange now, at the time of the nation’s founding, it was not uncommon for the U.S. Supreme Court to both conduct trials and hear appeals. In the very first jury trial conducted by the U.S. Supreme Court, State of Georgia vs. Brailsford, Chief Justice John Jay gave the following instructions to the jury:

“It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision…you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

These instructions from the first Chief Justice of the United States, and a co-author of the Federalist Papers, demonstrates the historically correct role and power of juries. The Court did not grant to the jury the right to determine both the fact and that law; it simply recognized the juror’s right which it still has today. However, judges today want to restrict juries to deciding matters of fact, and claim for themselves the final authority to decide matters of law. Persons have even been arrested for handing out literature near a courthouse explaining to potential jurors their true role and great power.

As many awaited the SCOTUS opinion on same-sex marriage, attention was increasingly directed to the ultimate source of power and authority in our American System of government – “We The People.” As activist judges and courts continue to operate outside of their constitutionally limited role, the role that citizens serve, as jurors and electors, becomes more important and focused.

The power of the individual citizens is probably at its zenith when they serve on a jury. As jurors, they literally have the power to affect an individual’s life forever, including up to death. The Framers of our system of government viewed the jury as being of supreme importance in defending individual liberty against government abuse.

“I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” Thomas Jefferson

There are only 14 words describing freedom of speech and freedom of the press in the Constitution. But there are 186 words describing trial by jury in the Constitution. It is guaranteed in the main body in Article 3, Section 2, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently — a total of three times — or has as many words devoted to it. It is clear, because of historical evidence, that the Founders viewed the jury as the most important institution, since it gave birth to and defended all other rights. It should also be noted that trial by jury and jury rights were common law rights at the time of the drafting of our founding documents, the Declaration of Independence and the Constitution, and so are also included as rights retained by the people under the Tenth Amendment.

Juries meet by the thousands each week and month all over the country. As such, they constitute one of the largest and most powerful agencies of law enforcement in the United States. They have the absolute — and permanent — power to ignore government laws, keep people out of prison, ignore judges and prosecutors, make the outcome of any jury trial what they want it to be, and try and keep our government honest. In the absence of overt wrongdoing, such as bribery, their decisions cannot be called into question.

The important vital role and power of the jury predates our Constitution. Since 1215, when the Magna Carta was signed, and throughout American history, there has been no more fundamental principle of English or American constitutional law than the right to a jury trial. And in a jury trial, it is not only the right but the duty of juries to judge the facts of a case, the intent of the accused, and the law(s) being applied in the case.

It is also their right, and their duty, for jurors to judge whether the law is just, and to hold the law invalid if, in their opinion, it is unjust or oppressive, and to hold all persons innocent if they violated the law, or innocent for resisting the execution of such laws. This fact about the jury has been attacked in modern times by those who promote the “evolving constitution” viewpoint. This liberal philosophy turns on its head the concept of individual liberty and requires an elite political class to guide and direct the rest of society.

Even so, the court in modern times continues to recognize the broad role of the jury.

“The jury has an unreviewable and irreversible power to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.”  U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972

“If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence.”   United States v. Moylan, 4th Circuit Court of Appeals, 1969

The jury’s role is much more than just another check and balance in our system of government. America’s founders intended it to be the final political institution that would protect our rights from government abuse and encroachment.

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.”  Justice Byron White, Duncan v. Louisiana (1968)

“The purpose of a jury is to guard against the exercise of arbitrary power.”  Justice Byron White, Taylor v. Louisiana (1975)

The duty of a juror to protect a defendant against abuse from the government was much better understood in colonial times than it is today. Consider the 1735 case of Peter Zenger in the colony of New York. Zenger was the publisher of the New York Weekly Journal and was tried for seditious libel for printing articles exposing the corruption of the royal governor. The Zenger case has been referred to as the most important trial in American history because the jury in this case established the rights of freedom of speech and of the press in America by nullifying the seditious libel law which made it a crime to criticize public officials. In the case, the judge proclaimed that truth was not a defense. In acquitting Zenger, the jury exercised its right, power, and duty to nullify a law it believed to be immoral, unfair, and unjust. Andrew Hamilton, Zenger’s attorney, argued jury nullification directly to the jury and gave his opinion of the law to the jury in direct opposition to the instruction of the trial judge. Today, a lawyer who told a jury the truth – that they have the power to disregard a grand jury indictment, the words of the prosecutor, and the instruction of the judge by acquitting a man they believed to be unworthy of punishment – would be charged with, and tried for, contempt of court.

The landmark English case of William Penn and William Mead in 1670 is one of the other greatest trials in the history of jury trials. Penn (who later came to America and established the great Commonwealth of Pennsylvania) and Mead were tried in 1670 for violating the Conventicle Act by preaching to an unlawful assembly at Gracechurch Street. Through the Conventicle Act, the king made the Anglican Church the official church and religion of England. In their trial as in most trials today, the jury was given the following instruction by the judge: “The court is the judge of the law and you will accept the law as I give it you. You the jury are the judge of the facts. If it is determined that the defendants have violated the law, and they have so admitted you must find them guilty.”

The facts were clear that Penn and Mead violated the law as they admitted. Even so, the jury acquitted them — against the judge’s instruction — and they paid a heavy price. The Conventicle Act was nullified by the jury’s “not guilty” verdict, which infuriated the judge. One of the jurors, Edward Bushell (the only Quaker on the jury panel), and another juror, Thomas Veer, led the jury that acquitted Penn and Mead. The jurors were locked in a room with no food, water, toilet facilities, terrible stench, and unsanitary conditions; eight of the jurors gave in and paid their fines. But Bushell, Veer, and two others refused and were jailed for nine weeks in a prison that was referred to as ‘Hell above ground’ while they appealed their case to Court of Common Pleas. The court finally ruled in a surprising decision of reversal which established many of the rights in our Constitution that Americans take for granted today. This case led to the abolishment of the practice of punishing juries for verdicts unacceptable to courts.

The Zenger and William Penn cases were within living memory of many of the Founders and within common knowledge of all of them. But juries also refused to convict defendants charged in connection with other laws they believed to be unjust such as prohibition laws, including the Fugitive Slave Law and the Navigation Acts.  The king’s response to the Navigation Act was to abolish trial by jury. (Would our modern-day Courts or Executive Branch go that far?)

The American Framers knew that panels of average citizens were best equipped to judge the morality of the law in its application to a particular case. Juries have an important political benefit for legislators and society because they send an important peaceful message in a routine and institutionalized way that change in law is needed. The jury has been referred to as a safety valve that tempers, through mercy, the mechanical application of rigid rules or power used as coercion. And it is an antidote for victimless crime laws.

Opponents continue to try diminishing the role of juries. Periodically, they even float the ridiculous argument that juries should be eliminated altogether. But claims of chaos, anarchy, inconsistent or unjust verdicts, and repealing law are unfounded. Studies show that people take their responsibility as a juror as seriously as other major life decisions.

Jury nullification poses no threat that juries will punish a defendant beyond what the law allows because jury nullification doctrine acts in the direction of mercy only. Juries have no power or ability to create new charges. In addition, a judge can direct a verdict of acquittal, but not of conviction, if the court determines at the end of the trial that the evidence is insufficient to warrant jury deliberations. The court as a matter of law may also set aside a conviction or grant a new trial where the verdict is not supported by evidence, and the defendant can appeal a guilty verdict because it is final; but the government cannot appeal an acquittal.

Mark Howe, in Juries As Judges Of Criminal Law, Harvard Law Review (1939), examined early American cases. He concluded that jury nullification poses no threat to the reasonable doubt standard. It is clear from the language in court opinions that the Americans intended jury nullification to work only in the defense of liberty and not to the aid of the government. “The purpose of the rule [is] the preservation of civil liberties against the undue bias of judges.”

Based on my time serving in the Oklahoma House of Representatives, I can say with some conviction that no matter how unpopular or silly laws may be, legislators seldom go back and correct their mistakes without great prompting. While it is within the proper role of the legislature and electorate to pass laws, it is within the proper role of the jury to veto the application of a law which the jury finds to be oppressive. Just as state governors may veto, both the Senate and the House have vetoes, and the judges have the veto of judicial review, then the citizens who are asked to live under the laws and apply them also have a veto when they serve on juries.

Occasionally, a critic will concede the power of the jury to nullify the law but deny its right to do so. This is mere semantics because there is no practical difference between an unreviewable power and a right. Moreover, the Zenger case and the Founders refer to jury nullification as a “right.” Our Constitution clearly states that “We the People” created the Constitution, and therefore it follows that the people are sovereign. A sovereign people have the inherent right to judge the law when they come together on juries to decide cases.

Much of the historical discussion of jury nullification has been in the context of criminal cases. That is because the purpose of jury nullification is the protection of constitutional rights. In the past, the issue between the individual and government typically took place in a criminal trial. In the early years of the federal courts, it was not unusual even in civil cases to inform jurors that they could judge the law. Now, with the rise of civil asset forfeiture, jury nullification applies with equal validity to civil cases where the government is in contest against the individual.

Oklahomans in 2004 passed an amendment to our state constitution by a margin of 76 percent to 24 percent that defines marriage to be between a man and a woman. A Federal Judge claimed to have the power to “strike down” our state’s duly enacted law. Oklahomans are not sitting idly by. We know that judges do not have the right to “strike down” laws which have been duly passed and that are fully within the purview of the state. Oklahomans will address the issue again.

But citizens can push back against such tyranny as they serve on jury panels. For example, let’s say you are called to jury duty; and in the trial before you, prosecutors have charged a local baker for not providing a cake for a same-sex marriage ceremony, which violates a local law. Your dilemma is that you disagree with the law. You believe that business owners should be able to choose who they do business with just as customers do. Or you may have other reasons you disagree with the law or its application in the case. The judge, and possibly the prosecution, will likely instruct jurors that they must find the baker guilty if it is clear he broke the law. But based on the application of jury nullification as outlined above, you are free to cast your vote as “not guilty.” And you do not have to reveal or justify your decision – it is personal and private.

We need to realize that the increasingly totalitarian bent of those entrusted with governmental power are finding a way around jury nullification. They are working to vest power in administrative agencies to levy huge fines without the right to a jury trial. For example, a $130,000 fine has been recommended by an Oregon state administrative judge to be levied and paid by a family bakery business for a violation of the Oregon civil rights law. The offense? Refusing on the basis of Christian religious conviction to make a cake celebrating “same-sex marriage.” The award was based upon an administrative hearing, not on a verdict after a trial by jury in a court. The recommendation is now before an Oregon Labor Commissioner who, according to recent investigative reports, has been exchanging e-mails with LGBT activists in a cooperative effort to shape and implement the state’s civil rights act forbidding businesses from discriminating on the basis of sexual orientation.

Such actions by unelected bureaucrats are exposing the constitutional weakness inherent in administrative agencies, which combine legislative, executive, and judicial power. At the time the Constitution was written, the melding of those powers was considered the definition of tyranny. Now, it is the order of the day. A wonderful expose of the modern administrative state was recently published by Columbia Law Professor Philip Hamburger, Is Administrative Law Unlawful? His book demonstrates that the modern administrative state traces its roots to the king’s prerogative courts in England, such as the Court of Star Chamber. In England, the King’s Court of Star Chamber was abolished in 1641; but it has returned with a vengeance in modern America.

Many in government are troubled by the jury because it cannot be controlled and it has the power to stop government oppression. According to every state constitution, the Declaration of Independence, and the U.S. Constitution, political power is inherent in the people; and whenever government becomes destructive or lawless, it is the right of the people to alter or abolish it. Thus, the jury is of utmost importance in all of its functions–but specifically because the people are sovereign. Thomas Jefferson said this about the importance of citizen juries:

“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.  The execution of the laws is more important than the making of them.”

One of the characteristics that has made America great is that each individual state stands independent from the others in determining public policies. Efforts to force all Americans to live or think the same way are both mistaken and doomed for failure. As judges and prosecutors try to force unjust or unpopular laws and their penalties on citizens, juries offer a very important and reasonable solution by bringing a verdict of not guilty. Juries deliver a peaceful means to provide balance in society, correct government overreach, and rescue their fellow citizens. Today, people are needed as much as any time in history to embrace their role as jurors to preserve liberty and our American system of government.

 

Charles Key served as a member of the Oklahoma House of Representatives from 1986-1998 and 2006-2012, representing a district in Oklahoma City. He can be reached at traditionalmarriage@lawandfreedom.com.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

Supreme Court Is NOT The Ultimate Arbiter Of The Constitution

SCOTUS is NOT the ultimate arbiter of the Constitution; the STATES hold that power. How does it make any sense that one part of the federal government holds the authority to determine the power of the whole?

It makes no sense; and as a matter of fact, James Madison told us that in no uncertain terms:

“…that the ultimate right of the States, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature.” Virginia Assembly Report 1800

However, that is exactly what has happened with Chief Justice John Roberts’ opinion in King v. Burwell. It seems that the Supreme Court has forgotten that we are a Constitutional Republic–and that the Constitution is the Supreme Law of the Land, not Congress. Interestingly, all you need to know about the King v. Burwell decision is contained in the second-to-last paragraph of the majority opinion. Consider these words:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.”  (emphasis mine)

IF we were a democracy, as Roberts is asserting, this opinion would be absolutely correct–Obamacare would result from an absolutely lawful use of federal power, and we would have no real argument to make. However, we are NOT a democracy. We are a Constitutional Republic. In a Constitutional Republic, the Legislature is NOT unlimited in its power and authority. Article 6, clause 2, The Supremacy Clause, makes it perfectly clear that there is a hierarchy to the federal system and that the Legislature is NOT on top; the Constitution is the Supreme Law of the Land.

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;…shall be the supreme Law of the Land.”

When Roberts says, “But in every case we must respect the role of the Legislature, and take care not to undo what it has done,” he is asserting that whenever the Legislature makes a law, we are bound by it without question. Nothing could be further from the truth. According to the Supremacy Clause, we have an obligation to undo what Congress has done if what they are doing is not “made in pursuance” to the Constitution.

Additionally, if the “Laws of the United States” are not made in pursuance to the Constitution, then they cannot legally exist. To allow Legislative Acts contrary to the Constitution to remain law would elevate the Congress ABOVE the Constitution, destroying the Constitution itself and transmuting the nature of our Republic into an Oligarchy.

There is no specific enumeration in the Constitution for the federal government to provide healthcare to the States or the people. There is only errant interpretation of clauses to justify such an exercise of power.

Because there is no specific enumeration for healthcare, the Tenth Amendment makes it very clear that healthcare is not a power to be exercised by the federal government.

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.” (emphasis mine)

But what does Roberts use to justify this federal encroachment? Not a clause from the Constitution, but an opinion by the Supreme Court, Marbury v. Madison. How convenient that the Supreme Court can write opinions that declare themselves the ultimate rulers of the universe and then be allowed to credibly use those opinions to justify their emperor-like behavior! Ironically, the most important role of the Supreme Court is to make sure that the Congress acts within its Constitutional limitations. But since it is ridiculous to believe that any entity of power would act on its own to limit itself, our framers didn’t trust these federal employees with that task. They trusted the States.

Madison declares in 1789 that the STATES are to be the ultimate control against the expansion of federal power, the greatest opponents to the federal government necessary to preserve the Liberty of the people:

“The State legislatures will…be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty.” House of Representatives 1789 (emphasis mine)

But, when the States REFUSE to live up to their obligations and allow any branch of the federal government to expand power and limit the people and the States, they are simply declaring that they believe we are not a Constitutional Republic, but instead a Federal Kingdom built of 50 colonies subject to the whim of the feds.

Justice Roberts told the States in the original PPAC opinion:

“We look to the States to defend the their prerogatives by adopting the simple expedient of not yielding to federal blandishments when they do not want to embrace federal policies as their own. The States are SEPARATE AND INDEPENDENT SOVEREIGNS. Sometimes they have to act like it.” (emphasis mine)

We are not a democracy. We are a Constitutional Republic, where the federal government is limited by specifically enumerated powers. It is time for the States to ACT like States, instead of cowering like colonies. It is time for the States to fulfill their obligation to be the SURE GUARDIANS OF THE PEOPLES’ LIBERTIES.

It is time to dethrone the Supreme Court. It is time to STAND for the Constitutional Republic and defy this theft of State Power and destruction of the Constitution.

Healthcare is NOT a specifically enumerated power delegated to the federal government. The exercise of that power is therefore contrary to the Constitution. According to the Supremacy Clause, any law by Congress that is not made in pursuance to the Constitution is NOT the law of the land. That makes the law null-and-void of any force. Since the Affordable Care Act is NO LAW AT ALL, when we REFUSE TO COMPLY we are not breaking the law…we are enforcing the Supreme Law of the Land, defending our Republic, and guarding our Liberty!

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

The Congressional Appropriations Power And Same-Sex ‘Marriage’

Now that the U.S. Supreme Court has ruled that states must recognize so-called same-sex “marriage,” does that mean that proponents of real marriage have only the remedy of a Constitutional Amendment to block the effects of such a decision? No! While some men and women of good will have claimed that an amendment to the federal Constitution is the only remedy available, they have not thought through the problems associated with such a strategy. History demonstrates that this strategy is only rarely successful. Only four Supreme Court decisions have ever been reversed by Constitutional Amendment since 1789. Moreover, Liberals, and faux conservatives who duck social issues, would love to send grassroots conservatives on a futile, wild goose chase in a multi-year pursuit of a Marriage Amendment to the U.S. Constitution.

There is another way. Congress can immediately take action on a strategy to block the Obama Administration’s implementation of the Court’s decision through the use of riders to appropriations bills which will come before Congress this summer and fall.

Suggested by James Madison, both liberals and conservatives have successfully used this strategy to change public policy over the past 50 years. This approach is constitutional. It can be set in motion within days. And, if pursued by defenders of real marriage, this approach will require every 2016 congressional and presidential candidate to take a position on marriage.

The Appropriations power of Congress can and must be used to block implementation of unlawful rulings by out-of-control federal judges. Members of Congress would simply attach amendments to pending Appropriations bills later this summer to prevent the Obama Administration from implementing the pro-same sex marriage decision.

Does Congress have this power? Yes!

The Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …”  Art. 1, Sect. 9.

James Madison noted: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Federalist 58. Every Appropriations bill consists of page after page of limitations, conditions, or prohibitions on how our federal tax dollars may be spent, if spent at all. Such money prohibitions which changed history include:

  • The Vietnam War ended with the 1975 cutoff of American military aid;
  • Medicaid funding of abortion on demand was banned via the Hyde Amendment in 1976;
  • Funds to assist anti-communists seeking to overthrow the Communist government in Angola in 1975-76 were prohibited;
  • The implementation of a published IRS ruling under President Jimmy Carter which compelled private, predominantly Christian schools to prove they were not discriminating on the basis of race in order to keep their tax-exempt status in 1979 was blocked by an Appropriations Amendment from former Congressman Robert Dornan (R-CA); and
  • Tax funds to assist Contra rebel groups in overthrowing the Nicaraguan government were blocked in 1982.

Some may question if it is “constitutional” to prohibit spending money to implement same-sex “marriage.” President Andrew Jackson answered that question in his 1832 veto message of the National Banking bill, where he noted: “[t]he authority of the Supreme Court must not … be permitted to control the Congress or the Executive when acting in their legislative capacities.” President Jackson’s Veto Message Regarding the Bank of the United States; July 10, 1832.

The Supreme Court’s twisting of the Fourteenth Amendment–enacted after the shedding of blood of over a half a million Americans for equal rights for black Americans–into a mandate for same-sex “marriage”  must be challenged immediately and effectively. Many millions of Americans who voted to support and adhere to the millennia-old consensus on marriage must question the authority and judgment of the Court.

Past Justices did not always claim such sweeping infallibility. Referring to past controversial decisions of the Supreme Court, Chief Justice Earl Warren (1953-1969) commented in 1962 on the World War II Japanese internment cases that: “… the fact that the Court rules in a case like, Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.” Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 193 (1962), Reprinted in, The Air Force Law Review, Vol. 60, 2007, pp 16-17.

Providentially, I was involved in the initiation of (i) the successful Hyde Amendment relating to abortion, and (ii) the Dornan Appropriations Amendment blocking Jimmy Carter’s efforts to put private schools under the thumb of the IRS, on pain of losing their tax-exempt status. The stories of these two efforts are instructive as to the power that Congress has to fix such problems.

In the Spring of 1976, a friend provided me with the results of a FOIA request showing the Department of Health Education and Welfare (now HHS) had paid for roughly 300,000 Medicaid abortions. As a private citizen, I went to the U.S. Capitol and requested a Page to have Representative Bob Bauman (R-MD) come off the House Floor and meet me at the Cloakroom door. (Bauman and I were both active in Young Americans for Freedom many years earlier.) I showed Congressman Bauman the FOIA documents and suggested that an amendment to the HEW Appropriations Act prohibiting the use of federal tax money for abortion would be in order. He said he knew a freshman Congressman who might be willing to offer the amendment cutting off all funding for elective abortions. That first-term member of Congress turned out to be Representative Henry Hyde (R-IL). The abortion funding restriction — widely known as the Hyde Amendment — has passed Congress every year since 1976.

As a legislative assistant to Congressman Dornan, I worked with the late Jack Clayton of the National Association of Evangelical Schools to devise an amendment to protect private schools by adding a rider to a Treasury appropriations bill prohibiting the use of any federal money to implement the IRS Ruling which had compelled mostly Christian schools to jump through bureaucratic hoops to demonstrate they were not discriminating to the satisfaction of a hostile IRS in order to keep their tax exempt status. This was not a partisan effort. Indeed, I worked with Missouri Democratic Senator Eagleton’s staff as Lutheran Missouri Synod church schools were particularly burdened by the IRS Ruling. Senator Eagleton made sure that the Senate approved the House-passed Dornan Amendment. That Amendment became part of the Treasury Appropriations bill and was signed into law, stopping the IRS crusade against Christian schools.

In April 1980, in Harris vs. McRae, the U.S. Supreme Court upheld as constitutional the Hyde Appropriations Amendment banning taxpayer paid abortions. In 1981, during a break in a Conference Committee meeting held in the Capitol building, I was conferring with my boss, Mr. Dornan, when liberal New York Democrat Congressman Charlie Rangel, who supported legal abortion and abortion funding, came over to talk with us about that decision. Rangel told us that Congress could never give up the “power of the purse.” He said: “You know, we differ on abortion. But if the Supreme Court had said that they were going to tell us how to spend our (i.e., taxpayer) money, I would have put in court-stripping bills faster than you could!” I remember Rangel pressing his finger on Dornan’s chest as he spoke, in a firm but friendly manner.

The appropriations amendments which will be required to blunt the effect of the Supreme Court’s decision mandating recognition of same-sex marriage must prohibit the use of monies or fees administered by an executive agency, judicial agency or court, or presidential executive order, directive, or guideline or similar agency action to implement any aspect of the ruling in the Supreme Court marriage case, Obergefell v. Hodges, to prevent the following:

  • Removing the tax exempt status of any church, institution, university, school, or non-profit entity declining to facilitate or participate in same-sex “marriage”;
  • Requiring any federal contractor or grantee to accommodate same-sex “marriage”;
  • Disciplining or fining any person who declines to participate in a same-sex “marriage”;
  • Requiring federal employees to undergo sexual attitude restructuring education to ensure their acceptance or accommodation of same-sex “marriage”;
  • Withholding any federal grant or contract money to any state, territory, or possession declining to implement same-sex “marriage” in schools or other agencies of state government;
  • Withholding federal money from any state, territory, or possession which does not change state, etc. legal codes to accommodate same-sex “marriage”;
  • Allowing federal courts to hear challenges to any state or federal law affirming that marriage is only a relationship between one man and one woman. (See Article III Power to Curb Federal Court Jurisdiction.)

An appropriations bill is much easier to pass than a normal bill. Because funding bills are necessary to keep the government open, they must be considered and passed yearly. Other bills can be buried in committee, but appropriations bills cannot be ignored.

If our Republican House of Representatives and our Republican Senate place an appropriations rider on all spending bills stating “no funds appropriated hereunder may be used to implement the decision of the U.S. Supreme Court in Obergefell,” it would not undo or reverse the Supreme Court’s same-sex “marriage” decision. However, it would make Obergefell a decision that was never enforced at the federal level.

If Congress wanted to get creative, and send a message to a Supreme Court that had usurped Congress’ and the states’ role to decide policy, it could also consider an appropriations amendment to limit the number of clerks assigned to each Supreme Court Justice to a single clerk. If the Justices have so much time on their hands that they can attempt to defy the laws of Nature and Nature’s God, they may become more circumspect in crusading for the liberal agenda. (I actually had such an amendment drafted for Congressman Dornan while the Harris v. McRae case was pending. Had the Hyde Amendment been declared unconstitutional by the U.S. Supreme Court, Congressman Dornan intended to offer that amendment.)

It is most crucial that citizens upholding one man, one woman marriage make it immediately clear that they expect their Members of Congress to support anti-same-sex marriage appropriations riders, and to secure record votes to show the public how they voted on the specific question. To avoid taking a stand with a recorded vote, Members of Congress might try to lump all the appropriations bills into one “Continuing Resolution.” (A continuing resolution is a measure which generally funds the entire federal government in one appropriations bill utilizing spending conditions from previous years but with different spending amounts.)

Should the Republican leadership decline to take separate votes on individual appropriations bills to protect marriage, then the leadership should be removed for abandoning their stated policy beliefs as contained in the 2012 Republican Platform: “The union of one man and one woman must be upheld as the national standard.”

In April 2013, the leaders of thirteen social conservative organizations wrote to Republican National Chairman Reince Priebus, challenging the conclusions of a RNC report which concluded that the Reagan Coalition embracing social issue conservatives was a political relic and should be abandoned. The conservative leaders told Priebus: “We respectfully warn GOP leadership that an abandonment of its principles will necessarily result in the abandonment of our constituents ….”

Incumbent Members of Congress who fail to amend appropriations bills to protect natural marriage need to face primary opponents who will amend appropriations bills. We must ensure that protection of marriage becomes a necessary condition for receiving our votes in the 2016 elections and beyond.

No Congressman or Senator should be given a pass or be excused if they claim that the House or Senate Rules must prevent record votes. There are procedures to ensure record votes are taken. For example, in the House, only 25 members are needed to call for a record vote on an amendment to an appropriations bill.

The risk of permanent damage to individuals, our institutions, and our nation is too great to allow those who represent “We the People” to duck accountability for defending marriage as it has been understood for millennia. Failure on our part to demand that our representatives use all legal powers they have means we are giving up the fight, which would make us partially responsible for the evils that will ensue.

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Virginia Delegate Robert G. (“Bob”) Marshall is a senior member of the Virginia House of Delegates, currently serving his 12th term. First elected in 1991, he has consistently addressed a wide range of policy concerns including fiscal and social as well as civil liberty issues. Marshall is the co-author of the 2006 voter-approved traditional Marriage Amendment to the Constitution of Virginia. He is also the author of 2012 statute preventing Virginia from assisting the federal government in the arrest and detention of American citizens without trial, presentment of charges, or representation by counsel of alleged violations of federal security laws, and the author of a 2015 law requiring Virginia law enforcement to secure a warrant to track cell phone or computer identification and location data. Marshall has been married to his wife Cathy for 39 years; they have five children and five grandchildren. He can be reached at delegatebob@gmail.com.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

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This post originally appeared on Western Journalism – Equipping You With The Truth