‘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

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.


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.

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 Same Sex Marriage Ruling Triggers Judicial Impeachment Movement

Remember when fairy tales ended with a monogamous couple consummating their marriage with a wedding kiss as we watched for the bride to lift up her foot up signaling they would live happily ever after?

Well, the Supreme Court has just murdered that tradition. Its dark prince majority threw daggers through the heart of the millennium-honored institution, mocking its sacred origins in order to join together men with men and women with women.

Leading up to this decision, lower courts levied draconian fines at business owners who dared to cling to their so-called “outdated” traditional values.

One such judge recommended a $135,000 fine against family business bakers Aaron and Melissa Klein of Sweet Cakes By Melissa in Gresham, Oregon, for refusing to inscribe a pro-same-sex marriage slogan on the top of a wedding cake.

So, let me ask you a question: Regardless of whether you consider yourself to be a conservative, moderate, libertarian, or liberal, do you really think it’s right or fair for a small family business to get nailed with an eighth of a million dollar fine– just for exercising their first amendment rights?

Remember when activists put on their nice face, portraying same-sex marriage as being so sugary sweet? Who on earth would want to be such an intolerant ‘hater’ as to deny true love to be extended to same-sex couples?

But today, we are seeing who the true intolerant haters are: those who refuse to allow others to hold to their traditional values–and even go so far as to ruin their lives for simply exercising their first amendment rights.

Baker Melissa Klein gave her 17 word unassailable defense as: “Being a baker, the cake is our canvas and we get to put our artwork on it.” But the judge didn’t see it that way.

But rather than capitulate to the tyranny of the truly intolerant, Aaron and Melissa Klein closed shop as a matter of conscience.

Regardless how morals factor into this topic, let’s look at this from a practical matter: what kind of impact will this sort of newfangled cultural renaissance have on our economy? Ask yourself: will this boost the economy, shutting down traditionalists? And will it boost or lose jobs?

Lest we forget, it was small businesses like bakeries that helped build the United States into the largest economy in world history.

But God is not mocked. If aberrant lifestyles are continually foisted upon our national backbone that once made America stand tall, we will soon become decrepit and hunched over–and die a much deserved death as a nation.

So here’s the challenge, for ‘We the People’ to stand up against tyranny. It’s not free speech. It’s not love. It’s not tolerance. It’s tyranny. And no matter what the Supreme Court calls it, it’s not marriage. Congress now must muster the courage to impeach those Supreme Court justices, just as Associate Justice Samuel Chase was impeached in 1805.

Please forward a link to this video to anyone you know who still has a backbone. Thank you.

NOTE: Activist Gregg Jackson is now calling for the impeachment of morally rogue justices. Contact him: gregg.jackson@gmail.com

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

Time To Checkmate Federal Courts On Same-Sex Marriage And More

At the close of the Constitutional Convention in Philadelphia in 1787, a woman allegedly approached Benjamin Franklin and asked, “Well, Doctor, what have we got – a republic or a monarchy?” The sage 81-year-old Franklin replied, “A republic, if you can keep it.”

Wordsmith, entrepreneur, inventor, diplomat, and polymath, Franklin understood that a piece of paper, however well conceived and drafted, would never be sufficient to secure ordered liberty. Over the long haul, the prize of a republic of free citizens would hinge on constant effort.

The new U.S. Constitution was a grand legal document, but its function would be to provide the tools for generations of human exertion. Without continuing the sacrifices made by Franklin and the founders into the future, the American experiment in liberty, which captured the imagination of the world, would not endure.

Can we today, utilizing the tools of the Constitution, keep alive the self-governing federal republic we have received? With the U.S. Supreme Court entertaining, as if a serious legal issue, whether ordinary state laws on marriage were outlawed 147 years ago when the post-Civil War Fourteenth Amendment was adopted, now would be a good time to reexamine and deploy such tools. An obvious starting point is the control of federal court jurisdiction which the Constitution entrusts to Congress. (For a discussion of several other constitutional means to check judicial usurpation, see Edwin Vieira, How to Dethrone the Imperial Judiciary (2004).)

No court can decide any case without jurisdiction, the authority to render a binding judgment in a disputed matter. Unlike most state courts which possess general jurisdiction, federal courts have only limited jurisdiction to hear cases as authorized by the U.S. Constitution and laws thereunder. They are courts of limited jurisdiction.

Article III of the Constitution provides in part:

Section 1.  The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2.  The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— . . . —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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. [Emphasis added.]

The above language was the result of multiple compromises by the Constitutional Convention. Chief among them was the so-called Madisonian Compromise. Some delegates opposed creation of a federal court system below the U.S. Supreme Court, leaving state courts to decide federal issues first, with possible appeal to the Supreme Court. James Madison and others thought creation of a lower federal court system was best, and persuaded the Convention to defer the issue to later congressional decision.

Thus, Congress was given authority over the existence of lower federal courts including details of their jurisdiction. Congress has used this power to alter lower court jurisdiction in a variety of ways. One of the most prominent was the Norris-LaGuardia Act of 1932 which restricted injunctions in labor disputes – a statute later upheld by the Supreme Court. (See “Congressional Authority over the Federal Courts,” Congressional Research Service (May 16, 2005).)

As for the U.S. Supreme Court, the Constitution, not Congress, sets its original jurisdiction, the matters initially filed in and heard by it. These cases are rare and comprise a fraction of the high court’s workload. The bulk of its deliberations are appeals from lower courts, its appellate jurisdiction. As to this jurisdiction, Congress is given a large hand: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  (See Ralph A. Rossum, “Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court,” 24 Wm. & Mary L. Rev. 385 (1983).)

After arguing for the general soundness of the Constitution’s allocation of judicial power for the new federal system, Alexander Hamilton, in Federalist No. 80 (1788), explains the checking power entrusted to Congress over court jurisdiction against any “mischief” that might arise:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.  [Emphasis added.]

(In Federalist Nos. 79 and 81, Hamilton discussed the ultimate check provided Congress over the entire federal judiciary, the power to impeach and remove judges.)

In the modern era, various efforts have been made to use congressional control over court jurisdiction to check sweeping liberal decisions of the Supreme Court. The subjects addressed have included Court rulings which sanctioned large-scale busing as a remedy to public school segregation, banned traditional group prayer in public schools, and overturned longstanding state criminal laws restricting abortion. Other efforts to curb jurisdiction have involved religious liberty questions, recitation of the Pledge of Allegiance, display of the Ten Commandments, and state marriage laws reflecting the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair.

Recently, some members of Congress have focused on the need to restrain federal judges from imposing their will over state marriage laws – to protect the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair. Congressman Steve King (R-IA) has led a handful of his colleagues in seeking such legislation in the current Congress. See Rep. King’s bill entitled “Restrain the Judges on Marriage Act of 2015,” H.R. 1968, 114th Congress, 1st Session (2015). Most Republican congressmen appear to be overly timid and have been unwilling to join this effort. Only 10 members have signed on as co-sponsors:  Brian Babin (R-TX), Jeff Duncan (R-SC), Louie Gohmert (R-TX), Doug LaMalfa (R-CA), Thomas Massie (R-KY), Steven Palazzo (R-MS), Glenn Thompson (R-PA), Tim Walberg (R-MI), Ted Yoho (R-FL), and Walter Jones (R-NC). Are these the only Republican House members who have the courage of their convictions on marriage?

Sen. Ted Cruz (R-TX) introduced a companion bill to Mr. King’s bill in the Senate, S.1080, “Protect Marriage from the Courts Act of 2015.” He has zero co-sponsors at this point. Are there no other Republican Senators who support traditional marriage?

In the 1970s and 1980s, Sen. Jesse Helms (R-NC) had some success in the Senate with court limitation amendments on school prayer. But he too faced opposition from some Republican colleagues.

In April 1979, with a 58-member Democratic majority, Helms won approval of court limitation twice (with votes of 47 to 37 and 51 to 40), only to see the legislation die after parliamentary maneuvers and inaction in the Democratic House. In August 1982, when Republicans held a 53-member majority in the Senate, Helms offered a similar court limitation amendment, which by a 47-53 vote survived a motion to table (or kill). Lacking 60 votes for cloture, though, the legislation did not clear the Senate. Helms tried again in September 1985. By then, not only did he face liberal Democratic opponents; but key Republicans, including Senators John Danforth (R-MO), Pete Domenici (R-NM), Barry Goldwater (R-AZ), Orrin Hatch (R-UT), and Richard Lugar (R-IN), joined them to table the amendment by vote of 62 to 36.

Congressman John Hostettler (R-IN) led a winning effort in the House in 2004, when Republicans held a slim majority. His Marriage Protection Act removed all jurisdiction from lower federal courts and appellate jurisdiction of the Supreme Court over the Defense of Marriage Act. DOMA, enacted in 1996 by veto-proof majorities of both houses of Congress, allowed states not to recognize same-sex marriages from other states (sec. 2) and defined marriage for federal purposes as only between a man and a woman (sec. 3). After the House Judiciary Committee, chaired by Congressman Jim Sensenbrenner (R-WI), cleared Hostettler’s bill, it passed the full House in July 2004, on a vote of 233 to 194. Despite Republican control, the Senate failed to take action. The bill had been referred to the Senate Judiciary Committee, chaired by Sen. Orrin Hatch, who had earlier opposed the Helms legislation limiting court jurisdiction over school prayer. If Hostettler’s legislation had been enacted in 2004, the case of United States v. Windsor, 133 Sup. Ct. 2675 (2013), striking down sec. 3 of DOMA as unconstitutional by 5-to-4 vote, would likely never have been decided.

In Federalist No. 78 (1788), Alexander Hamilton reckoned the judiciary the “least dangerous” and “weakest” branch of the federal government. Unlike the executive or legislative branches, the judiciary, he noted, lacked the sword and the purse. He thought that while “individual oppression” may proceed from courts, danger to the “general liberty of the people” exceeded the judicial power.

Brilliant though he was, Hamilton failed to see what might happen when most of the checks and balances applicable to the judiciary under the Constitution were allowed to lie dormant for half a century and more. He overlooked the dangers that an extra-constitutional ethos might grow up, encouraged by the Court’s own extravagant jurisprudence, holding that the constitutional text and the Court’s interpretations are functionally equivalent, and thus irreformable except by the Court itself.

Moreover, it is certain that the original and later constitutional framers never envisioned Supreme Court justices growing so arrogant as to engage in wholesale usurpations against customary state legislative powers. They surely never imagined that federal courts would turn the killing of an unborn son or daughter into a constitutionally protected right. But see Roe v. Wade, 410 U.S. 113 (1973). The framers did not dream that such courts would transform what was “the crime against nature,” homosexual sodomy, into protected behavior. But see Lawrence v. Texas, 539 U.S. 558 (2003). And nothing the framers included in the Constitution contemplates a right for the oxymoronic concept of same-sex marriage; yet lower courts have forced this unnatural relationship upon the states and upended millennia of civilizing law.

Despite what they may not have foreseen, Ben Franklin and other constitutional drafters did leave us the tools of self-government, more than ample to stop judicial hubris and other legal chicanery. Thus, we have the means to preserve our republic and its historic values. Do we have the will?


Thomas J. Ashcraft is a lawyer in Charlotte, North Carolina. He served on the legislative staff of U.S. Senator Jesse Helms in the 1980s and as U.S. Attorney for the Western District of North Carolina, 1987-93. Email him at tashcraft@bellsouth.net.

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

‘Same-Sex Marriage’ Versus Judicial ‘Good Behavior’

“Same-sex marriage” may be an affront to common sense, an oxymoron, and even an ontological impossibility. But as the product of a type of behavior familiar in contemporary politics, its promotion is nothing really new. The contention that the government may impose “same-sex marriage” on society is just a particularly egregious example of the dark art of “law laid down by linguistic legerdemain”: namely, the usurpation of governmental authority through alteration of the meaning of a legally operative word or phrase by affixing to it some tendentious adjective or other qualifying term.

Simply by transmogrifying definitions, entirely new sets of legal rights, powers, privileges, immunities, duties, exposures, and liabilities can be created out of essentially nothing more than plays on words. For example, prefixing the noun “speech” with the pseudo-adjective “hate” creates the novel legalistic category of “hate speech”, which supposedly is not protected by the First Amendment, and therefore can be subjected to pervasive governmental regulation. With no greater difficulty than that, public officials can arrogate to themselves a license to impose censorship and to penalize individuals who expatiate vehemently on prohibited subjects. This process is also capable of aggregating such synthetic powers. For instance, once “same-sex marriage” receives a legalistic imprimatur, those who express a strong aversion to it can be condemned for “hate speech.”

Although such verbal tricks can be performed in legislative statutes and administrative regulations, the judiciary’s method of continuously generating myriad “precedents” on an ad hoc “case-by-case” basis — in each of which instances judges can make subtle, incremental changes in the law through supposed “constructions” and “applications” — provides the widest latitude for alterations of this kind.

Specifically, judges have expanded Congress’s limited constitutional power “[t]o regulate Commerce . . . among the several States” into a discretion to regulate, within and throughout the States, not only actual “Commerce,” but also matters which have nothing whatsoever to do with “Commerce.” This feat only required ruling that the power to regulate “Commerce” entitles Congress to regulate whatever is capable of “affecting Commerce” — even though the latter is admittedly not itself “Commerce”, or else the modifier would be unnecessary. Employment of the participle “affecting” has resulted in a legal elephantiasis of the term “Commerce” (and thus of Congress’ power with respect to “Commerce”), without the inconvenience (and honesty) of amending the Constitution for that purpose. More generally, by invoking “the living Constitution” — which must be distinguishable from “the Constitution” simpliciter, or else the participle would be superfluous — judges can rationalize to their own satisfaction the expansion of every governmental power to whatever degree they dare.

Self-evidently, though, “law laid down by linguistic legerdemain” is most effective — and most dangerous — when the process occurs through the redefinitions of words which do not appear in the Constitution. After all, phrases such as “affecting Commerce” and “hate speech” depend in the final analysis upon nouns the meanings of which are defined and thus circumscribed by the legal theory, history, and practice peculiar to the United States. Even by recourse to imaginative adjectival or other modifiers, one can go only so far in attempting to bend the received legal meanings of such terms before the deception becomes patent to every observer.

In contrast, the import of and justification for “same-sex marriage” depend upon plastic and controversial conceptions concocted from such sources as sociology, psychology, and fashionable ideologies, not upon specific legal terms with well-known and relatively narrow technical meanings. And necessarily so. Inasmuch as marriage has preexisted the government of the United States for centuries in Western civilization (and even for millennia if other civilizations are considered), the government cannot claim to have been the origin either of marriage itself or of the definition of marriage.

The U.S. Constitution nowhere mentions marriage or any matter material to it. So the government can point to no historical precedent or present power under color of which it can purport to equate “same-sex marriage” with marriage for any purpose. No power, that is, unless public officials enjoy an unbridled license to redefine common words ad libitum — because if “same-sex marriage” were the same as marriage, the adjective would not be necessary. (And perhaps not to define those terms at all, under the pretense of equating them. For the proponents of “same-sex marriage” have yet to clarify precisely what definition of marriage allows for participation on equal terms both by two individuals of opposite sex and by two individuals of the same sex — and yet excludes such arrangements as “plural marriage”, “child marriage”, “incestuous marriage”, or perhaps even “interspecies marriage”.)

It should be obvious that for any public officials to claim the discretion to redefine words in order to expand their powers is to misuse or abuse their authority. Through the Looking-Glass exposes the ulterior purpose of such an assertion as well as its audacity:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Such attempts by political wordsmiths “to be master — that’s all” are arguably less dangerous as far as the Legislative and Executive Branches of the government are concerned than where the Judicial Branch is involved. For members of the Legislative Branch who persist in perversely redefining words in the course of enacting statutes can be removed from office by the electorate at regular intervals, or even can be expelled from Congress by its other members. If the chief officers of the Executive Branch (the President and the Vice President) misbehave in a similar fashion when executing the laws, they too can be removed by the voters; and in any event, the President is subject to limitations in the number of terms he may serve. In addition, the President can demand the resignation of any errant official whom he has appointed to a position in the Executive Branch. Moreover, Congress can eject any civil officer of the United States from his office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Distinguishably, judges are not elected officials; and their tenures in office are indefinite, the Constitution providing that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The latter clause is usually said to invest judges with “life tenure”, so as to render their expulsion from the Bench exceedingly difficult. Such is not actually the case, however. For judges can be removed — not only as with any other civil officers “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” — but also for a lack of “good Behaviour” which does not rise to the level of an offense which warrants impeachment.

Plainly enough, the grounds for “Impeachment . . . and Conviction” and what forms of misconduct manifest a lack of “good Behaviour” are not identical. Rather, according to basic principles of constitutional interpretation, each provision of the Constitution must be construed in the light of the others, and that no provision of the Constitution can be presumed to be without effect. If the “good Behaviour” clause contemplated no more than the absence of “Treason, Bribery, or other high Crimes and Misdemeanors,” it would be superfluous — because, as civil officers of the United States, judges would always be subject to “Impeachment . . . and Conviction” on those grounds, without any special mention of their exposure. Or, to hammer home that point with redundancy, the Constitution might have specified that “Judges . . . shall hold their Offices unless impeached and convicted.” Thus, by dint of the dual standards, the Constitution recognizes that, although “Treason, Bribery, or other high Crimes and Misdemeanors” necessarily involve a lack of “good Behaviour,” not every lack of “good Behaviour” involves “Treason, Bribery, or other high Crimes and Misdemeanors.” And therefore, the Constitution must allow for removal of judges under two different sets of circumstances and by two different procedures.

This is not to say that “Impeachment . . . and Conviction” would be inapplicable to a judge who practiced the dark art of “law laid down by linguistic legerdemain”, even in a single egregious case. Being a blatant mal-administration of his office, in violation of his public trust and duties, such misconduct could constitute a “high . . . Misdemeanor”, as William Blackstone explained in his Commentaries on the Laws of England and Joseph Story described in his Commentaries on the Constitution of the United States. Nonetheless, although possible, impeachment does not provide a practical remedy in most instances of this kind. First, the procedure is cumbersome. Second, the essentially criminal nature of a “high . . . Misdemeanor” would require sufficient evidence of malign intent (what lawyers denote as mens rea). The proof would likely be problematic, too, if an errant judge defended himself on the grounds that he had uncritically followed “precedents”, had mechanically applied the judiciary’s peculiar “tests” for construing the Constitution, or had relied unthinkingly upon some other intellectually impenetrable judicial mumbo jumbo in arriving at his decision.

In contrast, the standard of “good Behaviour” covers situations in which criminal wrongdoing and mens rea need not be present, whereas common sense deems intolerable the judicial misconduct in question. That standard allows for the removal of judges who, although perhaps personally honest, have proven themselves in some other way unsuitable for continuation in office. A judge whose tenure manifests insanity, emotional instability, recurrent intoxication, physical inability to perform his duties, gross ignorance, incompetence as a legal analyst, or chronic indolence (to mention only a few disqualifying deficiencies) may not be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors”; but his comportment certainly falls so short of “good Behaviour” as to require his removal. So, too, for a judge who, infatuated with “law laid down by linguistic legerdemain”, misuses the Constitution as a blank slate upon which to inscribe theretofore unheard-of and fantastic legal doctrines. Such a judge may sincerely hold to the belief that his office so empowers him. But an individual can be utterly sincere, yet at the same time completely and dangerously wrong. And an individual who acts upon so errant a belief cannot be suffered to hold a judicial office which enables him to harm the entire country by putting that belief into practice.

To be sure, the Constitution specifies no particular procedure for removal of judges because of their lack of “good Behaviour.” Nevertheless, a power of removal incident to satisfaction of that condition must exist, even if only by implication; or else the condition itself would be meaningless. And no part of the Constitution can be dismissed as inoperative. Therefore, once a judge ought to be removed on that ground, he can be removed. And, if nowhere else, the authority to enact legislation to effectuate that end must inhere in Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested in the Government of the United States.”

One plausible procedure drawn from the perspective of pre-constitutional Anglo-American legal history, as well as the structure of the Constitution itself, would involve: (i) a majority vote in both the House of Representatives and the Senate which call for the removal of a judge by enactment of a suitable bill or resolution which laid out the judge’s specific misconduct in violation of the standard of “good Behaviour”, followed by (ii) an order to that effect from the President if he concurred in Congress’s directive.

If the constitutional principle of “checks and balances” is to be maximally effective, however, the Judiciary should play no part whatsoever in this process. For, just as with an individual, no institution can be suffered to be a judge in its own case. The contemporary Judiciary daily demonstrates not only such a disregard for basic constitutional principles of self-restraint, but also such irresponsibility, arrogance, and even imperialistic ambition to lord itself over the other branches of government as well as over the American people as a whole, that no judge can be presumed to be unbiased where the lack of “good Behaviour” of some other judge is at issue. In contrast, the requirement that both the Legislative and the Executive Branches should cooperate in the removal of judges would maximize the constitutional “checks and balances” at work in the process, and would minimize the possibility that institutional or personal prejudices might improperly affect its outcome.

It might be objected that a Congressional bill or resolution mandating the removal of a particular judge from office should be disqualified as a constitutionally prohibited “Bill of Attainder.” The Constitution plainly provides, however, that a judge can be removed for lack of “good Behaviour”; and any such judge obviously must be identified by name in the course of whatever process applies. Therefore, if the Constitution permits that process to involve the passage by Congress of what could be called a “bill” specifically directed ex necessitate at that judge by name, then such a “bill” cannot be a “Bill of Attainder” — for the simple reason that one provision of the Constitution cannot render nugatory any other provision.

It might also be objected that a procedure would not afford “due process” to a judge threatened with removal. “Due process”, however, is the process the Constitution makes due, which is not the same in every situation. An individual nominated for a position on the Bench has always been entitled to submit evidence as to his qualifications within the rules established for such a case by the Senate, but nothing more than that. The selfsame procedure, according to rules established by the House and the Senate for their respective hearings, should equally suffice in the case of an individual’s removal from the Bench. Certainly no historical example can be cited in support of a prediction that either the House or the Senate would arbitrarily preclude a judge or witnesses on his behalf from testifying or introducing other relevant evidence when such a bill or resolution were being considered.

By whatever means, though, something must be done — and soon — to bring reckless judges to heel. The present enthusiasm among all too many judges for legitimating “same-sex marriage” indicates how far they are willing to go in aid of perverse “social engineering” at this point in time. That vanishingly few people ever imagined that American judges would go even as far (and as fast) as they already have ominously suggests that they are more than likely to go farther still.


Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than thirty years, he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States, he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment. He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System and the political upheaval it causes. (www.crashmaker.com) His latest work is “How To Dethrone the Imperial Judiciary“. He can be reached at P.O. Box 3634, Manassas, Virginia 20108, or 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