Sunday, February 06, 2005

Rush, I love ya, but you made a critical error Tuesday on Marbury v. Madison

e-mail to Rush 2-3-05


Dear Rush,

I’ve been listening to you since the first month you went on the air in New Orleans. You are an inspiration and my whole family loves you.

In the last half of your first hour on Tuesday you were discussing how far out in left field the Federal Judiciary has gone in the last several decades. You discussed parts of the Scalia v Breyer debate and were hitting on all cylinders in the way that only Maha Rushie can.

Then you proceeded to explain the history of the “source” of much of the judicial tyranny we suffer under today. And here I quote you from your website:

"So in Marbury vs. Madison the Supreme Court says: We are the arbiters of what's constitutional or not." Therefore, we get the Supreme Court telling us whether abortion is legal or not, whether it's constitutional or not, whether busing is constitutional. It was never part of the intention of the Founders in structuring the three branches, and now the court and judges, who are liberal activists seek to impose their own political agenda on society when they get the chance as in this court and this judge's ruling on the war on terror."

Rush while you are of course correct that: “It was never part of the intention of the Founders in structuring the three branches, and now the court and judges, who are liberal activists…..” you made a major mistake about Marbury that needs correction, for “Nothing in Marbury supports the modern myth of judicial supremacy in interpretation of the Constitution.”

Rush, the problem we conservatives face today is that the MISUNDERSTANDING of what Marbury ACTUALLY said and did has become so entrenched that it’s taught in high-school civics as well as advanced law school courses. This misunderstanding has become so fully accepted that even conservatives have come to perpetuate it. It is in many ways the Achilles heel of those who want to restore true order to the judicial branch. It is also one of the major obstacles to ending the holocaust of abortion, which the Supreme Court began with its infamous Roe decision.

Rush I know that you are a great supporter of the Pro-Life Movement. I believe some of your finest moments are when you speak about the sanctity of life. However, the Pro-Life Movement, and conservatism in general suffers greatly because of what has become the “accepted facts” of what precedents Marbury set—but virtually every part of the myth about Marbury is incorrect.

Perhaps no one individual sets the record straight on the truth of Marbury v. Madison better than University of Minnesota Law Professor Michael Paulsen. Dr. Paulsen is the Briggs & Morgan Professor of Law, Northwestern University. Dr. Paulsen presented “THE IRREPRESSIBLE MYTH OF MARBURY” during the CONSTITUTIONAL THEORY COLLOQUIUM SERIES in the spring of 2004. It is in PDF format here.

Also you may read about Dr. Paulsen at the Law school website.

Rush, please review Dr. Paulsen’s study on Marbury, and help break the Myth which does so much harm to the advancement of our cause of Conservatism.

God bless you and I hope you stay on top another 50 years.

Kevin Jeanfreau, Founder
CHRISTIAN PATRIOTS FOR LIFE

Tuesday, January 11, 2005

WE THE PEOPLE ACT -- HON. RON PAUL

WE THE PEOPLE ACT -- HON. RON PAUL (Extensions of Remarks - March 04, 2004)

[Page: E309]               

THURSDAY, MARCH 4, 2004

  • Mr. PAUL. Mr. Speaker, I rise to introduce the We the People Act. The We the People Act forbids federal courts, including the Supreme Court, from adjudicating cases concerning state laws and policies relating to religious liberties or ``privacy,'' including cases involving sexual practices, sexual orientation or reproduction. The We the People Act also protects the traditional definition of marriage from judicial activism by ensuring the Supreme Court cannot abuse the equal protection clause to redefine marriage. In order to hold federal judges accountable for abusing their powers, the act also provides that a judge who violates the act's limitations on judicial power shall either be impeached by Congress or removed by the president, according to rules established by the Congress.

  • The United States Constitution gives Congress the authority to establish and limit the jurisdiction of the lower federal courts and limit the jurisdiction of the Supreme Court. The Founders intended Congress to use this authority to correct abuses of power by the federal judiciary.

  • Some may claim that an activist judiciary that strikes down state laws at will expands individual liberty. Proponents of this claim overlook the fact that the best guarantor of true liberty is decentralized political institutions, while the greatest threat to liberty is concentrated power. This is why the Constitution carefully limits the power of the federal government over the states.

  • In recent years, we have seen numerous abuses of power by federal courts. Federal judges regularly strike down state and local laws on subjects such as religious liberty, sexual orientation, family relations, education, and abortion. This government by federal judiciary causes a virtual nullification of the Tenth Amendment's limitations on federal power. Furthermore, when federal judges impose their preferred policies on state and local governments, instead of respecting the policies adopted by those elected by, and thus accountable to, the people, republican government is threatened. Article IV, section 4 of the United States Constitution guarantees each state a republican form of government. Thus, Congress must act when the executive or judicial branch threatens the republican governments of the individual states. Therefore, Congress has a responsibility to stop federal judges from running roughshod over state and local laws. The Founders would certainly have supported congressional action to reign in federal judges who tell citizens where they can and can't place manger scenes at Christmas.

  • Mr. Speaker, even some supporters of liberalized abortion laws have admitted that the Supreme Court's Roe v. Wade decision, which overturned the abortion laws of all fifty states, is flawed. The Supreme Court's Establishment Clause jurisdiction has also drawn criticism from across the political spectrum. Perhaps more importantly, attempts to resolve, by judicial fiat, important issues like abortion and the expression of religious belief in the public square increase social strife and conflict. The only way to resolve controversial social issues like abortion and school prayer is to restore respect for the right of state and local governments to adopt policies that reflect the beliefs of the citizens of those jurisdictions. I would remind my colleagues and the federal judiciary that, under our Constitutional system, there is no reason why the people of New York and the people of Texas should have the same policies regarding issues such as marriage and school prayer.

  • Unless Congress acts, a state's authority to define and regulate marriage may be the next victim of activist judges. After all, such a decision would simply take the Supreme Court's decision in the Lawrence case, which overturned all state sodomy laws, to its logical conclusion. Congress must launch a preemptive strike against any further federal usurpation of the states' authority to regulate marriage by removing issues concerning the definition of marriage from the jurisdiction of federal courts.

  • Although marriage is licensed and otherwise regulated by the states, government did not create the institution of marriage. Government regulation of marriage is based on state recognition of the practices and customs formulated by private individuals interacting in civil institutions, such as churches and synagogues. Having federal officials, whether judges, bureaucrats, or congressmen, impose a new definition of marriage on the people is an act of social engineering profoundly hostile to liberty.

  • It is long past time that Congress exercises its authority to protect the republican government of the states from out-of-control federal judges. Therefore, I urge my colleagues to cosponsor the We the People Act.


Sunday, January 02, 2005

Destroying the Law Breaking Branch of the Federal Government with Article 3 of the U.S. Constitution.

SierraTimes.com

by Ed Current

The law-breaking branch of the federal government has become move powerful than the law making branch, the President and even the Constitution.

How did five out of nine judges on the U.S. Supreme Court become so infallible that no one questions anything they say? When the Most High Court speaks, the nation must prostrate fall. U.S. Attorney General John Ashcroft, during his confirmation hearings, said that he would not attempt to overturn Roe v.Wade and that he considered it the “settled law of the land.” The abortion edicts from the Supreme Court aren't acts of Congress, nor a constitutional amendment, but a supposedly pro-life politician declares that those edicts are "settled law."

If the U.S. Supreme Court was intended to break as many laws as they have, why does the Constitution prohibit them from being involved in the law making process? Why did Marshall have to derive the doctrine of judicial review in Marbury v Madison? Why wasn't it explicitly stated in the Constitution?

If the U.S. Supreme Court was intended to amend the Constitution, why does the Constitution prohibit them from being involved in the amendment process? If the U.S. Supreme Court was intended to enforce their own opinion, why does the Constitution leave that option with the President?

If the U.S. Supreme Court was intended to be equal to, or above the written Constitution, why does the Constitution state, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…. and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."

The following will demonstrate that the United States Supreme Court broke numerous state laws regulating abortion.

The Foundation for the National Archives states that, "The Virginia Declaration of Rights strongly influenced Thomas Jefferson in writing the first part of the Declaration of Independence. It later provided the foundation for the Bill of Rights."

The Virginia Declaration of Rights states, " That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life…."

Thomas Jefferson, in the Declaration of Independence, acknowledged the source of Rights and expressed the fundamental purpose of government: "....all Men are created equal...endowed by their Creator with...unalienable Rights, that among these are Life....to secure these Rights, Governments are instituted...."

Robert C. Cannada writing in the The National Lawyers Association Review, Winter 1996, connected the Declaration of Independence to the U.S. Constitution: "The National Lawyers Association takes the position that the practical effect of the legal connection or relationship between the Declaration and the Constitution is that the Constitution is to be interpreted in the light of the principles set forth in the Declaration.[...]

The Preamble introduces and explains the purpose of The U.S. Constitution, and links it to The Declaration of Independence." The Preface to the United States Code - Annotated states that "this code is the official restatement in convenient form of the general and permanent laws of the United States in force December 7, 1925...."

The Preamble to the U.S. Constitution states," We the People of the United States, in Order to....secure the Blessings of Liberty to...our Posterity, do ordain and establish this Constitution...."

Amendment V - "No person shall be...deprived of life...without due process of law...."

In First Things, January 2003: Constitutional Persons, Robert H. Bork stated that, "Science and rational demonstration prove that a human exists from the moment of conception."

Article 3 of the U.S. Constitution provides the means for Congress to overthrow the law-breaking branch of the federal government and allow states to mend their broken laws. In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.

We the People Act (HR 3893 IH) was only supported by two members of the U.S. House, and virtually unheard of, or promoted by the pro-life constituency.

It is past time to terminate the rule of broken law contained in the unconscionable and unconstitutional edicts of the U.S. Supreme court.

We the People Act needs to be reintroduced and passed by the 109th Congress and restore the rule of Law.

References.

Robert C. Cannada, Senior Counsel, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Mississippi, "America's Choice: A Limited Government Or A Totalitarian Government," The National Lawyers Association Review, Winter 1996. http://www.nla.org/library/winter96/pg9.html

Constitutional Persons:An Exchange on Abortion

Ed Current is working with http://www.cpforlife.org/pro_life.htm to demolish the Blackmum Wall http://www.lifedynamics.com/Pro-life_Group/Pro-choice_Women/ . Reagan brought down the Berlin Wall and CPL will demolish the Blackmum wall by using Article 3 of the U.S. Constitution.

Thursday, December 30, 2004

THE IRREPRESSIBLE MYTH OF MARBURY

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

CONSTITUTIONAL THEORY COLLOQUIUM SERIES

Michael Paulsen -- February 18, 2004

(This is an excerpt. Complete document in PDF)


Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison,1 the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.


As befits the name of the court from which the doctrine emanates, the Supreme Court's power of judicial review - the power, in Chief Justice John Marshall's famous words in Marbury, "to say what the law is"2 - is supreme. The Congress, the President, the states - indeed, "We the People" who "ordain[ed] and establish[ed]"3 the Constitution - are all bound by the Supreme Court's pronouncements. Thus, the decisions of the Supreme Court become, in effect, part of the Constitution itself. Even the Supreme Court is bound by its own precedents, at least most of the time. Occasionally the Court needs to make landmark decisions that revise prior understandings, in order to keep the Constitution up to date with the times. When it does, that revised understanding becomes part of the supreme law of the land. Other than through the adoption of a constitutional amendment, however, the Supreme Court is the final authority on constitutional change.


Judicial review (the myth continues) thus serves as the ultimate check on the powers of the other branches of government, and is one of the unique, crowning features of our constitutional democracy. The final authority of the Supreme Court to interpret the Constitution has withstood the test of time. It has survived periodic efforts by the political branches, advanced during times of crisis (the Civil War and the Great Depression) or out of short-term political opposition to initially unpopular or controversial rulings (like Brown v. Board of Education4 and Roe v. Wade5), to undermine this essential feature of our constitutional order. Through it all - Dred Scott6 and the Civil War, the New Deal Court-packing plan, resistance to Brown, the Nixon Tapes case,7 the Vietnam War, the quest to overrule Roe v. Wade - the authority of the Supreme Court as the final interpreter of the Constitution has stood firm. Indeed, the Court's authority over constitutional interpretation by now must be regarded, rightly, as one of the pillars of our constitutional order, on par with the Constitution itself.


So the myth goes.


But nearly every feature of the myth is wrong. For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified. Such a power and duty was contemplated by the Framers of the Constitution, publicly defended in Alexander Hamilton's brilliant Federalist No. 78 (as well as other ratification debates), and well-recognized in the courts of many states for years prior to Marbury.8


Moreover, and also contrary to the mythology that has come to surround Marbury, the power of judicial review was never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation. Nothing in the text of the Constitution supports a claim of judicial supremacy. The courts possess "[t]he judicial Power of the United States"9 and that power extends to "Cases, in Law and Equity, arising under this Constitution,"10 but nothing in the logic or language of such a statement of constitutionally authorized judicial jurisdiction implies judicial supremacy over the other branches of government. Jurisdiction to decide cases does not entail special guardianship over the Constitution. (If anyone could lay claim to the title of Special Trustee or Lord Protector of the Constitution, it would be the President, for whom the Constitution prescribes a unique oath that he will, "to the best of my Ability, preserve, protect, and defend the Constitution of the United States.").11


None of the Constitution's authors or proponents ever suggested that the Constitution provides for judicial supremacy over the other branches in constitutional interpretation. All prominent defenses of the Constitution at the time of its adoption explicitly deny - indeed, take pains to refute - any such notion, which was sometimes charged by opponents of ratification but never accepted by the document's defenders. 12


Nothing in Chief Justice Marshall's opinion in Marbury makes such a claim of judicial supremacy either. The standard civics-book (and law school casebook) myth misrepresents and distorts what John Marshall and the Framers understood to be the power of judicial review: a coordinate, coequal power of courts to judge for themselves the conformity of acts of the other two branches with the fundamental law of the Constitution, and to refuse to give acts contradicting the Constitution any force or effect insofar as application of the judicial power is concerned.

The Worst Constitutional Decision of All Time

Michael Stokes Paulsen

"As noted before, the Supreme Court did not invent abortion. There might be plenty of abortion, perhaps authorized or permitted by state laws, even without Roe and Casey. Moreover, the Court is, arguably, not directly responsible for the wrong moral choices of individuals that the Court's decisions permit. Finally, the Court is not responsible - cannot be responsible, consistent with its constitutional role - for correcting all injustices, even grave ones. But the Court is responsible for the injustices that it inflicts on society that are not consistent with, but in fact betray, its constitutional responsibilities. To the extent that the Court has invalidated essentially all legal restriction of abortion, it has authorized private violence on a scale, and of a kind, that unavoidably evokes the memories of American slavery and of the Nazi Holocaust. And by cloaking that authorization in the forms of the law - in the name of the Supreme Law of the Land - the Court has taught the American people that such private violence is a right and, by clear implication, that it is alright. Go ahead. The Constitution is on your side. This is among your most cherished constitutional freedoms. Nobody ought to oppose you in your action. We have said so.

The decision in Casey, reaffirming Roe and itself reaffirmed and extended in Carhart, in my view exposes the Supreme Court, as currently constituted, as a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all time. The Court, as it stands today, has, with its abortion decisions, forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the People. The enthusiasm of liberal intelligentsia for the Court's abortion decisions, the sycophancy of the law professorate, of the legal profession, and of our elected officials, and the docility of the American people with respect to our lawless, authoritarian Court rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history. We suffer people to commit despicable acts of private violence and we welcome - some of us revere - a regime that destroys popular government for the sake of perverted, Orwellian notions of "liberty." After a twentieth century that saw some of the worst barbarisms and atrocities ever committed by humankind, at a time when humankind supposedly had progressed to more enlightened states, we still have not learned. The lesson of the Holocaust - "Never Forget" - is lost. We fail to recognize the amazing capacity of human beings to commit unthinkable, barbaric evil, and of others to tolerate it. We remember and are aghast at the atrocities of others, committed in the past, or in distant lands today. But we do not even recognize the similar atrocities that we ourselves commit, and tolerate, today."

Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1003-1007 (2003).

Curbing the Courts


by Virginia C. Armstrong, Ph.D.

Dr. Armstrong is the president of the Blackstone Institute and National Chairman of Eagle Forum's Court Watch. She writes and speaks widely on the Constitution, jurisprudence, and Christian apologetics.

"...a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all time."

This view of the U. S. Supreme Court, expressed by contemporary legal scholar Michael S. Paulsen, is spreading among Americans who hold a high view of the Constitution and its Judeo-Christian foundations. At the opposite pole in America's Culture War are the nation's judicial elite and their off-the-court allies who extol the role now played by federal judges.
Author and professor Arthur S. Miller is among the admirers of the recent state of judicial affairs: "The [Justices of the Supreme Court function] as a de facto Council of Elders [and] may be likened to the oracles of ancient Greece.... The Constitution is a theological document ... and the Justices are the High Priests who keep it current with each generation of Americans."

Who is right? A thorough, objective, scholarly analysis of the evidence reveals that Paulsen's position is correct. The Supremes and their lower court minions must be dethroned; and the 2004 elections are an essential step in this process. Truly, "curbing the courts" is "the hottest issue of the 2004 elections."

Perhaps the greatest barrier to curbing the courts is the widespread assumption that, as institutions, courts should not be curbed nor even examined regarding the rightness or wrongness of their actions...
How can it be that in a nation whose Constitution still begins with the words "We, the People," that we have an effective situation where the people and their elected representatives are often virtually expelled from policy-making/legislating processes?

The answer is that the courts have declined to show self-restraint, instead arrogantly appropriating jurisdiction which they have neither the authority nor the ability to exercise...

We must make... the encouragement of Congressional court-curbing a central election issue, now and in the future. Write to Congressmen, surf the Web. Pray. Be informed.

We find in the Scriptures (Esther 4:14) our motivation for reclaiming our courts, our Constitution, and our culture: "Who knows but that we are called to the kingdom for just such a time as this?"

WHO IS RON PAUL?

Congressman Ron Paul of Texas enjoys a national reputation as the premier advocate for liberty in politics today. Dr. Paul is the leading spokesman in Washington for limited constitutional government, low taxes, free markets, and a return to sound monetary policies based on commodity-backed currency. He is known among both his colleagues in Congress and his constituents for his consistent voting record in the House of Representatives: Dr. Paul never votes for legislation unless the proposed measure is expressly authorized by the Constitution. In the words of former Treasury Secretary William Simon, Dr. Paul is the "one exception to the Gang of 535" on Capitol Hill.

Ron Paul was born and raised in Pittsburgh, Pennsylvania. He graduated from Gettysburg College and the Duke University School of Medicine, before proudly serving as a flight surgeon in the U.S. Air Force during the 1960s. He and his wife Carol moved to Texas in 1968, where he began his medical practice in Brazoria County. As a specialist in obstetrics/gynecology, Dr. Paul has delivered more than 4,000 babies! He and Carol, who reside in Surfside Beach, Texas, are the proud parents of five children and have seventeen grandchildren.

While serving in Congress during the late 1970s and early 1980s, Dr. Paul's limited-government ideals were not popular in Washington. He served on the House Banking committee, where he was a strong advocate for sound monetary policy and an outspoken critic of the Federal Reserve's inflationary measures. He also was a key member of the Gold Commission, advocating a return to a gold standard for our currency. He was an unwavering advocate of pro-life and pro-family values. Dr. Paul consistently voted to lower or abolish federal taxes, spending, and regulation, and used his House seat to actively promote the return of government to its proper constitutional levels. In 1984, he voluntarily relinquished his House seat and returned to his medical practice.

Dr. Paul returned to Congress in 1997 to represent the 14th Congressional district of Texas. He serves on the House of Representatives Financial Services Committee, and the International Relations committee. On the Financial Services Committee, Rep. Paul serves as the vice-chairman of the Oversight and Investigations subcommittee. He continues to advocate a dramatic reduction in the size of the federal government and a return to constitutional principles.
Dr. Paul is the author of several books, including Challenge to Liberty; The Case for Gold; and A Republic, If You Can Keep It. He has been a distinguished counselor to the Ludwig von Mises Institute, and is widely quoted by scholars and writers in the fields of monetary policy, banking, and political economy. He has received many awards and honors during his career in Congress, from organizations such as the National Taxpayers Union, Citizens Against Government Waste, the Council for a Competitive Economy, Young Americans for Freedom, and countless others.

Dr. Paul's consistent voting record prompted one Congressman to comment that "Ron Paul personifies the Founding Fathers' ideal of the citizen-statesman. He makes it clear that his principles will never be compromised, and they never are." Another Congresswoman added that "There are few people in public life who, through thick and thin, rain or shine, stick to their principles. Ron Paul is one of those few."

Rep. Paul Introduces Three Pro-Life Bills

From Republican National Coalition for Life

May 15, 2003

The following is a statement delivered in the U.S. House of Representatives on April 2, 2003, by Congressman Ron Paul, M.D.

"Mr. Speaker, I rise today to introduce three bills relating to abortion.

"First, the Freedom of Conscience Act of 2003 (H.R. 1548) prohibits any federal official from expending any federal funds for any population control or population planning program or any family planning activity. It is immoral to force the American taxpayers to subsidize programs and practices they find morally abhorrent.

"Second, I rise to introduce the Partial-birth Abortion Funding Ban Act of 2003 (H.R. 1545). This bill prohibits federal officials from paying any federal funds to any individual or entity that performs partial-birth abortions. The taxpayer must not be forced to fund this barbaric procedure.

"Finally, my Life-Protecting Judicial Limitation Act of 2003 (H.R. 1546) provides that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases. Congress must use the authority granted to it in Article 3, Section 1 of the Constitution. The district courts of the United States, as well as the United States Court of Federal Claims, should not have the authority to hear these types of cases.

"Mr. Speaker, it is my hope that my colleagues will join me in support of these three bills. By following the Constitution and using the power granted to the Congress by this document, we can restore freedom of conscience and the sanctity of human life." [emphasis added]

These bills are pro-active measures that, if enacted, would greatly reduce the power and influence of the abortion lobby in this country and at the same time reduce the number of abortions and abortion-related activities currently funded with our tax dollars. Please insist that your Member of Congress support Congressman Paul’s efforts by co-sponsoring these three bills. Capitol Switchboard — 202/224-3121.

Roe v Wade is not the law of the land: Exposing the myth of judicial supremacy

May/June, 2002

By Greg Moeller

Roe v. Wade. This infamous U.S. Supreme Court decision that supposedly "legalized" abortion is rightfully viewed with contempt by millions of Americans who respect the sanctity of life. Widely accepted as the "law of the land," it is held responsible in large part, for the execution of over a million preborn children in the womb in the United States each year. Consequentially, it has been concluded by many that until Roe v. Wade is "overturned" and is no longer the "law of the land," there is nothing substantial that can be done about "legal" abortion.

As tragic as these legal circumstances may seem, there is perhaps an even more tragic aspect to this entire issue, one that is born out of gross ignorance of the plain text of the Constitution on the part of not only the American public, but even many pro-life legislators nationwide. What is it that has gone so wrong after all these years? It's simple. We have been lied to. Roe v. Wade is not a law at all, much less the "law of the land." This is not a matter of opinion, it is a matter of fact, a fact that is easy to understand by simply picking up the Constitution and reading it. So, let's progress to reading a section of the Constitution that legions of lawyers don't want you to know exists.

The first part of the Constitution reveals something powerfully simple:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
—U.S. Constitution, Article I, Section 1

Legislative power is the power to make laws, change laws, change the meaning of laws and eliminate laws. Article I, Section 1 clearly states that all power is vested in Congress. All of it. Period. End of story. What does this mean? It means that federal courts, which are part of the judicial branch of the federal government, have absolutely no legislative power whatsoever. It means federal courts cannot make laws. It means federal courts cannot change laws. It means federal courts cannot change the meaning of laws. It means federal courts cannot eliminate laws. In order to do any of these things, the courts would have to possess legislative power, something the Constitution clearly states is vested only in Congress. How hard is that to understand?

In light of this fact, something regarding Roe v. Wade becomes apparent. Roe v. Wade is not a law at all, even less the "law of the land." It cannot be a law, since it is the product of the Supreme Court, which the Constitution clearly states possesses no legislative (lawmaking) power whatsoever. So, if Roe v. Wade is not a law, then what is it? The answer to that is simple. Roe v. Wade is a court decision, and like all court decisions, it is only binding on the parties to the case. In this circumstance, it is binding on "Roe" and "Wade." No one else.

Now these plain and simple precepts that are derived from the plain text of the Constitution may go against that which is taught in many law schools all across this nation. However, it still doesn't change what the Constitution, the supreme law of the land, actually says on the subject. It only goes to show how far a legal myth can be perpetuated.

Article 3, section 2 of the Constitution also grants Congress the power to limit the appellate jurisdiction of all federal courts. If the Congress so chooses, it could specifically regulate the Court's activity to preclude ruling on cases that would reflect upon the rights of states and local governments to prohibit and prosecute abortion. Indeed, the Supreme Court is not vested with untouchable, unlimited power, as some would have us believe.

The framers were right when they placed limited powers in the hands of the judiciary. They felt since the courts were not vested with either legislative or enforcement powers that they would be the least threat to our liberties. That still would be the case today, if there was not a bipartisan cooperative effort to subvert the Constitution in Washington, and across the country. The Constitution again underscores the need to elect candidates to public office who will hold those judges who would subvert the Constitution and rule outside of their proper jurisdiction accountable.

Don't believe any the excuses given by political parties, organizations or elected representatives who communicate that there is nothing more that can be done for the pro-life cause but to compromise and sacrifice what is right on the altar of political expediency. There is a lot more that can be done, if we only have the will to do so. Those who care about protecting the lives of preborn children need to read the Constitution for themselves and learn the ground rules by which the battle can be won. The Constitution Party, the only national political party that is one hundred percent pro-life, is leading that fight and is worthy of your consideration and support.

Roe v. Wade does not have to be "overturned," for those who defend the lives of innocent children to prevail since it is not a law at all. Let us all do what we can to expose Roe v. Wade for what it really is and start supporting only candidates who will do the same and who are fully committed to restoring constitutional and moral integrity to our system of government.


Greg Moeller is the Constitution Party's regional co-chairman for the central states.

Wednesday, December 29, 2004

Whose Justice?

Congressman Ron Paul

Judicial activism, the practice of judges ignoring the law and deciding cases based on their personal political views, has been a problem in America since well before the Supreme Court invented a right to abortion in Roe v. Wade. Many federal judges have become de facto legislators in recent decades, substituting their self-presumed wisdom for the will of Congress. In the process, the American people have lost more and more power to influence the laws under which they must live.

Activist federal judges often view the Constitution as an anachronism that stands in the way of their visions for “social justice.” They usually view European socialism very positively, and unconditionally believe in the United Nations and international law. Accordingly, activist judges increasingly are looking outside the US for guidance when deciding cases.

This latest brand of judicial activism has a name: “transjudicialism.” Transjudicialism means that American federal judges consider foreign and international legal sources when deciding cases, even though such sources often conflict directly with our own Constitution.

As Robert Bork explains, six of the nine Supreme Court justices have either written or joined opinions that favorably cited foreign authorities. These justices have considered the European Court of Human Rights, various United Nations conventions, international human rights treaties, and even judicial decisions from India, Jamaica, and Zimbabwe when writing their opinions! Simply put, these justices are making the incredible argument that American federal courts should consider sources other than US law when deciding cases. In the words of one justice, the Court “cannot afford to ignore the rest of the world.”

It’s not hard to see the grave danger posed by this new trend. Anti-gun judges could cite restrictions on gun ownership in other countries approvingly when disregarding our Second amendment. Hate speech laws in other nations could be used as authority to weaken the First amendment. Our wholly domestic tax, labor, environmental, and family laws could be influenced by United Nations edicts, foreign court judgments, and international treaties which have not been ratified by the United States.

The US Constitution is the supreme law of the land in America. Congress needs to exercise its constitutional power over federal courts and send judges a strong message that Americans will be governed by American law only. I recently introduced legislation that forbids the Supreme Court and lower federal courts from citing any foreign or international laws, rules, policies, or court decisions as authority for their opinions. Federal judges take an oath of office promising to decide cases in accordance with the Constitution and US federal law. Those judges who insist on considering foreign law and foreign opinions should be removed from their positions for violating that oath, pure and simple. Justice Scalia warns that “Day by day, case by case, the Court is busy designing a Constitution for a country I do not recognize.” Congress needs to act quickly before Mr. Scalia’s fears are fully realized.

Tuesday, December 28, 2004

Resisting Judicial Tyranny

Congressman Ron Paul

July 26, 2004

The US House passed the Marriage Protection Act last week, a bill designed to ensure that the “full faith and credit” clause of the Constitution is not used to impose gay marriage on Texas or any other state. You may remember Congress passed the Defense of Marriage Act in 1996, which explicitly authorizes states to refuse recognition of gay marriages performed in other states. However, the lack of respect federal judges show for the plain language of the Constitution necessitated further congressional action. The Act underscores an important legal point: Marbury vs. Madison did not alter the congressional power to regulate and limit federal court jurisdiction, which is plainly stated in Article III. The drafters of the Constitution gave Congress the power to limit federal jurisdiction to provide a check on out-of-control federal judges. In other words, the federalist concept of checks and balances applies to the judiciary just as it does to the legislative and executive branches. The Marriage Protection Act represents a long-overdue exercise of the congressional power to limit and define federal court jurisdiction.

Americans need to better understand the role of federal courts. The Supreme Court is supreme only over the lower federal courts; it is not supreme over the other branches of government. The judicial branch is co-equal under our federal system, nothing more and nothing less. Yet we’ve allowed federal judges to pursue a social agenda that is at odds with a majority of Americans, in essence converting our courthouses into legislatures. In the process average people have lost even more power to affect the laws under which they must live.

The Founders never intended for a handful of unelected, unaccountable federal judges to decide social policy for the entire nation. Just as Texas is not required to recognize medical licenses, law licenses, or driving licenses from other states, it ought not be forced to recognize gay marriage licenses granted elsewhere. Already some same-sex couples have sued in federal court to force the nationwide recognition of their marriages, so the Marriage Protection Act is needed to preserve states’ rights. Federal judges have flouted the will of the American people for too long, acting as imperial legislators instead of jurists

The definition of marriage- a union between a man and a woman- can be found in any dictionary. It’s sad that we need government to define an institution that has existed for centuries. The best approach to complex social problems, as always, is to follow the Constitution. This means Congress should restrict federal court jurisdiction when necessary, and social matters should be left up to states under the Ninth and Tenth amendments.

Since the Marriage Protection Act requires only a majority vote in both houses of Congress and the president’s signature to become law, it is a more practical way to deal with the gay marriage issue than the time-consuming process of passing a constitutional amendment. In fact, since the Defense of Marriage Act overwhelmingly passed both houses, there is no reason why the Marriage Protection Act cannot become law this year.

Congress has a constitutional responsibility to stop rogue federal judges from using a flawed interpretation of the Constitution to rewrite the laws and traditions governing marriage. The Marriage Protection Act, if passed by the Senate and signed by the President, will protect the people of Texas from having marriage defined by federal judges rather than the Texas legislature.

Monday, December 27, 2004

Confronting the Imperial Judiciary


Confronting the Imperial Judiciary


Congressman Ron Paul


October 4, 2004



Last week’s debate over the constitutional marriage amendment brought even greater attention to the issue of activist judges. From gay marriage to Boy Scouts to frivolous lawsuits to the Pledge of Allegiance, Americans have grown increasingly distrustful and suspicious of our federal courts- and rightfully so. Never in our history have unaccountable federal judges wielded more power over our lives.


Judicial activism, the practice of judges ignoring the law and deciding cases based on their personal political views, has intensified in the decades since Roe v. Wade. This practice is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.


But what is to be done? Since many citizens lack basic knowledge of our Constitution and federalist system, they are easily manipulated by media and academic elites who tell them that judges are the absolute and final arbiters of US law. But the Supreme Court is not supreme over the other branches of government; it is supreme only over lower federal courts. If Americans wish to be free of judicial tyranny, they must at least develop basic knowledge of the judicial role in our republican government. The present state of affairs is a direct result of our collective ignorance.


The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters. Remember, when social issues are federalized, conservatives always lose. Giving more authority over social matters to any branch of the federal government is a mistake, because a centralized government is unlikely to reflect local sentiment for long. If anything, the marriage amendment would have given the secular left an excuse to impose gay marriage on all of us in future years, as the issue would have been irrefutably federalized.


Congressional cowardice enables judicial activism. Just as Congress ceded far too much legislative authority to presidents throughout the 20th century, it similarly has allowed federal judges to operate wildly beyond their constitutional role. In fact, many current members of Congress apparently accept the false notion that federal court judgments are superior to congressional statutes. Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.


The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. As a society we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure. It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not. It’s also time for Congress to start establishing clear limits on federal judicial power.