Our Supreme Court, the rule of law and judicial tyranny

[johnwk]

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In 1803 Chief Justice Marshall wrote:

”The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?” ______ MARBURY v. MADISON, 5 U.S. 137 (1803)

Unfortunately, our Supreme Court has found a clever process to circumvent both the text, and legislative intent of our constitution as it was expressed during its framing and ratification debates … debates which give meaning and context to our Constitution’s text. During this process the very limits agreed to by the people in a written constitution are set aside and replaced by the arbitrary whims and fancies of the Court’s majority, which is then asserted to be the rule of law, but in effect is judicial tyranny. The mechanics of this subversive process is very interesting to study.

One of the Supreme Court‘s methods used to set aside the limits of our constitution are various tests the Court has invented which were unknown to our Founders. These “tests” began to appear and gain a foothold during the Warren Court. One such test [e.g., see Loving v. Virginia, 1967] was the rational based test under which a law being challenged had to withstand the Court’s judgment that the law in question was “rationally based” or “reasonable” to survive the Court‘s review. Of course, this allows the Court’s members to switch the subject from what is and what is not constitutional, to a subjective question having nothing to do with the constitutionality of the law.

Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.

For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.

Keep in mind our wise Founders provided Article V, our Constitution’s amendment process, to change our constitution’s commands and upgrade it to accommodate changing times. And unlike a renegade majority cabal on our Supreme Court ignoring our Constitution’s text and legislative intent, and imposing its personal whims and fancies as the rule of law, our Constitution’s amendment process requires consent of the governed by the limits outlined in Article V, when and if a defect is alleged to be found in our Constitution and change is required.

By the early 1970’s the Court using a variety of invented “tests” [rationally based, compelling state interest, intermediate scrutiny, strict scrutiny, etc.], effectively began to hand down majority opinions which were not based on the text and the documented intentions and beliefs under which our Constitution was adopted. The Court, using this new “test” process to validate its opinions, began to impose its own subjective ideas of social justice, fairness and reasonableness as the rule of law and without regard to the true intent and meaning of our Constitution.

Some of the important cases which demonstrate the Court’s assumption of legislative power by second guessing the wisdom of legislation using these newly created tests are Reed vs. Reed 404 U.S. 71 (1971), Frontiero vs Richardson 411 U.S. 677 (1973), and Craig v. Boren 429 U.S. 190 (1976).

It is also important to note that the ACLU and Ruth Bader Ginsburg, who was a volunteer for the American Civil Liberties Union in the 1970’s, were both active in these cases and assisted the court in inventing clever words and phrases in conjunction with “tests” which were designed to replace our Constitution’s meaning, and in particular the 14th Amendment, with the personal feelings of what the Constitution should mean as believed by a majority of the Court’s members.

In each of these cases the limits of our Constitution were ignored and replaced with the personal and subjective views of Justices as being the rule of law, rather than enforcing the Constitution’s actual text and legislative intent as expressed during its framing and ratification debates.

The bottom line is, for our system to work and evolve as intended by our Founders, and when judges and Justices sincerely believe our Constitution, or a legislative Act, is an affront to their personal sense of fairness, reasonableness or justice, they should express these feelings in minute detail, but go on to explain their job is limited to establishing the true meaning and intent of our Constitution, while Article V is the proper method for change. For judges and Justices to ignore these limitations and impose their personal feelings as the rule of law, is to violate a Public Trust and engage in judicial tyranny.

JWK

"If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?" ___ Justice Story

[johnwk]

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Another method used by our judges and Justices to circumvent our Constitution and impose their personal feelings as the rule of law is a corrupted use of our Constitution’s guarantee to “due process”. Note that our Constitution guarantees due process by the Fifth and Fourteenth amendments.


Amendment V


“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness, against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”


Amendment XIV


Section 1


”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.”



So, what is due process of law within the meaning of our Constitution? If we move onto Amendment VI it indicates what “due process” involves.



”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”


In effect, due process of law refers to procedure and the administration of justice in accordance with specific rules intended to prevent the use of arbitrary power by government. Unfortunately the limited and intended guarantee to Due Process of law [rules governing procedure to prevent an abuse of government power] has been distorted and turned on its head to include an oxymoron called “Substantive Due Process”, a phrase not found in our federal Constitution.


Under “substantive due process” the Court ignores procedural rights and puts on trial legislative acts by second guessing the wisdom of law in accordance with the Court’s personal abstract opinions of fairness, reasonableness and justice ___ a subjective view having nothing to do with procedure rights intended to protect against the abuse of power by government.



To put this another way, the Court, using substantive Due Process, does not determine the constitutionality of a law. Instead, it assumes legislative authority and fashions existing laws in accordance with its own personal predictions and beliefs, even though there is no constitutional basis to strike a law down or uphold it.


Of course, the proper way to address laws which are constitutional but thought to be unfair, unreasonable or an injustice, is our Constitution’s Article V amendment process which involves consent of the governed and the reason and choice of the people.


What is most disturbing about the Supreme Court’s use of “substantive due process” ___ a term nowhere to be found in our Constitution ___ it is one of the vehicles used by the Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by our written Constitution. In many instances, Supreme Court majority opinions are nothing more than a reflection of the majorities’ personal views of justice, fairness, and reasonableness, in addition to being political in nature ___ two relatively recent glaring examples being homosexual marriage and abortion, and in each case neither subject matter is within the Supreme Court’s jurisdiction.


JWK

"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" ___ Justice Clarence Thomas, Perry v. New Hampshire, 565 U.S. 228 (2012)

[Sonny Tufts]

homosexual marriage and abortion, and in each case neither subject matter is within the Supreme Court’s jurisdiction.

The determination whether a law violates the Equal Protection Clause of the 14th Amendment is definitely "within the Supreme Court's jurisdiction", and the Court determined that bans on same-sex marriage did so. One needn't rely on the Due Process Clause, although the Court held that both clauses were violated in the Obergefell case.

[johnwk]

The determination whether a law violates the Equal Protection Clause of the 14th Amendment is definitely "within the Supreme Court's jurisdiction", and the Court determined that bans on same-sex marriage did so. One needn't rely on the Due Process Clause, although SECTION ONE EXPLAINED

You will have to explain why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.


What is primarily in dispute, and rightfully so, is the unsubstantiated assertion the wording "Equal Protection" found in the Fourteenth Amendment is violated in state legislation banning the issuance of a marriage license to a same sex couple.

Now, just what does the 14th Amendment's text state in crystal clear language:


The 14th Amendment declares in crystal clear language:

”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


As we can see from the language of the 14th Amendment it:


1. Makes ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof” … citizens of the United States and of the State wherein they reside.”


The amendment then goes on to declare:


2. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that the wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be "citizens of the United States"! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.


The amendment then continues with:


3. “… nor shall any State deprive any person of life, liberty, or property, without due process of law..”


This wording applies to “any person” as opposed to “citizens of the United States” and It expressly forbids every State to deprive any “person [within its jurisdiction] of life, liberty, or property without due process of” a State’s laws. Due process of law refers to procedure and the administration of justice in accordance with established rules and principles.


This section of the Amendment then concludes with:


4. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”


This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws. The laws, by the text of this wording requires every law must be enforced equally upon every person.



So explain, Sonny Tufts, by what wording in the 14th Amendment does a law restricting marriage licenses to one male and one female is unconstitutional. You are free to use the wording of the Court alleging the amendment is violated by such a law.


JWK


"[T]he Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" Justice Clarence Thomas Perry v. New Hampshire, 565 U.S. 228 (2012)

[johnwk]

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Our courts are required by our federal Constitution to strike down laws which violate that Constitution. But there is a distinct difference in striking down a law which is not in harmony with the text of our Constitution and/or its legislative intent as expressed during its framing and ratification debates, and, our courts striking down legislation because the court feels the law in question is unfair, unreasonable, or unjust ___ each of which is a subjective opinion.

For example, in Lochner v. New York (1905) the question presented to the Supreme Court was:

Does a state law prohibiting a business owner to allow an employee to work more than 60 hours a week or 10 hours a day violate “liberty”, alleged to be protected by the Due Process Clause of the Fourteenth Amendment?

The Court struck the State law down asserting the statute interfered with the freedom to contract which in turn supposedly violated the Fourteenth Amendment's right to liberty afforded to employer and employee. The majority concluded the law had no rational basis and violated the due process wording of the Fourteenth Amendment.

But nowhere in the wording of Fourteenth Amendment is a state prohibited to enact legislation thought to promote the general welfare of its citizens. The restriction being, under the Fourteenth Amendment is, whatever laws a State enacts, those laws are to be enforced equally upon its citizens.

Yes! The New York law in question does, in my mind, violate an inalienable right to contract. But the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens. For the Court to meddle as it did in this case is to violate the Tenth Amendment and powers reserved by the States and people therein, and circumvent the very purpose of Federalism, our Constitution’s “big tent” plan.

Was the bake shop owner denied procedural rights guaranteed by the Fourteenth Amendment’s due process clause? I found absolutely nothing in the case to remotely suggest procedural rights were denied. What I did find is, the majority on the Court ignored the limitations of the Fourteenth Amendment and projected its personal views of a State law being ”… fair, reasonable, and [an] appropriate exercise of the police power of the state …” as being the rule of law, while it ignored the narrow limitations of the Fourteenth Amendment.

Do we really want our Supreme Court to morph itself into an omnipotent, unreviewable, legislative body, where judicial decisions are no longer restricted and bound by a written Constitution? If so, then we must abide by Article V, our Constitution’s amendment process, and grant this totalitarian power to the Supreme Court.

JWK

As to our Constitution being a "living document", that life is found only in Article V, a protection demanding the people's participation and consent when change is thought to be necessary.

[Sonny Tufts]

You will have to explain why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.

Your use of the word “jurisdiction” is misplaced. Article III, Section 2 of the Constitution makes is clear that federal courts have jurisdiction to hear cases arising under the Constitution and that the Supreme Court has appellate jurisdiction over such cases, subject to such exceptions as Congress might make.

By focusing on the subjects of abortion and same-sex marriage and arguing about jurisdiction you seem to be suggesting that under no circumstances could a law touching these subjects ever be unconstitutional, which is absurd. To take an extreme case, suppose a State were to enact a law that said that only white Christians could obtain marriage licenses. I would hope that you would understand that such a law raised serious constitutional issues that the Court had jurisdiction to determine and that it would easily invalidate the law on First Amendment and equal protection grounds.

So explain, Sonny Tufts, by what wording in the 14th Amendment does a law restricting marriage licenses to one male and one female is unconstitutional. You are free to use the wording of the Court alleging the amendment is violated by such a law.

So the issue isn’t one of jurisdiction; it’s whether laws that restrict marriage licenses to same-sex couples violates the Equal Protection Clause. Reasonable minds may differ, although you undoubtedly feel that the validity of such laws is as patently obvious as 2 + 2 = 4. And let’s not get into the issue of whether the government should be involved with marriage in the first place; the plain fact is that it is involved, and a lot of legal relationships result from a civil marriage. It is no answer to say that some of these relationships (e.g., inheritance, support, and marital property rights) can be established for same-sex couples through private contractual arrangements, because these relationships result automatically from marriage whereas a same-sex couple would have to go through the time and expense of having an attorney draw up the necessary paperwork for a lot more money that the cost of a marriage license. Moreover, some of these relationships can’t be achieved through private contracts – e.g., the right to file a joint income tax return or the spousal evidentiary privilege. This fact was recognized by Justice Kennedy in his Obergefell opinion:

… while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules…The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning…

...in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of coverture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. [citations omitted] Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution…

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. (emphasis added)

Keep in mind the wording [of the EP Clause] does not forbid a state to make distinctions in law, e.g., based upon sex or age

But not all distinctions based on sex are constitutional. Would you seriously claim that a statute (such as the Georgia statute cited in the Kennedy opinion, above) that enshrined the common-law rule of coverture (under which married women had few if any property rights) was constitutional? How about one that said that only men could obtain a license to practice law, accounting, engineering, or medicine?

the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens.

Really? If a State feels that the intermingling of the races is harmful to the general welfare, it is entitled to have racially segregated public schools and anti-miscegenation laws?

[johnwk]

Your use of the word “jurisdiction” is misplaced.

You gave a lengthy response but never explained why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.



JWK

[johnwk]

So the issue isn’t one of jurisdiction; it’s whether laws that restrict marriage licenses to same-sex couples violates the Equal Protection Clause. Reasonable minds may differ,

Again, you offered a very lengthy response, but never pointed to the wording in the 14th Amendment forbidding states to restrict marriage licenses to one male and one female.

JWK

[johnwk]

the Fourteenth Amendment was not intended, nor does it by its language, allow the federal government to second-guess the wisdom of a State’s Legislature enacting a law thought to promote the general welfare of its citizens.

Really? If a State feels that the intermingling of the races is harmful to the general welfare, it is entitled to have racially segregated public schools and anti-miscegenation laws?

Judging the wisdom of legislation as distinguished from what the 14th Amendment forbids [a distinction in law based upon race] are two entirely different matters. Do you not understand the meaning of words?


JWK

[Sonny Tufts]

You gave a lengthy response but never explained why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.

Because it raises an issue arising under the Constitution. You apparently don't understand III.2 of the Constitution.

Again, you offered a very lengthy response, but never pointed to the wording in the 14th Amendment forbidding states to restrict marriage licenses to one male and one female.

Don't be dense. Where is the wording forbidding states to have racially segregated schools or anti-miscegenation laws? It's called the Equal Protection Clause.

[johnwk]

. To take an extreme case, suppose a State were to enact a law that said that only white Christians could obtain marriage licenses. I would hope that you would understand that such a law raised serious constitutional issues that the Court had jurisdiction to determine and that it would easily invalidate the law on First Amendment and equal protection grounds.

In respect to your white Christian example, a law making a distinction based upon race, the Constitution forbids such distinctions in law and thus it would be a case arising under “this Constitution”. As to the First Amendment in your example, which is part of the first ten amendments added to our federal Constitution, those Amendments were specifically adopted as restrictions upon the Federal Government and were not intended to be enforceable upon the states by the federal government.

JWK

[johnwk]

You gave a lengthy response but never explained why the subject matter of abortion and/or marriage is within the Supreme Court's jurisdiction.

Because it raises an issue arising under the Constitution.

Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.





JWK

[johnwk]

Again, you offered a very lengthy response, but never pointed to the wording in the 14th Amendment forbidding states to restrict marriage licenses to one male and one female.

Don't be dense. Where is the wording forbidding states to have racially segregated schools or anti-miscegenation laws? It's called the Equal Protection Clause.

Try reading the following very slowly.

4. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”


This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws. The laws, by the text of this wording requires every law must be enforced equally upon every person.

JWK

[Swordsmyth]

In respect to your white Christian example, a law making a distinction based upon race, the Constitution forbids such distinctions in law and thus it would be a case arising under “this Constitution”. As to the First Amendment in your example, which is part of the first ten amendments added to our federal Constitution, those Amendments were specifically adopted as restrictions upon the Federal Government and were not intended to be enforceable upon the states by the federal government.

JWK

Only the 1stA states that its effect is limited to Congress.

In everything else you are absolutely correct.

All people were allowed to marry a person of the opposite sex and therefore had equal protection under the law.

[Sonny Tufts]

As to the First Amendment in your example, which is part of the first ten amendments added to our federal Constitution, those Amendments were specifically adopted as restrictions upon the Federal Government and were not intended to be enforceable upon the states by the federal government.

That was indeed the original intent, according to the Supreme Court; see Barron v. Baltimore. But as you well know the 14th Amendment has been held to have incorporated the prohibitions of the First Amendment and made them applicable to the States. While this has been done via the 14th's Due Process Clause, any restriction of marriage licenses to Christians would clearly be an equal protection violation.

Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.

All state practices that violate the 14th are subject to federal control. Or does your copy of the Constitution fail to include Article 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."?

The Tenth Amendment is beside the point, and if anyone should read it, you should: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." So if a state law is prohibited by the 14th, it doesn't matter that it deals with marriage, abortion, or any other subject, and in such a case the 10th is inapplicable.

Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex

You have conceded that the EP Clause prohibits making distinctions on the basis of race, but since nothing in the wording of the Clause restricts it to racial discrimination it can presumably apply to other distinctions. You never answered my question whether a state law prohibiting women from getting certain professional licenses would be constitutional; I suspect your failure to do so is because you realize a negative answer would force you to acknowledge that, indeed, there are certain classifications other than racial ones that violate the 14th, and you're loath do to this because such an admission would undermine your arguments against the Obergefell decision.

[Sonny Tufts]

All people were allowed to marry only a person of the opposite sex and therefore had equal protection under the law.

Fixed it for you. Now consider a situation in which a black person was prohibited from marrying a white person and vice versa. Did they get equal protection? After all, all whites were allowed to marry whites (assuming they were of opposite sex and not too closely related), and all blacks were allowed to marry blacks (subject to the same restrictions).

[Swordsmyth]

Fixed it for you. And since in certain states all people had the right to marry only a member of the same race, they also had equal protection?

Yes they did, you can say that it was wrong and you might even say that it was unconstitutional for some other reason but you can't say they didn't have equal protection.

[Swordsmyth]

All state practices that violate the 14th are subject to federal control. Or does your copy of the Constitution fail to include Article 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."?

"this article" please read the article in question, the entire Constitution is not "this article".

[Sonny Tufts]

"this article" please read the article in question, the entire Constitution is not "this article".

I never claimed it was. I was rebutting any implication that Congress has no authority to legislate regarding the 14th Amendment in areas where it wouldn't otherwise have authority, such as public schools.

you can say that it was wrong and you might even say that it was unconstitutional for some other reason but you can't say they didn't have equal protection.

Not only can I say it's a violation of EP but so can (and did) SCOTUS in the Loving case, a unanimous decision.

[Swordsmyth]

I never claimed it was. I was rebutting any implication that Congress has no authority to legislate regarding the 14th Amendment in areas where it wouldn't otherwise have authority, such as public schools.

The 14thA isn't part of the article.

Not only can I say it's a violation of EP but so can (and did) SCOTUS in the Loving case, a unanimous decision.

You would be just as wrong as they were.

[Sonny Tufts]

The 14thA isn't part of the article.

The 14th is the article. The same phrase was used in the 13th, 15th, 19th, 24th, and 26th Amendments. The phrase says "this article", which can only refer to the amendment of which the phrase is a part.

You would be just as wrong as they were.

You obviously don't know what was involved in Loving. An interracial couple was married in the District of Columbia and moved to Virginia, where they were later arrested for violating a Virginia law that made it a crime for an interracial couple married in another State to cohabitate in Virginia. The offense was a felony punishable by imprisonment from 1 to 5 years. The State's initial argument in support of the law is similar to your own: "...the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race." But the Court didn't buy it:

...the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race...The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States...there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate...

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

In a concurring opinion Justice Stewart cited what he had said in a previous case: "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

Suffice it to say, the Court got it right, and you and Virginia didn't.

[Swordsmyth]

The 14th is the article. The same phrase was used in the 13th, 15th, 19th, 24th, and 26th Amendments. The phrase says "this article", which can only refer to the amendment of which the phrase is a part.

You had cited Article 5, you are correct that the 14A contains that phrase as well.

You obviously don't know what was involved in Loving. An interracial couple was married in the District of Columbia and moved to Virginia, where they were later arrested for violating a Virginia law that made it a crime for an interracial couple married in another State to cohabitate in Virginia. The offense was a felony punishable by imprisonment from 1 to 5 years. The State's initial argument in support of the law is similar to your own: "...the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race." But the Court didn't buy it:



In a concurring opinion Justice Stewart cited what he had said in a previous case: "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

Suffice it to say, the Court got it right, and you and Virginia didn't.

How can I get it right when you didn't provide the relevant details?
It is one thing to outlaw mixed marriages in your state and an entirely different thing to ban the cohabitation of couples legally married in another state.
It is an entirely different thing yet to change the historical definition of marriage from something that is between members of the opposite sex and force a state to recognize the new definition.

[johnwk]

That was indeed the original intent, according to the Supreme Court; see Barron v. Baltimore. But as you well know the 14th Amendment has been held to have incorporated the prohibitions of the First Amendment and made them applicable to the States. .

I know what the Supreme Court has "held". And it engaged in judicial tyranny in doing so.

With regard to the “Bill of Rights” we find the founders expressed intentions in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789


THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added .


And Madison, speaking on the very issue regarding these amendments to the Constitution indicates they were to preserve and protect “federalism” our Constitution’s plan, which reserves to the States all powers not delegated to Congress. He says:


“It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism” ___See :Madison, June 8th, 1789, Amendments to the Constitution

The bottom line is, the first ten amendments were adopted as a written protection to keep the freaken federal government’s nose out of the State's internal affairs.


And with regard to the 14th Amendment, as stated by one of its supporters:


“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shellabarger, Cong. Globe, 1866, page 1293

JWK



The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

[johnwk]

Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.

All state practices that violate the 14th are subject to federal control. Or does your copy of the Constitution fail to include Article 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."?

You didn't satisfy the question: Point to the wording under which marriage and abortion are subject matters delegated to the federal government. And, don't forget to read the Tenth Amendment and powers retained by the States and people therein.


Aside from that Federalist Paper No. 45 tells us:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.


So, what wording in the federal Constitution delegates a power to our federal government to enter the states and regulate the issuances of marriage licenses?


JWK

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? ______ MARBURY v. MADISON, 5 U.S. 137 (1803)

[Sonny Tufts]

How can I get it right when you didn't provide the relevant details?

How can you get it right when you don't even read the case? Yet that didn't stop you from claiming that the Court got it wrong.

It is one thing to outlaw mixed marriages in your state and an entirely different thing to ban the cohabitation of couples legally married in another state.

But under your view of the meaning of the Equal Protection Clause, that wouldn't matter. After all, both blacks and whites were equally subject to the law, right?

You had cited Article 5

My bad -- I meant to refer to Section 5 of the Amendment.

[johnwk]

You have conceded that the EP Clause prohibits making distinctions on the basis of race,

Provide the quote.


JWK

[Swordsmyth]

How can you get it right when you don't even read the case? Yet that didn't stop you from claiming that the Court got it wrong.

I trusted your claim about what the case involved, clearly trusting you was a mistake.

But under your view of the meaning of the Equal Protection Clause, that wouldn't matter. After all, both blacks and whites were equally subject to the law, right?

It wouldn't violate equal protection, it would violate other rights.

[Sonny Tufts]

You didn't satisfy the question: Point to the wording under which marriage and abortion are subject matters delegated to the federal government

And you still don't understand the issue. It's not whether the federal government has the authority to regulate marriage in a general sense; it doesn't. The issue is whether a state's marriage law violates the 14th Amendment. If it does, it's unconstitutional, period, and Congress has the authority to legislate regarding it.

Paraphrasing Groucho Marx, it's so simple a six-year-old could understand it. Run out and get me a six-year-old; Johnwk can't make heads or tails of it.

[Sonny Tufts]

Provide the quote.

It's in the OP: "For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race"

[johnwk]

You obviously don't know what was involved in Loving. .

With respect to Loving v. Virginia, the legislative intent of the 14th Amendment was to prohibit distinctions in law based upon race, and this is the only reason for reversing the Lovings’ conviction. The Court's nonsense about a law not having a rational basis being grounds for the Court to strike down a law is a creation of our modern day courts to second guess and assume legislative powers, and therefor judicial tyranny!


Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.


For example, imagine today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.


JWK



"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968