It appears that the Senate race in Alabama between Republican Roy Moore and Democrat Doug Jones is now a dead heat. The tie in the normally reliable red state reflects controversial views of Moore who was twice removed from his job as chief justice of the Alabama Supreme Court for defying federal court orders. One of his most alarming recent statements concerns the Supreme Court. Moore told followers that he would support the impeachment of any justice voting in favor of same-sex marriage, a position that would destroy the integrity and traditions of our legal system.
Moor was introduced at the speech by Abraham Hamilton who heralded Moore for putting his faith above the Constitution and call him “the tip of the spear in what we need to usher America back into its place in submission to our holy God.”
Moore then took the microphone and declared that Congress should have impeached the Supreme Court justices who affirmed the right of same-sex couples to get married:
“Somebody should be talking to the Supreme Court of the United States and say, ‘What gives them a right to declare that two men can get married?. . . Tell the Congress: Impeach these justices that put themselves above the Constitution. They’re judicial supremists and they should be taken off the bench.”
So Moore believes that he should not have been removed from the bench for putting his personal religious beliefs above the Constitution, but justices should be removed if they interpretation the Constitution in a way that contradicts his religious beliefs. This, he insisted, would “solve the problem.”
The “problem” appears to be justices following their good-faith interpretations of the Constitution. While hardly a first for Moore, such a view would violate not just fundamental principles of judicial review but it would violate the impeachment clause. As the last lead counsel in a judicial impeachment case (in defense of Judge Thomas Porteous), Moore’s view is deeply troubling. As I have previously written, the Good Behavior Clause of Article III was designed to protect the independence of the judiciary and insulate it from political pressures. It was meant as a guarantee of life tenure against precisely the type of threat that Moore is endorsing. As Alexander Hamilton explained in The Federalist No. 78:
In a monarchy [the good behavior standard] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body….[I]t is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
In the records of the Constitutional Convention, it is clear that the Good Behavior Clause protects the institution of the judiciary. Likewise, James Wilson described the Good Behavior Clause as intended to protect judges from “every gust of faction which might prevail in the two branches of our [government].”
In impeachment terms, differing judicial interpretations cannot be deemed a case of “treason, bribery, and other high crimes and misdemeanors.” If that were the case, each party could move to “clear the bench” of jurists who hold opposing interpretative views. It would lead to the destruction of the American judicial bench and values.
What is so disturbing is not that Moore would take such an extreme position (given his prior defiance of fundamental principles of judicial review). Rather it is the rapturous applause from the crowd as he called for the evisceration of judicial independence in the United States. There was little thought to the implications of his statement or the obvious threat to religious view if the majority can simply remove those who oppose their values from the bench. Tomorrow another religion or non-religious view could hold the majority and strip the courts in their favor. Our federal courts would then become little more than vehicles for majoritarian tyranny as they are in countries like Iran and Saudi Arabia and China. For example, Article 2 of the Iranian Constitution states that law “is a system based on belief in … the One God … His exclusive sovereignty and the right to legislate.” Thus, courts must follow Sharia principles and are subject to removal for defying “the One God.”
Moore would have Congress punish jurists who fail to follow its dictates on the law. It is the very danger that Madison warned against in Federalist 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
If the U.S. Supreme Court ruled bans on same-sex marriage as being Unconstitutional, then they are by definition Unconstitutional. As with all other laws that go before the U.S. Supreme Court because of the issue of its Constitutionality or lack thereof regarding said laws, should the U.S. Supreme Court not be able to have the final say from a Constitutional standpoint?
This whole thing illustrates precisely why government never should have had a role in regulating marriage. Progressives are to blame. They created the marriage license to keep marriage between races from happening – remember, before they were inclusion-mongers they were eugenicists that openly advocated for a holocaust against black people. The marriage license brought with it revenue and once the government’s getting paid they government’s always getting paid. Marriage should have remained a province of religion. I’m sure gays could have formed a religious body and married each other without state involvement as required.
Marriage licenses-the idea that you need a license to validate a marital relationship is backwards.
Agreed.
NOT WHEN IT COMES TO PROPERTY, REAL ESTATE, ETC…IT IS IMPORTANT FOR PEOPLE OF CHILDBEARING AGES TO HAVE A MARRIAGE LICENSE FOR THE CHILDREN, BECAUSE TO THEM IT TELLS THEM YES, THIS IS A DECLARATION THAT WE ARE FAMILY. MARRIAGE AND LICENSES SHOULD ALWAYS BE ENCOURAGED, AS IT IS THE ROCK OF CIVILIZATION. IF A PERSON IS NOT LEGALLY MARRIED TO YOU, WHO TELLS THEM THAT THEY CAN NOT LEAVE YOU WITHOUT PROVISIONS OF SUPPORT, ETC…THERE ARE PROPERTY AND ASSETS INVOLVED, NOT TO MENTION CHILD SUPPORT AND MUCH MORE. THIS IS STUPID TO EVEN THINK THAT A COUPLE SHOULD NOT HAVE A MARRIAGE LICENSE. A REBELLION ON WHAT SHOULD BE, IS NOT LIVING A LIFE NOR IS IT CONSTRUCTING ONE. IF A COUPLE DOES NOT HAVE A MARRIAGE LICENSE, NEITHER ONE CAN PROVE ADULTERY, SHOULD THIS EVER TAKE PLACE, SINCE THERE IS NO LICENSE COMMITTING ONE PERSON TO ANOTHER. YOU CAN NOT LIVE EVERY WHICH WAY, IT SIMPLY DOES NOT WORK.
futuret – you deal with marriage through partnership law.
Regarding the constant reliance upon “equal protection” to justify federal judiciary’s imposing same-sex marriage upon the laws, this:
1. Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves by means of thousands of quotes from the Congressional Debates, that the purpose of Sec. 1 of the 14th Amendment was to extend citizenship to freed slaves and to protect them from southern Black Codes which denied them basic God given Rights.
2. The “equal protection” clause within Sec. 1 of the 14th Amendment says:
No State shall “…deny to any person within its jurisdiction the equal protection of the laws.”
In Ch.10 of his book, [go to page 222 of this pdf ed], Prof. Berger shows the true meaning of the “equal protection” clause: The “equal protection” was limited to the rights enumerated in The Civil Rights Act of 1866. Section 1 of the Civil Rights Act of 1866 says:
“Be it enacted by the Senate and House of Representatives of the United States of America …
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
This 1866 Act thus secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property. “Political rights” were excluded [Remember, the 14th Amendment did not give freed slaves the right to vote]. But respecting the rights listed in the Act, States were now required to treat blacks the same as whites. THAT is what the “equal protection” clause in the 14th Amendment means.
3. So, the “equal protection” clause is not a carte blanche invitation for federal judges to thereafter prohibit States from making any “distinctions” or “classifications” on any subject whatsoever in any of their State Laws or State Constitutions which five (5) judges on the US Supreme Court don’t agree with!
But that is what federal judges have been doing. And they have decided that, respecting marriage, “classifications” and “distinctions” based on male and female genders are unconstitutional as in violation of the equal protection clause.
What unadulterated RUBBISH emanates from the fetid recesses of the minds of the federal judges in this Country.
Will these judges next say that State Statutes which prohibit close relatives from marrying make “distinctions” and “classifications” which violate the equal protection clause?
4. To my fellow Citizens, I say: For Heaven’s Sake, People! Use your heads! God gave you a brain – use it!
5. To my fellow lawyers, I say: Watch The Matrix, Part I. Pay close attention to the passage where Morpheus is offering the blue pill and the red pill to Neo. Morpheus later says, “I am trying to free your mind, but I can only show you the door. You are the one who has to walk through.” Note the descriptions of the Matrix thereafter and of the people who are still plugged in. What you have been told, beginning with your first year in law school, is a lie. Lawyers who accept the lies are plugged in to the Matrix. The red pill signifies opening your eyes. I offer you the red pill. Open your eyes.
2nd line above, I meant “States”, not “laws”. My fingers move faster than my brain. Sorry.
So sad. I have something to tell you. Merely because you, and some author, apparently aren’t happy with the trajectory of the 14th Amendment doesn’t mean that my 1L professors were telling me a “lie.” Moreover, If you were paying attention to your 2L and 3L professors, you’d know that “congressional debates” are little more than those thoughts, desires, hopes and dreams of a few representatives that weren’t accepted by a majority of the legislators and consequently didn’t make it into the text of the actual statute or amendment. (As a homophobe you are undoubtedly aware that Scalia was fervent in his belief that “legislative history” or “congressional debates” doesn’t mean squat in relationship to the actual text of the bill which was passed).
So we have the actual text of the 14th Amendment. Under our system of government, who is assigned the task of interpreting the text of laws, regulations and amendments? Why, that’s the Supreme Court. Further, the Supreme Court’s opinion is the final word on the matter, unless you think there are enough people who care about who the next person wants to sleep with to the point of a Constitutional Amendment. Good luck with all that. Pro tip: life is too short to worry about who consenting adults wish to sleep with.
This is to “but, but, they’re GAY!” jimmy
Jim Delaney, the equal protection clause of the 14th Amendment to the U.S. Constitution should render the idea of a Constitutional Amendment to define marriage as null and void. This legal definition claptrap is absurd.
I agree. Further, I find it almost amusing that people are willing to apply an incredibly elastic interpretation of the 14th Amendment in support of their view on this topic, yet where are they when the 1st, 2nd, or in the case of California even the 3rd Amendment are being whittled away before our very eyes?
Andrew, if a relationship between a same-sex couple breaks nobody’s leg, nor picks their pocket, then the issue is pointless to be debating. If you know anybody personally who opposes same-sex marriage, here is a question that you should consider asking them: What business is it of yours who someone marries?
This is about far more than what Judges voted fot Gay marriage and what judge Ray thinks should happen to them. Still that is what many of these comments are about, But I am still asking How federal courts had jurisdiction in marriage which has NEVER been a federal issue. Marriage has Always been a states right to regulate and control. I still think of these words “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.” and ask what part of that the judges failed to understand.
Solvermn, you’ve neglected The Ninth Amendment guarantee of rights retained by the people in favor of The Tenth Amendment guarantee of powers reserved to the States or to the people. Likewise, states cannot make any law abridging the privileges and immunities of citizens of the United States, nor any law that would deny to any person equal protection of the law. Ordinarily The Constitution is not supposed to nullify itself.
LateforDinner
I understand your position. But does that “equal protection of the law” not mean prosecutorial discretion is without constitutional basis? Why else would we allow Colorado to Openly take part in drug dealing, or illegal aliens to pubicly identity themselves with no fear of arrest ? Marriage is both a civil and religious action. It is not a ” right” but rather something states have chosen to take part in. Nor are county and cities Required to “perform” them. The constitution clearly lays the basis for the religous part of marriage but there is none for the civil part of it nor are there federal laws regulating it. So my position stands. As for Mr. Moore. All Government officials appointed or elected should be subject to removal by we the people, No exceptions.
Solvermn, you have me temporarily stumped on the Colorado question. I’m not a lawyer. I’m guessing that there is a long tradition of common law rights going back at least as far as Merry Old England and possibly even all the way back to Roman Law that is, or might conceivably be, protected by The Ninth Amendment. I’m further guessing that the States regulate marriage because the preceding common law tradition settled property disputes, inheritance disputes and marital disputes involving commoners in England. Assuming that at least some of my guesses about the common law might be true seems to me to be the best explanation for the absence of clauses in the U. S. Constitution on the subject of marriage. The framers, in my view, assumed that marriage was not a federal issue or question because it had previously been an issue or question for the common law. Thus The Ninth Amendment–also in my view–protects the common-law right of marriage.
Diane – the Constitution was written for the federal government. Full stop.
I understand your position on marriage, but you are not entirely correct. Marriage has not always been a religious enterprise. In ancient theocratic societies, marriage was closely united with some religious ritual, but still understood as a relationship within the social context. The Catholic Church did not have a “marriage ritual” until the thirteenth century. In most every country outside of the United States, couples are “married” civilly, and then, if the wish, have their marriage blessed through some religious tradition. The United States allows religious traditions to witness the marriage for the state, but this is a privilege granted to the religious order. This is evidenced by the requirement that couples secure a “marriage license” from a civil authority before any civil or religious action can be binding. And, while I whole heatedly agree that “marriage” is only truly between one man and one woman, I do not deny the issues of justice in recognizing a union between two members of the same sex. Further, concerning your conclusion that “all Government officials appointed or elected should be subject to removal by we the people, No exceptions” does not address the issue originally discussed. Mr. Turley did not suggest that Justices could not, not should not ever be removed, but that the issues for removal must be more than a matter of the popularity of a judicial decision. Thus the better standard is the “good behavior clause”.
Well said. Still you did not address. The position that marriage is a states issue. 50 states with no federal input till now..
I thought I did address the issue of the “status” issue, but perhaps this reply might add some clarification. The term “”marriage” is by and large, an understanding promoted in religious rites. Differing religions have differing rituals. It is out of this long standing, multi religious tradition that I consider “marriage” a conventional relationship between one man and one woman. This is a religious belief. Historically, the civil “state” is the ultimate definer of what defines a marriage. There is historical precedent for civil governments to legally recognize same sex relationships as having an equal status to conventional marriages. The issue that the courts need to address is not the “vulgarity” or “righteousness” of human relationships, but that if denying equal protection from specific classes of people on the merit of their agreement with a particular religious understanding, is not in fact, a violation clause of the First Amendment. The allowance for legalizing same-sex relationships is a justice issue. Same sex couples should have the same rights of tenancy, visitation in hospitals, access to a partner’s health care. I do not see this position as any endorsement of their relationship, but a recognition that people do not lose the status of human person because they live and experience life differently than I.
I’d argue that government involvement in marriage violates the First Amendment.
Pretty dopey argument.
Why? Marriage is a religious institution. For government to sanction a religions practice would be a violate the First Amendment – no different than if government established a board to oversee Ashura Husseiniyas.
Marriage is a “state’s issue”, and the Supreme Court did not deny the right to regulate marriage. However, the Supreme Court decided in favor of a petitioner complain against a state on the basis of an infringement upon the personal right of choice. A protection guaranteed by the 14 th Amendment. The state could not provide sufficient cause to support the exclusion of same sex marriages. Obviously the 1 st. Amendment would prevent a “religious” objection to be the sole basis of the exclusion. The state was responsible to demonstrate just how “same-sex” marriages threaten society. The attorneys presenting the arguments for the state did not satisfy the Justices criteria for a legitimate exclusion of same-sex marriages. The same argument was made in 1972 in the roe v. wade decision. It is the responsibility of the state to demonstrate a legitimate threat to the good of society before enacting laws that impinge a person’s freedom of choice.
The overriding power of the United States Constitution controls over anything some local yokels want to enact. Courts are entrusted with interpreting laws, a law that runs afoul of the United States Constitution is a nullity, but it takes a court action to determine such. That may be the part you “failed to understand.”
this is to “what’s equal protection?” solvey
You’d be hard put to find a ‘Yokel’ who wasn’t your intellectual and moral superior.
The plain meaning of ‘equal protection’ has been stated by Prof. Lino Graglia: as a directive to executives to enforce laws impartially and consistently. It’s use as a roving mandate for appellate judges to annul laws they don’t like is an act of piracy.
TurleysSpam you are correct in your comments on Equal Protection. Moore’s comments on removing. (Impeachment) judges did not go far enough. All Government officials appointed or elected should be subject to removal by we the people, No exceptions.
Keep it simple. There was not nor is not any federal law or regulation governing marriage. So where in the constitution has the court been the right to Take authority not expressly given to it?
The root of the problem is that state involved itself in marriage at all, and attached the institution to benefits.
I expect in time we’ll see a fraternity getting married for the benefits. I cannot fathom why, if gender is variable in marriage, the number of parties engaged in the contract should be limited to two.
Therein lies the problem. The state reared its ugly head and turned a sacred institution into just another regulated contract. As a result, today we debate these sorts of things and struggle to apply a sacred sense of morality upon what are in effect business deals.
You’ve boiled it down to its essential elements. Not rocket science.
You are lacking in your knowledge of history. Before Utah could be granted Statehood, they had to outlaw bigamy, a religious option for Mormons. A position upheld by the U.S. Supreme Court. The court argued that this was a country founded on “Judaeo/Christian Principles” and the understanding of one man / one woman was a dominant principle in these two religions. (Begs the question of just how the 1st. Amendment fits in with this decision, but it was almost 200 years ago.)
And I would call that a judicial usurpation. Worst, a bribe to obtain statehood. History is filled with federal judicial overreach. And yet so many of us still condone those usurpations. I just don’t get it. Lazy?
I often wish I had followed through with my wish to become a lawyer. I did not, and significantly challenged to argue any point of law. I consider myself a man of principle, reasonable faculties of judgment, and an appreciation for the lessons of history. I agree completely with your arguments promoting the protection of the judicial system from the threats of populism. It is a major back-bone of our “three branch” system. The argument that I do not see presented in your post, though, is the argument demonstrating how “same-sex” marriages are a threat to human society. If procreation were the litmus test for the validity of marriage, then should unfertal men and women be barred from matrimony? Or, is there another aspect within the context of marriage that at least equals the possibility of procreation: namely the relationship between persons? Same-sex relationships are capable of strong, loving monogamous relationships, just as heterosexual relationships. Is, in fact, a major part of our repugnance of same-sex relationships a response derived from our religious upbringing. (Believe me, I am NOT condemning religious upbringing. I wish more people had it.)
I didn’t realize the founders invested so much divine authority in the judicial branch. Strange, but I thought the judiciary was, by design and purposefully, the weakest branch of the government. Man, they’ve come a long way, huh? Now it’s “judicial supremacy” which rules, not “constitutional supremacy”. Finally, Art III limits the courts severely, but you wouldn’t know it. We are now ruled by 9 unelected, black-robed, unaccountable, divine-right judicial oligarchs. And all this time I thought the founders invested such sweeping authority in We the People. How terribly wrong I’ve been. To our leaders in the federal judiciary, Seig Heil!
You are a yokel.
Allow me to play the role of antique here. I was living in California when the ballot initiative was all the rage – back when all those allegedly oppressed gays were openly vandalizing churches as the vote approached. Before there was the demand for gay marriage:
– Civil unions were legal and were identical to hetero marriages less half a dozen items. A simple modification to civil union laws could have resolved this.
– It was warned that once gay marriage was deemed legally permissbile, the flood gates would open and indeed they have. That’s why today there are 58 genders and we are about a step away from a group of frat boys “marrying” to acquire benefits.
I hear in Rome back when they fancied a lof of themselves, they too had 58 genders and you could pick and choose which one of those as well as your race if you wanted.
Excellent comment, Andrew. PC has taken a terrible toll, both culturally and ideologically. Not so confident normalcy can ever be fully restored.
Ah, the famous “I hear” source. I regret to inform you; Pravda Faux News isn’t considered a source of anything but vapid, counterfactual, propaganda. If you have a reputable source for your historical fiction, by all means feel free to cite to it.
This is to “but Hannity pinky swore it was true” andrew
Can you not read Mark? I was there. I saw people like you desecrating religious buildings (a unique hint at what was to come via Antifa). My knowledge is not hearsay. I was there.
Andrewworkshop, it’s interesting that you’ve studiously overlooked the prospect for polygamous marriage in cases other than fraternities. I wonder what else you may have overlooked.
Child marriage? Cousin marriage? Sibling marriage? Mother/son marriage? Father/daughter marriage? Bestial marriage? Straw-man marriage? Red-herring marriage?
Are we only one step away from any of those marriages, Andrewworkshop?
That is an interesting point. Why isn’t polygamy legal when some religions permit it? More appropriately, if there is separation of church and state why is the latter regulating the institution of marriage as performed by the former?
Because in law, clergymen solemnize marriages. The marriages require permits in accordance with public policy. The clergyman can perform whatever ceremony he cares to (though that’s unlawful in New York, btw). The ceremony is legally null.
Congratulate yourself for making my point for me. Why in the instance of marriage does the so-called separation of church and state all the sudden not exist? How is it that state gets to issue a license for things that – as you stated – are of the church? Can state issue yarmaluke permits, or prescribe standards for appointment of the muzzein? Speaking of the muzzein, theirs is a faith that accepts polygamy. I’m amazed we have yet to breach the topic of that versus allegations of bigotry.
Wait. The “supreme” court will be logically hardpressed to deny marriage to polygamists and all other manner of “marriages” gratuitously condoned by the all-powerful federal government.
I agree. If marriage is no longer defined by gender – and how can it be now that there are 61 genders – then it certainly can’t be denied based on number of participants in the contract now can it?
I haven’t read all of Judge Moore’s comments on the matter, but what Prof Turley quoted had nothing to do with Moore saying they should be impeached because it went his religious beliefs, it was because they were making up a new constitutional right out of whole cloth.
So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Ah, there it is. Homosexuals aren’t as “good” as you, are they? YOU can marry whom you desire, but not the homos. I’m sure there’s a spot for you on the redneck buffoon hayride float right next to “reverend” Moore.
this is to “did I misspell Zaius?” Dr.
They’re not and they cannot be. That’s just reality.
Dr. Zais, The Ninth Amendment states,
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
That directly refutes your assertion respecting ” . . . the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.”
There is no body of 9th Amendment jurisprudence, Diane. There’s a reason for that: no one can figure out what it entails or does not entail.
Oh, please! Both the 9th and 10th Amendments mean what Madison and the other framers said they meant: powers not expressly delegated to the federal gov’t, i.e. Art I Sec 8, Art I Sec 10 & Art VI Para 2, nor specifically prohibited to the States, are reserved to the States respectively or to the People. Those reserved powers, according to Madison’s Federalist #45, “are numerous and indefinite”. Why? Because those powers, which are beyond the powers specifically delegated to the feds, are infinite and impossible to enumerate. One of those reserved powers is defining marriage, as are so many other objects which defy enumeration. SO, in short, examine the specific powers delegated to the federal government, and what powers are not enumerated are reserved to the States and People. Despite the plague of judicial activism and revisionism over the years, the original meaning and intent is crystal-clear. It’s not rocket science. Finally, the remedy to such federal usurpation is State Nullification as carefully explained by both Jefferson and Madison in their Kentucky and Virginia Resolutions of 1798. And if nullification fails, the God-given rights of rebellion and, yes, secession accrue to the States and the People. Yes, I’m saying that the Supreme Court, one step below infallible divinity these days, is only supreme within its Art III limitations. This whole matter is not at all a difficult concept, but many of us have made it so. Such is the nature of self-serving ideology.
You can contrive a reasonable construction of the 10th Amendment. The 9th is more obscure.
The purpose of the 9th was essentially the same as for the 10th, i.e. to allay the anti-Federalist fears assailing ratifying State conventions that all those “individual rights” (vs “powers”) not specifically guaranteed by the Constitution (positive rights) entail ALL natural rights not specifically prohibited by the Constitution. So,the difference is that the 10th was concerned with “governmental powers” and the 9th with the individual rights of the People. There is bountiful authoritative material online which will explain in more detail the framers’ purpose in this regard as well as the actual meaning of the 9th. Again, not rocket science.
Jim Delaney, State powers are not individual rights. Individual rights are not State powers. The meaning of The Ninth Amendment includes, even if it is not limited to, a guarantee of common-law rights–one of which just so happens to be marriage.
Their purpose was the same. The 9th protected natural rights and the 10th protected the powers of the states. I explained that in more detail in another comment.
“Their purpose” in the case of the 9th amendment, cannot be readily operationalized. The text has to give the judge some idea of what to do and what not to do.
Uh-oh! I said the same thing you said before I read it, Jim Delaney. Except that I added the reference to common-law rights. Sorry about that, Jim.
Please allow me further to agree that an established body of jurisprudence and case-law is not strictly necessary for the purpose of securing dormant rights that the law has neglected; because, in the case of what Olly has previously called salutary neglect–meaning government refusing to enforce the law–dormant rights could not ever acquire a body of jurisprudence based on case-law. And that would nullify The Ninth Amendment.
Why? Because those powers, which are beyond the powers specifically delegated to the feds, are infinite and impossible to enumerate.
Great post Jim!
What has been created by the progressive movement is the belief that the infinite and impossible to enumerate problems of civil society are only solvable by the administrative state.
Olly, The Ninth Amendment is an indispensable guarantee of any and all natural rights that you and JR had previously held actually to exist in the state of nature prior to the advent of the civil state and a government formed to secure those rights.
“Tell the Congress: Impeach these justices that put themselves above the Constitution.”
He might personally feel that justices are wrong if they rule in a way contrary to Moore’s religious beliefs. But what Moore said was that the justices put themselves above the Constitution, not above his religion. This particular statement was that the judge’s ruling was unconstitutional. I do not know the requirements of impeachment. Is making unconstitutional rulings grounds for impeachment? It appears that his complaint was in regards to judicial activism.
If Moore feels that his personal religious views supersede the Constitution, then he is wrong in his capacity as a judge. One can certainly engage in civil disobedience based on one’s ethics or religion. But I also believe that one should not accept a job that they do not feel comfortable doing based on personal belief. If he felt that judges are activists from the bench, then he has a point. So it depends on the entirety of his statements. Based on that one quote, it sounds like judicial activism.
If a law is considered unethical in any way, then we have a mechanism to change the law.
https://www.cbsnews.com/news/roy-moore-claims-its-against-the-law-for-players-to-kneel-during-national-anthem/
“Roy Moore, the bombastic Republican nominee for U.S. Senate in Alabama, claims NFL protesters who kneel during the national anthem are violating federal law.
“Moore, in an interview with TIME.com published Wednesday, made the case that NFL players — and conceivably, anyone else — who fails to stand and put their hands over their hearts when the “Star-Spangled Banner” is played is not only unpatriotic, but a law breaker.
“”It’s against the law, you know that?” Moore told the magazine. “It was a act of Congress that every man stand and put their hand over their heart. That’s the law.””
Well, now he’s just being ridiculous. If he’s that weak a candidate then the state needs to put forth a stronger candidate.
I certainly agree with Prof. Turley on this question as, I’m sure, do most educated and sane Americans. However, Moore is merely showing the very ugly face the Republican Party has on such questions and which it has fostered more and more over the past 50 years as a means of gathering votes from ignorant southerners particularly but also ignorant bigots in the Midwest and elsewhere. This is the fruit of the right wing politics the Republican Party has been planting all over America since the passage of the Civil Rights Act of 1964 and the migration of the racist former Dixiecrats to the Republican Party.
I certainly agree with Prof. Turley on this question as, I’m sure, do most educated and sane Americans.
You’ve confused your rancid little subculture with the field of the ‘educated’ and ‘sane’. The rest of your post reveals the ugliness is looking at you in the mirror in the morning.
Wow, do you have a chip on your shoulder. Go obtain some mental health counseling.
You’re unable to digest the import of his remarks because, without a doubt, you’ve spent so much of your life being a condescending jack-wagon that what he said seems perfectly normal to you. It isn’t normal and neither are you. You are not in a position to counsel anyone on any personal matter.
My litmus test for viewing disputed matters involving religion in governmental matters is to insert the Muslim religion and Koran in place of Christian religion and Bible, and then view the dispute in this light. If people would find it offensive when the religious preference or view switches to Muslim, then it has no place. Apply this to any situation: prayers in public schools, prayers before state legislative sessions, religious symbols on public property. In my state, there is a chapel in the State House, with an open Bible on a pedestal. I wonder whose shorts would get in a twist if a copy of the Koran were substituted.
My litmus test for viewing disputed matters involving religion in governmental matters is to insert the Muslim religion and Koran in place of Christian religion and Bible, and then view the dispute in this light.
This would explain why your commentary on this blog routinely has you foaming at the mouth. The litmus test of governmental matters should be based on the limits of the constitution, not some religious test to qualify one for office.
Typical. You reinforce the accurate belief that Pravda Faux News has obliterated the zombie mouth-breathers’ ability to think.
This is to “what’s an analogy?” olly
This is to “what’s an analogy?” olly
Your redundancy is underwhelming.
Yes, Olly, it should be, but in terms of grounding the dispute for those who only see through the lens of their own religious preference, and therefore, by way of example, don’t find offensive when children are required to pray or bow their head while a teacher prays before class in public schools because they are praying to Jesus. Another example: inviting a Christian preacher to lead prayer before the state legislature commences business. If you would find it offensive if such prayers were Muslim prayers instead of Christian prayers, then it’s unconstitutional.
If you would find it offensive if such prayers were Muslim prayers instead of Christian prayers, then it’s unconstitutional.
There is nothing unconstitutional about being offended. There is however something unconstitutional about being forced by law to participate in the exercise of something that violates your conscience.
The problem is, when people equate their religion with government, they lose the ability to appreciate where the boundaries should be, which is a sort-of theme of this piece. Many of these religious radicals wouldn’t be offended if school children are forced to bow their head or fold their hands while a teacher leads them in a Christian prayer, but if the prayers or teacher were Muslim, they’d be very offended and would find this to be unconstitutional, which it is. That’s the point. It’s a means for evaluating the issues when religion and government are intermingled.
No, Natacha, they’d be bothered because Muslim prayers would be an imposition from a collection of cadres which fancies it’s job is to correct the defects of the culture among the people who pay taxes to employ them. Christian prayers flow organically from the society in which the schools are nestled, much to the consternation of asinine federal judges and their straw plaintiff village atheists.
NO, they don’t. Read the First Amendment, reverend. Prayers can flow all they want; but they can’t flow through the efforts of the government; that’s the point. You can’t use the machinery of the government to ram your theory of religion down anyone else’s throat. Natacha was trying to illuminate this principle by using the hypothetical of an Islamic prayer, so you could understand this simple truth. The First Amendment is clear, and Constitutional rights aren’t subject to popular vote. You’re welcome.
this is to “so what’s so wrong about handmaid’s tale”? stinky
The 1st Amendment refers to acts of Congress. The appellate judiciary has since 1925 been insisting that the 14th Amendment makes binding on subsidiary governments obligations which are expressly binding only on the central government. The judges decide per their whims what language grants them a franchise to enforce these obligations, decide which obligations are binding, and define the obligations on a granular level. That’s led to episodes of grotesque silliness, such as federal judges issuing injunctions contra benedictions offered at graduation ceremonies and football games. It’s all a scam.
TSFS said, “The appellate judiciary has since 1925 been insisting that the 14th Amendment makes binding on subsidiary governments obligations which are expressly binding only on the central government.”
If any one of the several States could enact a law establishing a religion, a fair number of citizens from one of the other several States would have their privileges and immunities as citizens of the United States abridged while traveling to, or through, or for a time residing in, or relocating to the State with the established religion; which, in turn, would deny to those and many other persons their equal protection of the law.
One imagines that major corporations might be wary of locating their operations in a State that has an established religion that would infringe upon their employees’ right freely to exercise those employees’ religions.
My short response is that the federal judiciary has nullified original meaning and intent. It has morphed into an unregulated, unaccountable gaggle of black-robed divine-right judicial oligarchs. It has destroyed the founders’ vision of the role of the federal judiciary and, over time, subverted original meaning and intent. I would say that of the three branches, the federal judiciary is the most tyrannical. Who to blame? We the People. Though WE are the ultimate arbiters of what is and what is not constitutional, we have yielded to the odious doctrine of judicial supremacy. No longer do folks look to the Constitution, federalist papers and ratifying documents to understand meaning and intent; we now blindly look to revisionist, activist judicial rulings. Is it any wonder we’re in such a mess. Our constitutional republic is now reduced to a pipe dream. Sad.
The problem is, when people equate their religion with government, they lose the ability to appreciate where the boundaries should be, which is a sort-of theme of this piece.
Natacha,
Think bigger. The problem is people equate everything, not just religion, with government. Not only have they lost the ability to appreciate where the boundaries are, they don’t care that boundaries exist. That is the theme of this piece, and every other piece we debate.
Olly, I’m glad you brought up the religious test issue. I can’t remember the Article and Clause numbers, but I do remember a sentence somewhere in The Constitution that asserts something like . . .
“There shall be no religious test for any office of public trust under this Constitution.”
It appears that Roy Moore’s position on impeaching Supreme Court Justices over the issue of same-sex marriage would constitute just such a constitutionally forbidden religious test for an office of public trust under our Constitution.
Article VI (no clause number available) ” . . . no religious test shall ever be required as a qualification to any office or public trust under the United States.”
L4D,
Moore’s opposition to same-sex marriage is consistent with his faith. His call for impeaching the Supremes that voted to change the law allowing same-sex marriage is his belief that this issue should be up to the individual states; more specifically through an amendment approved by the people of the individual states. This is from his website:
All actions of state and federal officials must conform to the Constitution which should only be changed by amendments of the people, not decisions of activist judges. I support impeachment of judges and justices who knowingly and intentionally violate that principle.
https://www.roymoore.org/Positions/
Thanks Olly. If Moore’s reason for wanting to impeach Supreme Court Justices is not specifically a religious one, then taking action along those lines as a Senator would not constitute a religious test for public office. However, if the reason Moore gave for finding that a SCOTUS decision does not conform to the Constitution were a religious one, then taking action along those lines as a Senator might “indirectly” be a religious test for public office.
In any case, if elected, Moore would be just one of a hundred Senators. And The House of Representatives would still have to bring an article of impeachment against any Supreme Court Justice before any trial could proceed to The Senate. So, the system of checks and balances would remain in place, anyway.
Have you read this story?
All of this comes to mind as the latest controversy about the role of religion in America bubbled to the surface with the line of questioning by Senators Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.) of Federal Appeals Court nominee Amy Coney Barrett. Both raised Barrett’s religious beliefs in a way that set off alarm bells.
http://thehill.com/opinion/civil-rights/350930-feinstein-durbin-dangerously-close-to-pushing-religious-test-on-judge
Olly, thanks for the link. I had not read that story. But I’ve read it now. It is alarming, but the story does not directly quote the questions that Feinstein or Durbin posed to the nominee. So I must reserve judgment pending further inquiry. I will, however, take The Hill’s word for their own sense of alarm; which means that there may very well be something to The Hill’s complaint against Feinstein and Durbin.
I wonder, Olly, how Roy Moore might question a nominee, if he gets a chance to do so. But then that’s just more tit-for-tat; isn’t it?
Natacha – if there was a Koran there, no one would be wearing shorts.
It’s a mistake and an oversimplification to equate Moore’s views as Christian fundamentalism taken to their logical extreme, thus dismissing them as nonsense and the intrusion of religious prohibitions into our legal system. Government sanctioned same sex marriages have never been the norm, any where, in any society, at any time. . .until somewhat recently. . .and there’s a very basic sociological reason for this–same sex unions are antithetical to the foundation of any society, or, should I say, any society which doesn’t want to end up in the trash heap of formerly thriving and flourishing societies, which have been destroyed from within. Long before Christianity ever existed, societies eschewed the mere concept of homosexuality, which does not promote the advancement and continued growth of any community. We have all been forced to gag on this court-imposed perversion of the concept of marriage, where we are told that we must accept government sanctioned marriages between individuals who are the same sex–a union which has always been, and will continue to be, an abomination. Until a few decades ago, homosexuality was considered a mental disease. . .that was, of course, until the gay rights advocates made so much noise that they succeeded in changing that medical diagnosis. It is still a mental disease and should be treated as such. Celebrating and legalizing such unions will not bode well for this society. The beginning of the end.
Nice vomit.
You shouldn’t say that about your poor wife’s cooking. She barfed up the best that she could for you.
I didn’t say that. I said your comment was vomit. Pure vomit, with less integrity.
No excuses. We all know that you referring to your poor wife’s cooking. You must be a joy with which to live.
And your husband lives with a 5-year-old, apparently.
So says the big, mature boy, who likes to say, VOMIT. Do you like to say, POO POO and DOODY, as well? Those words are about your speed.
Good post Bam Bam! You can vomit that stuff up anytime.
Well it clearly attracts flies while repelling the rest of us.
Any citations to authority for your “insight” regarding pre-Christian societal opinions regarding homosexuality? Or maybe you were endowed with this knowledge via a vision, or a burning bush?
This is to “maybe I was there at the time” bammy
Mark M. – neither the Greeks nor Romans approved of either homosexuality or homosexual marriage, except possibly Sparta where the men all slept together and visited their wives just to procreate. That is not to say it did not go on, there seems to have been a mentorship of older men and younger youths which may have included homosexual activities, with both the Greeks and the Romans. And we do know that Alexander the Great killed his male lover and then mourned for several days over him. A Roman emperor had a male lover in the 3rd or 4th century AD and had statues made of him after he died an early death. Some of the statues have been found and he was a beautiful young man. Emperor Tiberius seems to have been bisexual in his older age when he moved to the island of Capri.
Little do you understand Classical Greek culture.
Absent this entire argument is why state is involved in marriage at all. That’s 99.9% of the problem and has done more to destroy the familiy unit than anything else.
Wait for it…..
why state is involved in marriage at all. That’s 99.9% of the problem
Cue Mandy Rice-Davies. Libertarians cannot help themselves.
‘The state’ is ‘involved’ in marriage (i.e. recognizes a social institution in law) because public officials require rules to assign child custody, property, and income. There is no society in which the state is not ‘involved’ in marriage except the dystopian one dreamed up by Aldous Huxley where there is no marriage.
David Benson – then educate me.
Moore is absolutely right! His views are being horribly and intentionally mischaracterized with the writer’s intention to make him come off as a self-consumed loon. He’s NOT putting his faith or personal biases above the Constitution. And that is his strength. I have no idea how much it takes to make people understand that the Supreme Court has absolutely NO BUSINESS WHATSOEVER rendering such a wreckless and unlawful ruling. It’s mind-boggling that folks still believe that the Supreme Court is supreme in all matters. Think about that!!! 9 unelected, black-robed, unaccountable judicial oligarchs ruling the country as they please is a recipe for tyranny. The very notion is sickening and terrifying. The court is extremely limited in its scope of authority. (Read Art III and dust off the relevant Federalist papers to better understand the judiciary’s scope of authority which was clearly defined by the Framers.) Again, deciding that same-sex marriage should be uniformly applied throughout the realm is the very definition of judicial usurpation. See 10th Amendment. Judges must be faithful to the Constitution–not to their political supporters or their personal agendas. Sadly, judicial activism has dominated the modern judiciary. This undermines foundational principles of law and violates the Constitution. In short, defining same-sex marriage falls within the sole purview of the States, not the federal government or any of its branches. That’s not my opinion. That’s the intention of our Founders. If you believe SCOTUS should be granted more authority, then AMEND THE CONSTITUTION–don’t violate it!!!!!!!
The courts aren’t supreme, the Constitution is. Maybe you should read it sometime.
This is to “by gawd, hang the homos” jimmy
Much of the Federal court “issues” would disappear if the judges were Required to Expressly say what part of our constitution they base their opinion on and how it applies to the case before them.
Maybe your “issues” would disappear if you ever had read any court opinion and “expressly” say where the opinion was wrong.
this is to “I don’t need no stinkin’ bar card” solverm
Mark
none of us knows Everything about Anything. With that in mind I challenge you to show me the rule or law that “expressly” requires a federal judge to say what part of our constitution they base their opinion on and how it applies to the case before them.. Without producing such rule or law YOU should be agreeing with me.
In order to understand Roy Moore, it is necessary to understand the theological underpinnings of his beliefs. He is a Christian dominionist, a narrow branch of fundamentalism heavily influenced by the neo-Calvinist writings of Rousas Rushdoony. His views are shared by folks like Vice-President Mike Pence, Sen. Ted Cruz, former Texas governor Rick Perry and former representative Michele Bachmann.
In general terms, dominionism teaches that Christians are biblically commanded to exercise dominion over the earth by taking control of all political, social and cultural institutions and enacting a system of laws based on the Old Testament. Rushdoony himself believed that homosexuality and adultery, for example, should be punishable by death. Therefore, it is hardly surprising that Moore reacted as he did to the Obergefell decision.
It is also important to understand that Moore’s views are incompatible with the Supremacy Clause and the Religion Clauses. First, any judicial decision that conflicts with his theocratic vision of the role of positive law is ipso facto illegitimate. Second, any religious views which conflict with his brand of Christian fundamentalism are not protected under the Constitution. This is why he denies that freedom of religion applies to Islam. That is also why his views are dangerous. Nonetheless, given the fact that almost half of Alabama voters regard themselves as conservative evangelicals, combined with the continuing decline of mainline Protestantism, I will be quite surprised if we don’t shortly have to address the judge as Sen. Moore.
In order to understand Roy Moore, it is necessary to understand the theological underpinnings of his beliefs. He is a Christian dominionist, a narrow branch of fundamentalism heavily influenced by the neo-Calvinist writings of Rousas Rushdoony. His views are shared by folks like Vice-President Mike Pence, Sen. Ted Cruz, former Texas governor Rick Perry and former representative Michele Bachmann.
The number of people accused of being Rushdoony acolytes exceeds the number of people who are Rushdoony acolytes. By about 20-to-1. Your last sentence in this paragraph is a nice warning to the reader that all the other paragraphs are humbug.
Pence and Cruz are generic evangelicals, Perry’s a Methodist, and Bachmann from a rigorist Lutheran sect. The United Methodist Church and the Wisconsin Evangelical Lutheran Synod are not Calvinist bodies. The Southern Baptist Convention is not a Calvinist body either, though Calvinist theology is common therein. Th Evangelical Free Church (Pence’s outfit) makes Calvinist affirmations. Btw, John Anderson belonged to an Evangelical Free Church congregation.
That is also why his views are dangerous.
His views, his constituents views, and others supportive of his religious views are no different than those holding the exact opposite views. They are all views that reflect the culture of this country. We have the honor of living in a country that protects these extremes. Where we have run into trouble is in allowing the extremes to exercise those views under the color of law. The danger is not in the view, the danger is in the ignorant willingness to empower that view to make unjust law.
It’s pretty amusing when a claque of people among whom it is common to argue that appellate judges can annul any piece of legislation when it violates their preferences, among whom it is common to argue as if that state higher education officialdom can properly defy both statutory law and law enacted via referendum, among whom it is common to admire creatures like Bradley Manning, among whom it is common to admire foreign reds like Fidel Castro, among whom it is common to take the side of criminals contra law enforcement or Joe Average, among whom its bog standard to be blase in the face of the most odious pair of grifters the Republic has seen in the postwar period, among whom it is common to think perverted physicians should be permitted and even subsidized to shoot people full of hormones and amputate their genitals, among whom it is common to fancy that another set of perverted physicians should be permitted to kill children in vitro by sticking sharp implements in their cranium or soaking them in caustic brine are all in a lather about ‘dangers’.
We have a developed a body politic that ignorantly and passionately wants to jump right to the last part of the 4th self-evident truth in the Declaration of Independence without any consideration of the first three.
it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The true purpose for government is lost on these folks:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
With all that blather–signifying nothing; you’re still nothing more than a keyboard warrior. You don’t say a word to anybody in real life, because you know where you stand on the loony continuum with all that nothingness.
This is to “but I have a Hillary voodoo doll” spammer
Georgie could be another one from da Kremlin troll farm.
The truth is that Moore’s views vary very little from the views of most Americans in the 60s and 70s when I grew up. Oh, they were the bad old days of full employment, stable families, minimal immigration and patriotism tempered by a dose of Vietnam and some nasty drug turf wars. All in all, I’d give that time the nod over today’s virulent anti-Americanism and societal divisions on everything. Plus, the music was light years ahead of today’s barbarian screams.
But, but we are progressing don’t you know. Just like all the more advanced countries that issac keeps blathering on about.
Oh we’re moving alright, Olly. I’m just not sure if it’s up or down. If you believe Gibbon, I’d say we’re not long for the bottom.
“Rushdoony himself believed that homosexuality and adultery, for example, should be punishable by death.”
Considering the fact that homosexuality does not result in reproduction, it appears that nature itself imposed a conclusive sentence.
The contradiction in terms, “homosexual marriage,” is nonsense.
Why are liberals promoting the tyranny of nonsense?
It strikes me that Americans may enjoy the freedom of religion and speech and that Roy Moore is well within his rights, as others, apparently, endeavor to deny them.
1st Amendment –
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
George, there’s no natural reason that a Gay man couldn’t have sex with a woman for the purpose of procreation. Such probably occurred when Gays were in the closet and would likely occur again if they were forced back into the closet.
Roy’s a kook to be sure. But compared to the opportunists, sultans of senility and outright fifth columnists who occupy the halls of Congress, he looks more like Pericles than Pat Paulsen.
Rather it is the rapturous applause from the crowd as he called for the evisceration of judicial independence in the United States.
The horror of the private sector applauding a statement from a candidate that supports their views is minuscule compared to the utter shock at watching an entire oath-taking body of politicians give a rapturous standing ovation to a President that just told two branches of our government he would rule by a pen and a phone.
surly you are talking about Obama
I am.