Category Archives: Constitution

UPDATE II: Conned About Marriage, Constitution And ‘States’ Rights’ (Constitution’s About Process)

Conservatism, Constitution, Federalism, Founding Fathers, Gender, Homosexuality, Law, The Courts

“Conned About Marriage, Constitution And ‘States’ Rights'” is the current column, now on WND. An excerpt:

The ban on the ban is unconstitutional.

This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.

At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause. It stipulates that “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.”

Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”

Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”

But that was then.

In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “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.”

As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.

What does this mean?

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be. …

… Either way, the freedoms afforded by federalism are no longer because American federalism is no longer. …

… Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene. …

Read the complete column. “Conned About Marriage, Constitution And ‘States’ Rights'” is now on WND.

JOIN THE CONVERSATION:

• At the WND Comments Section. Scroll down and “Say it.”

• On my Facebook page.

• By clicking to “Like,” “Tweet” and “Share” this week’s “Return To Reason” column.

If you’d like to feature this column, WND’s longest-standing, exclusive paleolibertarian column, in or on your publication (paper or pixels), contact ilana@ilanamercer.com.

UPDATED I (1/24): American constitutional federalism is about process, rather than what law you like or don’t. The process is clear. The Courts were never meant to tell people how to run their homes and communities. It’s a column I’ve been wanting to write for a while. It’s quite disturbing how little people understand about a structure/scheme that is no longer and that was intended to protect liberty. The 14th is a real problem, as it killed the 10th.

UPDATE II: Facebook thread:

Todd Frank: The post-civil war Republicans did not think several things through when they drafted the 14th amendment. That said, there still has to be some sort of remedy when states themselves trample on the rights of the individual short of giving the US government carte-blanche to do whatever they want to us.

Ilana Mercer : Todd Frank, you make a good point. But just about every state had itself a constitution with a bill of rights.

The Sweet Sounds of Secession

Constitution, Homosexuality, Law, States' Rights, The State

Contra broadcaster Mark Levin, the healthiest and most intuitive response to deep-seated unhappiness—political or personal—is not to hold a constitutional convention, but to leave; to exit the abusive relationship.

In Utah, it was U.S. District Judge Robert Shelby who did the honors of striking down “Utah’s voter-approved law defining marriage as between a man and a woman.”

In response, a “constitutional attorney” named Joe Wolverton spoke stirringly about secession:

The federal government does hundreds of things every day that are not in the “contract,” so states have the right to rescind it, he said.

“We are absolutely within our right to secede from a political union that no longer answers to the demands of liberty and justice,” he said.

Wolverton also went after elected officials who he says have betrayed the country.

“Have we elected traitors? Yes we have, absolutely. Both parties continue to grow the federal government and burden the states and the people.”

Mark Levin has trashed secession but looks to the states for salvation:

To reclaim the republic, Levin and his listeners look to the states and their role in the amendment process, as stipulated in Article V of the Constitution. Never mind that the states, contrary to the mistaken predictions and hopes of the Constitution makers, have never initiated a constitutional amendment; and never mind that even in the event that the states demand a constitutional convention, there is no mechanism to compel Congress to act.

The great constitutional scholar James McClellan was no “neo-confederate.” Yet even an ardent defender of the Constitution as McClellan conceded that, sadly, “the Framers relied on the good faith of Congress for the observance of the requirement” and that “there was no way to force Congress to act.” (“Liberty, Order, And Justice: An Introduction to the Constitutional Principles of American Government,” p. 310.)

Levin and his listeners are deluded if they think that from the “free” states—all four of them (New Hampshire, Colorado, South Dakota and Alaska)—will come our salvation. The legislatures of two-thirds of the states have to unite to call on Congress to hold a national Constitutional convention for the purpose of amending the dead-letter Constitution.

Incidentally, as a libertarian, I want to keep the state out of marriage altogether. “In furtherance of liberty, Uncle Sam’s purview must be curtailed, not expanded. On this score, let our gay friends and family members lead the way. Let them solemnize their commitment in contract and through church, synagogue and mosque (that will be the day!).”

Rand Paul: ‘If You Like Your Privacy You Can Keep It’ (NHAHAHAHAHAHA!)

Barack Obama, Constitution, Homeland Security, Regulation, Terrorism, The State

It is not about calibrating the NSA’s infractions on the right to privacy, it’s about keeping that right.

Sen. Rand Paul’s description (the line above is my own) of the gist of Obama’s tweaks to the National Security Agency’s surveillance program should be punctured by maniacal, loud laughter, the kind used by your vintage movie villain: “NHAHAHAHAHAHA!” In essence, intimated Sen. Paul, Obama is promising that, “If you like your privacy you can keep it.”

On the odd occasion that he’s good, Rand is very good. “It’s not about who holds it,” he continued, “I don’t want them collecting the information.”

That’s all there is to it.

Then Paul went and spoiled it all by saying something stupid like, “Obama’s heart really is in the right place,” and that his “motives are not bad.”

Full Text of Obama’s Speech on his plans for “Surveillance With A Smile.”

POTUS Quits Pretending US Has A Constitution

Barack Obama, Constitution, Fascism, Federalism, Welfare

With my pen and phone I will free thee from want, promised the president. While I prefer not to pretend, as conservatives do, that the U.S. is still a constitutional republic; Obama could at least be polite about the poor thing, the Constitution, that is.

“We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need,” President Obama told reporters before a meeting with his Cabinet Tuesday. “I’ve got a pen and I’ve got a phone.”

Don’t the rules specify that you are supposed to wait on legislation?