DESTROYING
THE REPUBLIC
In
the past several weeks the various branches of the Federal government have
virtually destroyed the very fabric of our Constitutional Republic. Obama has
continued with his efforts to dismantle our economy and the Constitution with
more illegal and unconstitutional Federal agency regulations and with the
promise of more Executive orders aimed at gutting the Bill of Rights.
The Republican controlled Congress did
its part by passing mostly secret legislation that apparently gives Obama the
right to enter into International treaties and send them to Congress for a
straight up or down majority vote, with no amendments allowed. This action
totally ignores the provisions of Article II, Section 2 of the Constitution
that requires that all treaties entered into by the President be ratified by a
two thirds majority of the United States Senate.
Now we have two decisions by the
Supreme Court that have trashed the Constitution by once again giving rubber
stamp approval to the entirely unconstitutional Obamacare legislation by
essentially rewriting the law. Then it ignores the Tenth Amendment to the
Constitution that states: “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.”
The fact is that the word marriage
does not appear anywhere in the Constitution and certainly not in the
Fourteenth Amendment. The laws concerning marriage are therefore entirely in
the hands of the states. Yet, five unelected SCOTUS justices have placed their
own political agenda above the Constitution and created a new Federal law
mandating the acceptance of gay marriage by all 50 states.
The effect is expertly summed up by
two of the country’s outstanding Constitutional attorneys: William Olson and
Herb Titus. Both have been working with the United States Justice Foundation on
various projects for years and the article printed below is the last of 14
articles prepared for the USJF by some of the finest legal minds in the
country. All can be viewed on our website at www.usjf.net.
We intend to be in the forefront of
resistance to this declaration of a dictatorship in our country.
Building
the Resistance to Same-Sex Marriage
(fourteenth in
a series of articles)
Obergefell
v. Hodges: Illegitimate,
Unlawful, and a Fraud on the American People
by
Herbert W. Titus and William J. Olson;
June 26, 2015
There
is simply no other way to say it.
The Supreme Court’s decision today redefining marriage
to include couples of the same sex is wholly illegitimate and unlawful. A nullity.
Worthy only to be disobeyed.
Anyone who says otherwise -- that the rule of law
requires recognition of same-sex marriage -- is committing a fraud. And any State official -- like Governor
Robert Bentley of Alabama -- who says that his oath of office requires
unconditional obedience to the Supreme Court’s mandate to issue same-sex
couples licenses to marry is mistaking his oath to the Constitution as if it
were an oath of absolute obedience to five justices who happen to be sitting on
the nation’s highest court.
As Chief Justice Roberts in dissent has described the
action taken today:
“Five lawyers have closed debate and enacted their own
vision of marriage as a matter of constitutional law. Stealing this issue from the people ....”
And just who are these lawyers? Justice Scalia reminds us that they are all
educated at either Harvard or Yale, from the east- and west- coasts, not from
the vast middle of the country, and not a single one an evangelical Christian
or a Protestant, and then observes:
“The strikingly unrepresentative character of the body
voting on today’s upheaval would be irrelevant if they were functioning as judges,
answering the legal question whether the American people had ever ratified a
constitutional provision that was understood to proscribe the traditional
definition of marriage.”
Indeed, from the outset of his bare majority decision,
Justice Kennedy did not even act like a judge.
Rather, he wrote as if he were an existentialist philosopher seeking the
meaning of life, as if the “liberty” protected in the Constitution was a
personal quest “to define and express [one’s personal] identity.”
But the Constitution is not some philosophical work
written by Jean Paul Sartre. Rather, it
is a political and legal document designed by America’s founders to secure the
unchanging God-given rights to life, liberty, and property which are deeply
rooted in the 18th century soil of the nation. Justice Kennedy showed no regard for these
fixed principles, opting for an evolutionary approach to law -- asserting that
the existential definition of marriage changes with changing times.
However, the very purpose of our Constitution is, as
Chief Justice John Marshall wrote in Marbury v. Madison, to make
“permanent” those principles that the people desired. And, so that those principles would not be
“mistaken or forgotten,” the people committed them to writing. Thus, Marshall wrote “it is the province and
duty for the courts to say what the law is,” not to make it up as we go along.
As today’s dissenting Chief Justice observed, “[t]hose
who founded our country would not recognize the majority’s conception of the
judicial role”:
“They after all risked
their lives and fortunes for the precious right to govern themselves. They would have never imagined yielding that
right on a social policy to unaccountable and unelected judges. And they certainly would not have been
satisfied by a system of empowering judges to override policy judgments so long
as they do so after ‘a quite extensive discussion.’”
And, as the capstone of his dissent, the Chief Justice
concluded: “the Constitution. It had nothing to do with it.” In those nine simple words, Chief Justice
Roberts explained why this decision of the Court is not law. If the Constitution had nothing to do with
it, the Court had no jurisdiction to issue it.
It is, therefore, a nullity.
In the words of Justice Felix Frankfurter, a brilliant
jurist who understood the dangers of hubris on the highest court in the land --
may Obergefell v. Hodges prove to be a “derelict on the waters of
the law.” And it will be -- but only if
the American people rise up and resist this gross perversion of the rule of
law.
Approximately one month ago, the U.S. Justice
Foundation began to organize the writing and publication of a series of
articles in a series entitled “Building the Resistance to Same-Sex
Marriage.” This project was undertaken
in the hope that the Supreme Court would not recklessly decide the same-sex
marriage case, but nonetheless, we prepared for the worst, and sadly, the
Supreme Court has disappointed us again.
Hopefully over the coming weeks and months, state and local government
officials and the people at large will be able to draw from these articles
justification and techniques to resist the Supreme Court’s lawless
decision.
In Article
II, we established that the Fourteenth Amendment in no way addressed the
issue of same-sex marriage. In Article
III, Robert Reilly explained how poorly these cases have been litigated by
government lawyers supposedly defending same-sex marriage. In Article
IV, Pastor James Taylor explained the biblical and moral basis for
traditional marriage. In Article
V, Houston attorney J. Mark Brewer anticipated how courts will manipulate
today’s rulings to penalize those in business and the professions who embrace
biblical marriage. In Article
VI, former Congressman John Hostettler explained that if a soldier has the
duty to disobey an unlawful order, how could a state official not have that
same duty? In Article
VII, former federal magistrate Joe Miller discussed why it would be a
violation of federal law and judicial ethics for Justices Ginsburg and Kagan to
participate in the decision, yet both did so today.
In Article
VIII, Pastor Matthew Trewhella provided a historical context for Christian
resistance by lower government officials to illegal actions by higher
government officials, known as “The Doctrine of the Lesser Magistrate.” In Article
IX, we discussed the apparent efforts of the Supreme Court to bury the
motion for recusal filed by the Foundation for Moral Law so that Justices
Ginsburg and Kagan could more easily disregard their duty. In Article
X, constitutional attorney Edwin Vieira explained how decisions like
today’s decision violate the Constitution’s “good behavior” standard, leaving
them susceptible to removal. In Article
XI, former U.S. attorney Tom Ashcraft laid out the process by which
Congress can limit the jurisdiction of federal courts, using the power Congress
was expressly given in the U.S. Constitution.
In Article
XII, Senior Virginia Delegate Robert G. Marshall discussed how Congress
could immediately use the Appropriations Power to prevent implementation of an
unlawful decision such as that issued today.
And lastly, in Article
XIII, former Oklahoma Representative Charles Key described the
responsibility and duty of every citizen, when serving on a jury, to decide
both the facts and the law in every case, known as jury nullification.
This series of articles has demonstrated that a
Supreme Court decision mandating same-sex marriage would be illegitimate. As Blackstone said, it would not just be bad
law; it would be no law at all. That
decision has now transpired. These
articles also demonstrate that the American people and our elected officials
have many ways to resist the unconstitutional decision of the Court. The question now is, will our political
leaders abandon the true Constitution to embrace the decision of the Court?
In the coming days we will continue to be releasing
articles further discussing the justification for and techniques that can be
used by Congress, state officials, and the American people to resist today’s
unlawful decision. We urge supporters of
traditional marriage to view today’s loss as a setback, but by no means a final
decision of anything. The battle
continues.
Herbert W. Titus taught Constitutional Law for 26
years, and concluded his academic career as the Founding Dean of Regent Law
School. William J. Olson served in three
positions in the Reagan Administration.
Together they have filed over 80 briefs in the U.S. Supreme Court, and
dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at traditionalmarriage@lawandfreedom.com
or twitter.com/Olsonlaw.
This article is part of a series on
“Building Resistance to Same-Sex Marriage.”
Please support this important work with a contribution to the U.S.
Justice Foundation. Permission is
freely granted to publish, copy, reproduce, distribute, or excerpt from this
article for any purpose.
Michael Connelly
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