What happened in the SC yesterday is an indication of the failure of not only our legal system but our political one as well. The fact is that lawyers and the Judges they sometimes grow up to be do not understand what true law is as practiced by those of their profession that came before them.
In Thomas Jefferson’s list of books that every gentleman should have in their library was Blackstone’s Commentaries on the laws of England. The same books that Madison declared was in every man’s library present during the Virginia State ratification debate. Blackstone’s Commentaries were the books Abraham Lincoln learned the law from and repeatedly recommended to those wishing to study the law. My point being that this was the way law was taught and the way the law was understood by the founders and generations after them. The common law was adopted by every State after the Revolution minus the parts that delay with the Monarchy.
So what would a lawyer be taught and every Judge knew before the ‘case law” method was invented in the 1870’s? Without even getting through the second chapel of the first book they would know.
“…the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”
The SC use of the 14th Amendment to come to their unconstitutional decision not only yesterday but in many cases, the other most notable one being Roe v. Wade violates the prime principle of deciding what a law means. It is the intent of the body that enacted it. It is not what the judges thought it meant and certainly not what the judges think it should mean.
What the court does today and has done for sometime is use what is called the Incorporation Doctrine. This doctrine uses the 14th Amendment by ignoring the intent and applying their own activism to apply the Bill of Rights to the States, something that was never intended. After the 14th was ratified this scheme was tried for years but was always rejected by the courts. In the early 20th century, it then started to creep into decided cases. This doctrine has produced the disaster we have today, meaning Federal encroachment on States rights.
“But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.” - Blackstone
Of course there is nothing dubious about the wording of the 14th Amendment. It is straight forward and had a specific purpose which was to put into the Constitution the Civil Rights Act of 1866 giving citizenship to the newly freed slaves.
The fact is the Justices on the SC routinely violate their oaths of office when they incorporate their own will into a decision.
“It can be of no weight to say, that the courts on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” - Hamilton Federalist 78
What the SC has become and acts like super legislature. Many people today including presidential contenders that believe courts make law and that is complete nonsense. The SC needs to be brought under control. We will see if The House of Representatives has the will or the nerve.
“And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.” - Blackstone.
The problem with the Founders is that they were naive to believe that Judges would always judge the law the way it is intended to be judged. Now the law is subject to the whim of any judge, to mean what they think it means or what they want it to mean. The law is nothing more than a suggestion, to be followed or not depending on the political leaning of the judge. They don’t even care about their own precedents. There is a service for lawyers that tells them what rulings are still valid and those that have been tossed aside from judicial whim. Instead of being fixed and absolute unless changed by the legislative body, the law ebbs and flows according to time and how many appointments a certain President can make.
“For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law.”
The ruling by the SC is unconstitutional and like every branch of government they are governed by that document. Any ruling contrary to the Constitution is null and void, just as any law by Congress is, and the same applies to any Order by the Executive.
