Sunday, June 15, 2008

CA Marriage case: a documented study in juridical tyranny!

If there was ever a court ruling confirming the contention that our judicial branch of government is violating the very core of our constitutional system’s separation of powers doctrine and “legislating from the bench” and using its office of public trust to impose its whims and fancies as public policy upon the people, that court ruling is without question California’s recent case in which four arrogant justices on California’s high court struck down America’s traditional definition of marriage ___ a definition legally understood in America for countless generations as being a union between one male and one female.

The opinion of the court in this case, In re MARRIAGE CASES, decided May 15th, 2008, authored by Chief Justice C.J. George declares that:

“…retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples.” [page 118]

But the “strict scrutiny” standard relied upon by Justice George happens to be a modern day test invented and nurtured by the Supreme Court of the United States and lower state courts to create a vehicle for justices and judges throughout the united States to semantically subjugate the very intentions and beliefs under which our constitutions, state and federal, were adopted, and to allow the court to impose its own whims and fancies and sense of social justice upon the people ___ in effect recreating a system which mimics the English House of Lords which was unrestrained by a written constitution, and which our constitutional system was intentionally designed to forbid!

Keep in mind a “strict scrutiny standard” is not found in the text of the United States Constitution, nor was such a test ever contemplated by our founding fathers to be used by our courts in deciding the constitutionality of a law based upon the court’s opinion as to whether or not the law in question furthered a “state interest sufficiently compelling” to be upheld or struck down on such grounds.

Indeed, under our constitutional system our legislative branch of government ___ the people’s elected legislature ___ is vested with the power to enact law which it, and only it, have determined will promote the general welfare and best interests of the people and the State. Second guessing the wisdom of laws passed by the Legislative branch of government by our courts, which Justice George is quite comfortable in doing, is not the Court’s job under our system and violates the fundamental separation of powers in our constitutionally limited “Republican Form of Government“, a system of government which is guaranteed to every State in our union by Article 4, Section 4, of our federal Constitution.

The irrefutable fact is our constitutions, state and federal, are the supreme law of the land and there is no provision or legislative intent within the four corners of our constitutional system suggesting the Court may declare a law unconstitutional or constitutional based upon a test which no longer determines the constitutionality of a law, but rather, allows the Court to arbitrarily determine whether a law is, e.g., “reasonable“, or arbitrarily decide that the law in question “does not constitute a state interest sufficiently compelling,“ or, that a law bears a “rational” relationship to the state's best interests ___ all of which is designed to allow the Court to declare laws which do not fit the Court’s own idea of social justice as being unconstitutional, while laws which may advance the Court’s idea of social justice or advance the personal predilections of members of the court are amazingly found constitutional under these semantic “tests“ invented by the Court to assume a public policy making authority.

The distinction between our constitutional system and its most fundamental rule, which is to enforce the intentions and beliefs under which our constitutions, state and federal, were adopted, as contrasted by a system in which a Court may overturn laws by arbitrarily declaring they do not promote a compelling state interest, is exhibited under Israel’s system of government and a set of laws called the “BASIC LAW” of Israel.

After listing a number of rights which the people of Israel are supposedly entitled to, which are somewhat similar to our federal Bill of Rights, No.8 of the BASIC LAW OF ISRAELdeclares:

“There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required”

And so, those in political power, acting through Israel’s judicial system, may scrutinize a law and uphold it or strike it down by alleging the law “does not constitute a state interest sufficiently compelling“ to be upheld, which in turn allows a handful of citizens to “interpret” laws to meet their own purposes under the guise of promoting the best interests of the State of Israel.

But in our system, if there is any legitimate scrutinizing to be applied when determining if a law is or is not constitutional, that scrutinizing is to be applied in determining the intentions and beliefs under which a constitution, [each article, section, clause, and amendment] was adopted, as they may be documented from historical records. and then enforcing those intentions and beliefs. To state this rule a different way, let us recall the words of one of our nation’s leading founding fathers:

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

The fact is, members on the SCOTUS in the 1960’s - 70’s, started to blatantly ignore the narrow and limited intentions for which the 14th Amendment was adopted and took it upon themselves to use their office of public trust to impose their personal predilections and social reforms upon the entire population of America, and did so by creating the very kinds of test which Justice George used to impose his personal feelings upon the entire population of the State of California

Some of the important cases which document the U.S. Supreme Court’s use of its power to impose its own standards of social justice are:

Reed vs. Reed 404 U.S. 71 (1971)

Frontiero vs Richardson Secretary of Defense 411 U.S. 677 (1973)

Craig v. Boren 429 U.S. 190 (1976)

Also see, United States vs. Virginia 518 U.S. 515 (1996)

It is interesting to note that the ACLU and Ruth Bader Ginsburg, who now sits on the U. S. Supreme Court and was a volunteer for the American Civil Liberties Union in the 1970’s, was very active in these cases and assisted the Supreme Court in the formulation of the creative test which Justice George used to parse words and semantically subjugate the very intentions and beliefs under which California’s Constitution was adopted as he went on to legislate from the bench and impose his personal view of social justice upon the people by tyrannically assuming the legislative powers of government.

Heck, Justice George even recognized he was violating the separation of powers doctrine when he quoted in his opinion “(I)t is the legitimate business of the Legislature to attempt to close the distance between the parallel institutions (marriage and same-sex committed domestic partnerships) as they develop, and to address such concerns.” This very rule, the separation of powers doctrine, was also recently stated by the SCOTUS in ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003)

“…..we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be…The wisdom of Congress' action, however, is not within our province to second guess.”

Bottom line. The strict scrutiny relied upon by Justice George is an invention of the Court used to impose the Court’s own concept of social justice and semantically subjugate the very intentions and beliefs under which our constitutions, state and federal, were adopted.


Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, [u]as those intentions and beliefs may be documented from historical records,[/u] wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.