We the People Act(HR 3893 IH)March 4, 2004 To limit the jurisdiction of the Federal courts, and for other purposes. Mr. PAUL (for himself and Mr. BARTLETT of Maryland) introduced the bill in the 108th Congress and needs to be introduced in the 109th Congress.

Saturday, December 4

Black's Law Dictionary: Interposition

“The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government.

The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. Historically, the doctrine emanated from Chisholm v. Georgia, 2 Dallas 419, wherein the state of Georgia, when sued in the Supreme Court by a private citizen of another state, entered a remonstrance and declined to recognize the court's jurisdiction. Amendment 11 validated Georgia's position.

Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance.” Vision Forum Ministries

University of South Carolina Law Professors William J. Quirk and R. Randall Birdwell, in their book Judicial Dictatorship (New Brunswick: Transaction Publishers, 1997), note that

“The philosophical assumptions of judicial review are so inconsistent with democratic theory that there is along tradition of resistance to it. The resistance, today, is a largely underground movement that exists outside the normal academic and law school curriculum. Historically, the members of the resistance are an impressive group. The include the great democratic presidents: Thomas Jefferson, James Madison, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin D. Roosevelt. They include the great constitutional scholars: James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (1893) and John Marshall [a 1920 book by Thayer]; Louis Boudin, Government by Judiciary (1932); Edward S. Corwin, Court over Constitution (1938); Henry Steele Commager, Majority Rule and Minority Rights (1943); and Learned Hand, The Bill of Rights (1958). Who made the Court, as Learned Hand asks: 'the arbiters of all political authority in the nation with a discretion to act or not, as they please?'”

Chief Justice John Marshall firmly entrenched the principle of judicial review in Marbury v. Madison, 5 U.S. 137 (1803). In that opinion he declared that a law repugnant to the Constitution is null and void. But if an Act of Congress is null and void if inconsistent with the Constitution, does not follow that the order of an unelected federal judge is also null and void if inconsistent with the Constitution?

At some point we must stand up and say to the federal judiciary, “Enough is enough! You have usurped powers that the Constitution has not delegated to you. You have imposed upon the rightful authority of the states.” But when do we reach that point?

The Doctrine of Interposition, Dr. John Eidsmoe, Esq.

Abortion survivor, Gianna Jessen confronts the Congress that REFUSES TO impeach &/or remove jurisdiction

"My name is Gianna Jessen. I would like to say thank you for the opportunity to speak today. I count it no small thing to speak the truth. I depend solely on the grace of God to do this. I am 23 years old. I was aborted and I did not die. My biological mother was 7 months pregnant when she went to Planned Parenthood in southern California and they advised her to have a late-term saline abortion.

A saline abortion is a solution of salt saline that is injected into the mothers womb. The baby then gulps the solution, it burns the baby inside and out and then the mother is to deliver a dead baby within 24 hours.

This happened to me! I remained in the solution for approximately 18 hours and was delivered ALIVE on April 6, 1977 at 6:00 am in a California abortion clinic. There were young women in the room who had already been given their injections and were waiting to deliver dead babies. When they saw me they experienced the horror of murder. A nurse called an ambulance, while the abortionist was not yet on duty, and had me transferred to the hospital. I weighed a mere two pounds. I was saved by the sheer power of Jesus Christ.

Ladies and gentleman I should be blind, burned.....I should be dead! And yet, I live! Due to a lack of oxygen supply during the abortion I live with cerebral palsy. [...] Adolph Hitler once said: '"The receptive ability of the great masses is only very limited, their understanding is small; on the other hand their forgetfulness is great. This being so, all effective propaganda should be limited to a very few points which in turn, should be used as slogans until the very last man is able to imagine what is meant by such words.'" Today's slogans are: "'a woman's right to choose"' and "freedom of choice," etcetera.

House Judiciary Subcommittee on the Constitution, July 20, 2000

How Not To Overturn Roe v. Wade

Justice Scalia writes: "My difference with Roe v. Wade is a legal rather than a moral one: I do not believe . . . that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."

….the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will.
That premise is mistaken. Every member of the Court understands what an abortion is.

The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child.

….women need abortion to be legal in order for them to be full and equal members of American society. It is that judgment, and not any misunderstanding of what happens in an abortion, that is the source of our present predicament, as even a casual perusal of the Court’s opinion in Casey reaffirming Roe v. Wade would disclose.

….it should be clear that no member of the Court—past or present—believes that the unborn child is a "person," as that term is used in
Section 1 of the Fourteenth Amendment.

Seventeen justices have sat on abortion cases since and including Roe, and not one has ever stated that the unborn child is a constitutional person….Dissenting in Roe, Justice Rehnquist stated that "the drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter [i.e., abortion]." Dissenting in both Roe and Doe v. Bolton, the companion case to Roe, Justice White stated that "this issue [i.e., abortion], for the most part, should be left with the people and the political processes the people have devised to govern their affairs."

But there is more than silence to indicate the Justices’ views. Dissenting in Casey, Justice Antonin Scalia stated, "The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." This statement, in an opinion that Chief Justice Rehnquist, Justice White, and Justice Clarence Thomas joined, quite obviously is not compatible with a recognition of personhood. And in dissenting from the Court’s decision to strike down the Nebraska partial-birth abortion ban, Chief Justice Rehnquist and Justices Scalia and Thomas
once more urged that the issue of abortion be returned to the states.

In his brief dissent in Carhart, Justice Scalia stated that "the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, state by state, whether this practice should be allowed." Justice Thomas, writing for himself, Chief Justice Rehnquist, and Justice Scalia, began his lengthy dissent by stating: "Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother."

Entirely apart from the issue of personhood, there is little basis for believing that any of the Justices would accept the argument that the Supreme Court (or any court) is qualified to state when human life begins. Dissenting in Casey, Justice Scalia, joined by the Chief Justice and Justices White and Thomas, wrote that the question of when human life begins is not "a legal matter" capable of resolution by a court, but, instead, is "a value judgment" that may be made only by the political branches of government. In his concurring opinion in Ohio v. Akron Center for Reproductive Health (1990), Justice Scalia said that the determination of when human life begins is a question not capable of judicial resolution and instead must be left to the political process where compromise and accommodation of divergent views is possible. This theme—that the resolution of the abortion question should be left to the political branches of government—has been a leitmotif of Justice Scalia’s abortion opinions.

Nothing in Roe, properly understood, forbids New Jersey or any other state from imposing civil liability and/or criminal sanctions on anyone who causes injury to or the death of an unborn child (outside the context of abortion).

Paul Benjamin Linton is an attorney who specializes in pro-life litigation and legislative consulting, and has served as General Counsel of Americans United for Life. -How Not To Overturn Roe v. Wade - 2002 First Things 127 (November 2002): 15-16.

Life-Protecting Judicial Limitation Act of 2003 (Introduced in House)

To provide that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases.

Scalia on the static Constitution v. evolving darwinian opinion

"In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges."

"Other than offering the anecdote of the fundraising letter, Scalia did not mention the chief-justice issue during his lecture. Instead, he focused on what he sees as the problem of judges becoming involved in issues that he believes have no place in a court of law."

"He offered examples from the US Supreme Court - abortion, gay rights, the death penalty, gender equality at military schools, and assisted suicide."

"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."

"Of course, society remained free to decriminalize those acts [through legislation], as many states have," he added. "But under a static Constitution, judges could not do so."

One justice's vision of role of the courts, November 16, 2004 edition Warren Richey Staff writer of The Christian Science Monitor

Laws and Standards - Do They Evolve?

The single most influential jurist of the Twentieth Century was United States Supreme Court Justice Oliver Wendell Holmes, Jr. His massive treatise, The Common Law, supplanted Blackstone's Commentaries as the premier text for law students. Holmes taught "the life of the law has not been logic, but experience," and argued that it was the responsibility of courts to direct the evolution of law. Because right and wrong do not exist in any absolute sense, judges must determine which standards are most appropriate at a given point in the evolution of a society.

For three decades, Holmes brought his distinctively Darwinian bias to the Court. He spoke candidly:
"I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand."

A consistent evolutionist, Holmes declared that "the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction." He authored the landmark decision in Buck v. Bell upholding a Virginia eugenics law mandating the involuntary sterilization of people the State deemed undesirable.

It is better for all the world if, instead of waiting to execute degenerate offspring for crime, or to let them starve for imbecility, society can prevent those who are manifestly unfit from continuing their kind.

Holmes and his contemporaries laid the foundation for legalized abortion, no-fault divorce, the legalization of homosexuality, and the rejection of the Framers' vision for Constitutional interpretation. Today, most courts have embraced an evolving standard for Constitutional interpretation, rejecting the notion that the Constitution must be interpreted in light of the meanings intended by the Framers.

Darwinian Roots of Judicial Activism

Pearcey analyzes "the crucial role played by the Darwinian view of origins" in the development of American legal philosophy. "Darwinism is not only a biological theory," she emphasizes; "it is also the basis for a comprehensive world view -- implying a new philosophy of mind, knowledge, morality, and law." Pearcey sees a direct connection between Darwinism and the postmodern view that "the only objective and absolute truth is that there are no objective and absolute truths." She argues that a "thorough-going critique" of judicial activism "must begin with Darwinism as a scientific theory." Pearcey advocates taking "the intellectual battle into science itself. The controversy over Darwin versus design is not a peripheral issue," she insists, "but lies at the heart of the cultural crisis of our day."

Evolution and the Law:"A Death Struggle Between Two Civilizations" by David Barton

The fact that governments do need to change ("evolve") and to incorporate social adjustments (i.e., the ending of slavery, the granting of suffrage to women, etc.) makes the argument to "modernize" the governing documents appealing to many. And thus many followers of Darwin urge the need for the Constitution and other governing documents to be flexible, living, and organic-to evolve.

Perhaps the first individual successfully to champion this belief was Christopher Columbus Langdell (1826-1906), dean of the Harvard Law School. Langdell reasoned that since man evolved, then his laws must also evolve; and deciding that judges should guide the evolution of the Constitution, Langdell introduced the case law study method under which students would study the wording of judges' decisions rather than the wording of the Constitution.

Under his case-law approach, history, precedent, and even many of the principles specifically enshrined in the governing documents, were deemed hindrances to the successful evolution of society. As John Dewey summarized:

The belief in political fixity, of the sanctity of some form of state consecrated by the efforts of our fathers and hallowed by radition, is one of the stumbling blocks in the way of orderly and directed change. [216]

Justice Holmes agreed, urging that "the lawyer's task . . . was to participate actively in freeing the law from those archaic doctrines that prevented the law from consciously fulfilling its role of promoting social policy," [217] because "the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end." [218]

Justice Cardozo agreed, declaring:

If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist. [219]

Justice Louis Brandeis (1856-1941) therefore encouraged the Court to break new ground and lead society in new directions, urging, "If we would guide by the light of reason, we must let our minds be bold." [220]

Even though individual Justices and legal educators had encouraged evolutionary law, it was not until Earl Warren (1891-1974) became Chief Justice that there was finally a majority of Justices on the Court willing to embrace that view. One of those Justices (now in the majority) was William Brennan (1906-1997), champion of what he termed "the evolving understanding of the Constitution," "the 'living' Constitution," "the freedom to reinterpret constitutional language," "a malleable Constitution," the Constitution's "power of adaptation," and "the Constitution's 'suppleness.'"

Consequently, during Warren's sixteen year tenure, the Court became a powerful societal force, striking down numerous long-standing historical practices while acknowledging that it was doing so without any previous precedent.
[222] In short, the Court thus publicly affirmed that it had finally arrived at its fully evolutionary aspiration, no longer bound by history or precedent.

Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life."
[223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]

Harvard Professor Steven Wise summarizes this radical revolution in legal theory occasioned by the adoption of Darwin's principles:

"To understand the strong normative appeal of evolutionary models, one must first appreciate that American law, like biology at the time of Darwin, faces the problem of providing a theory of creation which does not invoke a Supreme Being." E Donald Elliott, "The Evolutionary Tradition in Jurisprudence," 85 Columbia Law Review 38, 91 (1985). Elliott, who believes that the manner in which law is affected by the ideas that it routinely borrows from other disciplines has been largely unexplored, sets sail by chronicling how the Darwinian idea of evolution has affected the jurisprudential work of such legal scholars as Holmes, Wigmore and Corbin. Id. See also Jan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 Cal. L. Rev. 343, 362 (1984) ("Holmes' The Common Law is first of all an account of legal change, and its object in this respect is to exhibit the workings of Darwinian evolution in law"). Evolutionary jurisprudence was often shunned during the middle half of the twentieth century due to that period's association of evolution with Spencer's racist and reactionary Social Darwinism. Elliott, at 59, 76. It is shunned no longer. Id. See Roger D. Masters, Evolutionary Biology, Political Theory and the State, in Law, Biology & Culture-The Evolution of Law 171 (Margaret Gruter & Paul Bohannon eds., 1983). [225]

Yet, is the fact that the Constitution is now a living, malleable, evolving document, necessarily bad? After all, society does change and should not necessarily be bound by decisions made two centuries ago.

Significantly, the framers agreed with this thesis-they understood that times would change and therefore so should the Constitution. However, they would have vehemently disagreed with the mechanism by which this change occurs today.

The framers made clear that when the meaning, and thus the application, of any part of the Constitution was to be altered, it was to be at the hands of the people themselves, not at the feet of the judiciary or through the usurpation of any legislative body. For this reason, Article V was placed in the Constitution to establish the proper means whereby the people might "evolve" their government. As Samuel Adams explained:

[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary.

The Evolution of Genocide by Rebecca Messall

My greatest mistake as a pro-life person was in thinking Roe v. Wade arrived by itself. I didn't want to link abortion to other controversial subjects, which scared or confused me, detracting from the obvious atrocity of butchering a living, unborn child. Because of my narrow focus, I ignored the horrific world-view and the socio-political-financial machinery fueling abortion.

Like many pro-life people, I felt that the origin of the species was a matter of God's choice of methods--but not a pro-life concern. Busy in local pro-life matters, I believed evolution was an "education dispute," a controversy I could, gratefully, sit out.

I realized that evolution by natural selection has been the fundamental pro-life issue since Darwin himself. His argument that biologically inferior people threaten to deprive intellectually superior people of food and resources established a scientific-sounding rationale for genocide, which is used today by the abortion-based population control and family planning establishments, as well as others bent to this day on improving the race by laboratory methods.

What's Wrong With the Science Establishment?

Scientists, it seems, should be the last people to need reminders about the importance of facts. A good scientist cannot have too many facts, because they are grist for the scientific mill as it grinds out explanations and theories about the world around us.

Why, then, do so many scientists ignore certain facts of life as they line up to support abortion and to engage in destructive fetal and embryo research? Why do they obscure or deny the fact that human life begins at fertilization? Why are so many involved in population control? Why do some have a deep prejudice against people with disabilities and people of color?

How Darwinism led to the Holocaust And how it is destroying respect for human life today -From Darwin to Hitler, Weikart, Richard

Since the defeat of Nazism, evolutionists have been at pains to conceal the obvious connection between Darwin's theory of "survival of the fittest" and Hitler's ideology of a death-struggle between superior and inferior races. Their chief tactic: to claim that Hitler's "social Darwinism" was a perversion of "true" Darwinism. But in this stupendous work of intellectual history, Richard Weikart conclusively proves that Hitler's views were not only based firmly on core Darwinian principles, but widely echoed by leading Darwinist scientists, philosophers, and ethicists of the late 19th and early 20th centuries -- and that it was only after worldwide revulsion at the horrors of the Holocaust that such views disappeared from the Darwinist "mainstream."

With impeccable documentation, Weikart demonstrates that many leading Darwinian biologists and social thinkers of the pre-Hitler era believed -- and celebrated the fact -- that Darwinism overturned traditional Christian ethics, especially those pertaining to the sacredness of human life. In its place, they exalted evolutionary "fitness" (especially in terms of intelligence and health) as the highest arbiter of morality. Thus, whatever "improves" the race by favoring the strong and eliminating the weak is justified morally -- and this included not only euthanasia and abortion for certain groups, but even infanticide and genocide, all ultimately embraced by the Nazis.


In 1973 seven people opined that a woman can get away with murder and claimed that the Constitution agreed with their opinion. Every U.S. President since Roe v Wade has enforced that unconstitutional opinion against the States, as though it were an Act of Congress, or constitutional Amendment.

Let the following facts be submitted to a candidly democidal nation:

  1. "The Virginia Declaration of Rights strongly influenced Thomas Jefferson in writing the first part of the Declaration of Independence. It later provided the foundation for the Bill of Rights." The Foundation for the National Archives
  2. "I - That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." Virginia Declaration of Rights
  3. Thomas Jefferson, in the Declaration of Independence, stated the source of Rights and expressed the fundamental purpose of government: "....all Men are created equal...endowed by their Creator with...unalienable Rights, that among these are Life....to secure these Rights, Governments are instituted...." Declaration of Independence : July 4, 1776
  4. Preamble to the U.S. Constitution," We the People of the United States, in Order to....secure the Blessings of Liberty to...our Posterity, do ordain and establish this Constitution...." Preamble
  5. "No person shall be...deprived of life...without due process of law...."Amendment V

The National Lawyers Association takes the position that the practical effect of the legal connection or relationship between the Declaration and the Constitution is that the Constitution is to be interpreted in the light of the principles set forth in the Declaration.[...] The Preamble introduces and explains the purpose of The U.S. Constitution, and links it to The Declaration of Independence."

The Preface to the United States Code - Annotated states that "this code is the official restatement in convenient form of the general and permanent laws of the United States in force December 7, 1925...." The Preface also states that there is also contained therein a copy of the Declaration of Independence, the Articles of Confederation, the Ordinance of 1787 and the Constitution with Amendments. Robert C. Cannada, Senior Counsel, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Mississippi, "America's Choice: A Limited Government Or A Totalitarian Government," The National Lawyers Association Review, Winter 1996.

If abortion is murder, then as currently practiced in the United States, it is mass murder on a scale that eclipses the Jewish Holocaust, and the most enlightened people on earth think that the U.S. Constitution permits mass murder. And we want to help Iraq with their Constitution?

American College Of Pediatricians on 'health of the mother.'

  1. ...with higher regard for the advance of science and the values of medicine, we recommend that elective abortions not be performed. Although some abortions are said to be performed to preserve the life of the mother, they are in fact, rarely necessary for those purposes. Maternal health factors that are said to demand termination of the pregnancy can also be accommodated without sacrifice of the fetus. When there is possibility of independent viability of the fetus, we argue for ending the pregnancy by appropriate delivery.
  2. All pre-term deliveries should be done with the health and safety of both mother and infant in mind, and, whenever possible, with a second physician present to safeguard the life and health of the fetus.6
  3. Decisions regarding the provision of life-sustaining medical treatment for the newly born infant should then proceed as for any other infant or child.7,8

Addendum (Editor's Note):This statement is intended to answer an ethical question. How should pediatricians approach and manage a viable fetus who might be unintentionally or inadvertently delivered alive in a late-term abortion attempt? The ethical question of whether a legal right to an abortion implies a right to the termination (death) of the viable or near-term fetus is still important; but in the course of producing this statement, the legal question has been addressed in part. In August 2002, Congress passed and the President signed the "Born Alive Infants Protection Act." This new law extends the same protections to any infant born alive, including those survivors of an abortion procedure.

Though the "Born Alive" law is a step in the right direction, it leaves unanswered the issue of the rights of the unborn. The pediatric community unfortunately has been influenced in policy development by personal perception of societal values and by existing civil law. Civil law cannot take the place of conscience or dictate moral norms. Societal standards must be characterized by a moral basis of respect for all and especially for the rights of the weakest and the most defenseless. The issue here is not viability but rather the inviolability of all human persons from conception to natural end. As pointed out by Paul Ramsey in 1975 (Ramsey P. Appendix,Research on the Fetus, National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 1975), "The fetus is generally viable at all stages unless it is removed from its natural environment." As we know, the limits of viability have undergone considerable change over the past 30 years and it is anticipated this change will continue. A court, society or the medical profession cannot define humanhood on the basis of such arbitrary measures.

Pediatricians must advocate for all children, not just for those determined "viable." We should honor the advocacy proclaimed interestingly by the American Academy of Pediatrics in 1971, preceding Roe v. Wade by some thirteen months, to include pediatricians' responsibility for the child from conception through young adulthood. We must uphold scientific integrity. We must speak out against further "sacrifice of the fetus." The American College of Pediatricians shall not waiver from that commitment.

June 12,2003, Termination of Pregnancy

When Do Human Beings Begin?"Scientific" Myths and Scientific Facts by Dianne N. Irving, M.A., Ph.D

"The fusion of the sperm (with 23 chromosomes) and the oocyte (with 23 chromosomes) at fertilization results in a live human being, a single-cell human zygote, with 46 chromosomes - the number of chromosomes characteristic of an individual member of the human species."

"A human zygote is a human being. It is not a "potential" or a "possible" human being. It's an actual human being — with the potential to grow bigger and develop its capacities.

When Do Human Beings Begin?"Scientific" Myths and Scientific Facts by Dianne N. Irving, M.A., Ph.D

"Scientifically, the international consensus of embryologists is that human beings begin at fertilization (or cloning)--i.e., when their genetic code is complete and operative; even before implantation they are far more than a "bunch of cells" or merely " potential human beings."" The Founding Statement of Do No Harm: The Coalition of Americans for Research Ethics July 1, 1999

"Life begins like everything else, at the beginning. At the moment of fertilization, a new human life begins. The human embryo is a being; and being human, she is a human being. She is person and not property because no property has the property of building itself. Everything necessary to make the new human being-the entire blueprint necessary to build a human being capable of going to the moon and putting a foot on the moon-is there in the very beginning. Nothing is added after the moment of fertilization. It is all locked in. Not only the color of our hair and eyes but even how long we will live, accident or sickness not intervening, is there in the very beginning. The complete information necessary to build the new human being is written in the smallest subscript of the universe. We are fearfully and wonderfully made!"The Human Embryo: Too Little to Care Much About? by R. Martin Palmer, The Center for Bioethics and Human Dignity

"A fertilized egg, or zygote, is the first cell stage and exists for only 24 hours. After cell division, this is no longer a fertilized egg. We then use several other names, which are incomprehensible to the general public, but one name covers them all and that is "embryo." So after the first day, he or she is a "living human embryo." Most importantly, "fertilized eggs" do not implant within the womb. There is a certain power to their sneering comment, "Why would you want to protect a fertilized egg from planting?" It makes a difference if you say, "Why would you want to prevent a living human embryo from planting?"" A Health Exception By J.C. Willke, MD

"After fertilization has taken place a new human being has come into existence. This is no longer a matter of taste or opinion. Each individual has a very neat beginning, at conception." Dr. Jerome Lejeune, genetics professor at the University of Descartes, Paris. He discovered the Down syndrome chromosome.

"From the moment a baby is conceived, it bears the indelible stamp of a separate distinct personality, an individual different from all other individuals." Ultrasound pioneer, Sir William Liley, M.D. 1967.

"It is scientifically correct to say that an individual human life begins at conception." Professor M. Matthews-Roth, Harvard University Medical School.

"By all the criteria of modern molecular biology, life is present from the moment of conception." Professor Hymie Gordon, Mayo Clinic.

Rape, Incest, & Murder

"The child conceived in rape is one of us, merely smaller and less developed and more dependent, and not in full view, but equally a person. Killing her is wrong, just as killing any child is wrong. We must remember that the child is absolutely innocent of the crime of her father. She is not a part of her mother's body, and she is not a part of her father's character. She inherits character traits from both her parents, but in her individual being as a person, she is absolutely distinct from both of them. Even the character traits that are received from a parent are now her own traits. The child is totally her own person. She is not responsible for the crime that led to her conception, and she is untainted by it.1 Seeing her in these negative ways is sheer prejudice, not based on reality, but at odds with it."
Dr. Stephen Schwarz, The Moral Question of Abortion, (Manchester, NH: Sophia Institute Press, 1990), Chapter 10: Abortion in Cases of Rape, Incest, Health and Life of the Woman

"I belong to an on-line support group (me, in a sup- port group, there's a picture) composed of adult children born of rape or incest. There are more of us in the former category than the latter. Jennifer is our webmistress, organizer, facilitator, coach, head nanny, chief nag (though very nice about it), and the child of a violent rape. Mostly, I lurk. But for some in the group, I am a kind of unofficial chaplain and sometime pastoral advisor. There are children born before Roe v. Wade as well as children born after Roe v. Wade. The handles adopted by some in the group are evocative: "former fetus," "unawares angel," names like that." Everything Personal: Children Born of Rape or Incest," Touchstone Magazine, Jan/Feb 2003

" She is a young lady who spreads joy wherever she goes. She has a place in the lives of many, not only her new husband, her parents, and her brothers, but many who know her well, and many who have met her in passing-a unique place that no one else could fill. She is happy by nature at 23, married, an avid reader, a good friend, a serious Christian. This is the person that these well-meaning people were willing to sentence to death. Oh, not now, not when they can see her; but when she was in danger the first time, in the womb and hidden from view." Robert Hart, "Her Mother's Glory: The Hardest Abortion Case," Touchstone Magazine, Jan/Feb 2003

"I, having lived through rape and also having raised a child 'conceived in rape,' feel personally assaulted and insulted every time I hear that abortion should be legal because of rape and incest," says Kathleen DeZeeuw in Victims and Victors. "I feel we're being used to further the abortion issue, even though we've not been asked to tell our side of the story." We can begin by educating the public and legislators on what the women themselves-the victims of rape and incest-say about abortion. "Get Victims and Victors to legislators. Ask them to call for congressional hearings," says Dr. Reardon. "Urge them not to provide money for abortions resulting from rape or incest until they hear what the women say."Pamela Pearson Wong, "Abortion's House of Cards," Concerned Women for America, Family Voice, January/February 2001.

"In Victims and Victors, 20 women like the ones quoted above share what it is like to face a pregnancy resulting from rape or incest. They speak bravely and candidly of the pain of sexual assault, of the sadness and trauma of abortion, and of the joy and healing of giving birth."
David C. Reardon, Julie Makimaa and Amy Sobie (Editors), Victims and Victors (San Francisco, CA 94109: Acorn Books, 2000).

"170 to 340 assault rape pregnancies occur per year in the United States."
Dr. and Mrs. J.C. Willke, Why Can't We Love Them Both, (Snowflake, AZ 85937: Heritage House 76, Inc., 1998) Chapter 29, Rape.

Kevin M. Jeanfreau on Democide in the U.S.

The map above has 17 states blacked out. The population of these states is equal to the 45,000,000+ reported “legal” surgical abortions since 1973. Perhaps this visual perspective helps one to grasp the number of people that are gone, dead-robbed of their God-given constitutional rights to life and liberty. Each time a person is aborted or euthanized and robbed of their rights, our rights and very lives become less secure.

Kevin M. Jeanfreau, Founder Christian Patriots For Life

Definition of Abortion

"The administration of any drug, device, potion, medicine, or any other substance or the use of any instrument or any other means whatsoever with the specific intent of terminating the life of a preborn child [the human being in existence from fertilization until birth] or preborn children; "abortion" shall not be construed to include the following: 1. a case in which the unintended death of a preborn child or preborn children results from the use by a physician licensed to practice medicine under (insert code pertinent to law) of a procedure that is necessary to save the life of the mother or the preborn child or preborn children. And that is used for the express purpose of, and with the specific intent of, saving the life of the mother or of the preborn child or preborn children; 2. a spontaneous abortion; 3. the removal of a preborn child who has died; 4. any therapeutic treatment or surgery performed upon a preborn child or preborn children that results in the unintentional death of a preborn child or preborn children."

American Life League

U.S. Constitution Article 3, Section 2, Clause 2

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

For expert testimony on this Clause see the following:

  1. Testimony Of Martin H. Redish, Professor Of Law And Public Policy, Northwestern Law School
  2. Testimony Of Phyllis Schlafly, Founder And President, Eagle Forum
  3. Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, Notre Dame Law School

Impeaching Federal Judges:A Covenantal And Constitutional Response To Judicial Tyranny

There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don’t think they can obtain the final goal of conviction.

Joseph Story understood that the threat of impeachment must be real in order to serve as an effective check. He wrote that on the one hand, impeachment should not "be a power so operative and instant that it may intimidate a modest and conscientious statesman or other functionary from accepting office," but that on the other hand, it must not be "so weak and torpid as to be capable of lulling offenders into a general security and indifference.

There is some evidence to support the thesis that impeachment investigations also serve the function Story anticipated.

Steven W. Fitschen, Impeaching Federal Judges: A Covenantal And Constitutional Response To Judicial Tyranny - Regent University Law Review, Volume 10, SPRING 1998

Rep. Bill Graves on Judicial Tyranny

It is now generally believed that grounds for removal under impeachment must be only for treason, bribery or for violation of a criminal statute. However, David Barton, in his book “Impeachment: Restraining An Overactive Judiciary,” has documented that the Framers of the Constitution had a much broader view. Barton states that “impeachments of federal judges in the century-and-a-half following the ratification of the Constitution usually revolved around non-statutory and non-criminal charges rather than today’s standard of a direct violation of statutory law.”

Justice Joseph Story, the U.S. Supreme Court’s greatest scholar, believed such a restriction was preposterous and said, “No one has as yet been bold enough to assert that the power of impeachment is limited to offenses positively defined in the statute book of the Union as impeachable high crimes and misdemeanors.” Justice Story said impeachment was for protecting the rights of the people “and to rescue their liberties from violation,” and a remedy for “political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of public interests,” as well as a check upon “arbitrary power.” So were “unconstitutional opinions” and “attempts to subvert the fundamental laws and introduce arbitrary power.”

Founding Father and later Supreme Court Justice James Wilson said “(i)mpeachments are confined to political characters, (and) to political crimes and misdemeanors..” George Mason, who is called “the Father of the Bill of Rights,” saw impeachment as a remedy for “attempts to subvert the Constitution.” Hamilton said the subjects of impeachment are those which may “be denominated political.” Justice Samuel Chase was impeached for his judicial high-handedness and arbitrary uses of the judicial power. Barton also points out that one federal judge was impeached for supporting the secession movement. Federal judges were removed from office in 1904, 1912 and 1926 for judicial high-handedness.

Judge Robert Bork warned that lawless Courts are “engaged in civil disobedience, a disobedience arguably more dangerous, because more insidious and hence more damaging to democratic institutions, than the civil disobedience of the streets.” The Battle of Bunker Hill was not fought and the Founders did not pledge their “lives, fortunes and sacred honor” to empower federal judges to twist, as Jefferson said, the Constitution into any form they please. If constitutional liberties are to be restored and republican government preserved, Congress must utilize its constitutional impeachment power.

JUDICIAL TYRANTS SHOULD BE IMPEACHED - Bill Graves is a lawyer and a member of the Oklahoma House of Representatives

Terror in the Womb: The Forgotten Victims

"Interestingly, more Americans were killed by abortionists on September 11 (about 4,300) than were killed by Islamic terrorists (about 3,000). Assuming 3,000 deaths among the 50,000 people who worked at the World Trade Center, about one in seventeen was killed. One in three unborn babies is killed by abortion every day. On September 11, it would have been six times safer to be a worker in the Twin Towers than it was to be a baby in her mother’s womb."

Terror in the Womb: The Forgotten Victims By Mark Harrington

R.J. Rummel on Democide

Democide is meant to define the killing by government as the concept of murder does individual killing in domestic society. Here intentionality (premeditation) is critical. This also includes practical intentionality. If a government causes deaths through a reckless and depraved indifference to human life, the deaths were as though intended. If through neglect a mother lets her baby die of malnutrition, this is murder. If we imprison a girl in our home, force her to do exhausting work throughout the day, not even minimally feed and clothe her, and watch her gradually die a little each day without helping her, then her inevitable death is not only our fault, but our practical intention. It is murder. Similarly, for example, as the Soviet government forcibly transported political prisoners to labor camps hundreds of thousands of them died at the hands of criminals or guards, or from heat, cold, and inadequate food and water. Although not intended (indeed, this deprived the regime of their labor), the deaths were still public murder. It was democide.

DEATH BY GOVERNMENT Chapter 2, Definition of Democide - R.J. Rummel

State Homicide Laws That Recognize Unborn Victims

A summary of the laws of the 30 states that recognize the unlawful killing of an unborn child as homicide in at least some circumstances. The federal Unborn Victims of Violence Act, enacted April 1, 2004, covers unborn victims of federal and military crimes.


JUSTICE Clarence Thomas on the 10th Amendment

In Madison's words, the popular consent upon which the Constitution's authority rests was "given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." The Federalist No. 39, p. 243 (C. Rossiter ed. 1961) (hereinafter The Federalist). Accord, 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 94 (J. Elliot 2d ed. 1876) (hereinafter [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 3] Elliot) (remarks of James Madison at the Virginia convention). 1

When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, 10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated. In the words of Justice Black, "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source." Reid v. Covert, 354 U.S. 1, 5 -6 (1957) (plurality opinion) (footnote omitted).

In each State, the remainder of the people's powers - "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt. [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 4] 10 - are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power - that is, where the Constitution does not speak either expressly or by necessary implication - the Federal Government lacks that power and the States enjoy it.

These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States "are reserved to the States respectively, or to the people." With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which "reserved" powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.

To be sure, when the Tenth Amendment uses the phrase "the people," it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 5] would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President surely the most national of national figures - is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where "the Votes shall be taken by States, the Representatives from each State having one Vote"); Amdt. 12 (same).

The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, "[n]o [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 6] political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass." McCulloch v. Maryland, 4 Wheat. 316, 403 (1819).

Any ambiguity in the Tenth Amendment's use of the phrase "the people" is cleared up by the body of the Constitution itself. Article I begins by providing that the Congress of the United States enjoys "[a]ll legislative Powers herein granted," 1, and goes on to give a careful enumeration of Congress' powers, 8. It then concludes by enumerating certain powers that are prohibited to the States. The import of this structure is the same as the import of the Tenth Amendment:

US Term Limits, Inc. v. Thornton, 514 US 779 (1995).


The 1973 Roe vs. Wade ruling caused great harm in two distinct ways. First, it legalized abortion at any stage, establishing clearly that the Supreme Court and the government condoned the cheapening of human life. Second, it firmly placed this crucial issue in the hands of the federal courts and national government. The federalization of abortion was endorsed even by those who opposed abortion. Instead of looking for state-by-state solutions and limiting federal court jurisdiction, those anxious to protect life came to rely on federal laws, eroding the constitutional process. The authors of the Constitution intended for criminal matters and acts of violence (except for a few rare exceptions) to be dealt with at the state level. Now, however, conservatives as well as liberals find it acceptable to nationalize issues such as abortion, marriage, prayer, and personal sexual matters-- with more federal legislation offered as the only solution. This trend of transferring power from the states to the federal government compounds our problems-- for when we lose, it affects all 50 states, and overriding Congress or the Supreme Court becomes far more difficult than dealing with a single state.


Hamilton Or Madison: Federalist #51

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

The Federalist Papers : No. 51

Robert H. Bork on Roe v Wade

"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."

Constitutional Persons: An Exchange on First Things 129 (January 2003): 28-36.

Abraham Lincoln describes the transition from a Democratic Republic to a judicial oligarchy

"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." - A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).

Justice Curtis explains how to determine when the Federal Courts are wrong

"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought tomean." - Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).

Thomas Jefferson on the text of the Constitution
"On every question of construction [of the Constitution] let us 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 intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

Citizens guide to the text of Constitution
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.

Supreme Court Justice Antonin Scalia

, in a speech before The Catholic University of America, advocates literal interpretation of the Constitution, declaring "[t]he words are the law." Scalia says, "the Constitution means what it ought to mean...October 18, 1996 speech.
I belong to a school, a small but hardy school, called "textualists" or "originalists." That used to be "constitutional orthodoxy" in the United States. The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course. As I say, until recently this was constitutional orthodoxy. Everyone at least said that: That the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times. If it's inadequate, we can amend it. That's why there's an amendment provision. That was constitutional orthodoxy. When I say constitutional orthodoxy, I don't mean its just judges and lawyers. Judges and lawyers are not very important. It's ultimately the American people. What do they think this document is?

This is not, I caution you, a liberal versus conservative issue. Conservatives are fully as prepared to create new rights under this evolutionist theory of the Constitution, as liberals are. Court TV Library: Supreme Court -- Antonin Scalia Speech, October ...

Clarence Thomas

, Be Not Afraid, 2001 Francis Boyer Lecture, American Enterprise Institute, Annual Dinner (Washington, D.C.) Publication Date: February 13, 2001

When deciding cases, a judge’s race, sex, and religion are not relevant. A judge is not a legislator, for whom it is entirely appropriate to consider personal and group interests. The ideal of justice is to be blind to such things.

When struggling to find the right answer to a case, judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality.

The greater the room for judicial discretion, the greater the temptation to write one’s personal opinions into the law. This is especially important at the Supreme Court, where many of the usual limitations on judicial discretion, such as authority from a superior court or stare decisis, either do not exist, or do not exist with the same strength as with other courts. Hence, other doctrines and principles designed to narrow discretion and to bolster impartiality assume greater significance for the Court.

When interpreting the Constitution and statutes, judges should seek the original understanding of the provision’s text, if the meaning of that text is not readily apparent.

First, by tethering their analysis to the understanding of those who drafted and ratified the text, modern judges are prevented from substituting their own preferences for the Constitution.

Second, it places the authority for creating the legal rules in the hands of the people and their representatives, rather than in the hands of the judiciary. The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean.

Third, this approach recognizes the basic principle of a written Constitution. "We the people" adopted a written Constitution precisely because it has a fixed meaning, a meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution. Aside from amendment according to Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President.

Another principle of self-restraint derives from the nature of the legal analysis we employ. It is always tempting to adopt balancing tests, or to rest one’s decision on the presence of several factors. Judges can then say that they decided the case on its facts, thereby preserving some degree of flexibility for the next case. While this may be appropriate for trial courts, or for state courts, it is seldom the best approach for the Supreme Court or a federal appellate court. Whenever possible, the Court and judges generally should adopt clear, bright-line rules that, as I like to say to my law clerks, you can explain to the gas station attendant as easily as to a law professor.

Rules not only provide private parties with notice, but also limit judicial discretion by narrowing the ability of judges in the future to alter the law to fit their policy preferences. Broader rules are more likely to be impartial as to how they affect specific parties. Thus, clear rules—along with life tenure and an irreducible salary—encourage judges to maintain their impartiality.

A judge who strictly adheres to the rules of impartiality and judicial restraint is likely to reach sound conclusions. But as I’ve said, reaching the correct decision itself is only half the battle. Having the courage of your convictions can be the harder part. - AEI - News & Commentary

Honorable John N. Hostettler, a Representative in Congress From the State of Indiana Thursday, June 24, 2004, - House of Representatives,Subcommittee on the Constitution,Committee on the Judiciary, Washington, DC. - Limiting Federal Court Jurisdiction To Protect Marriage For The States

"Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said that I have always understood as perceived by this nonlawyer to be a disconnect between the plain wording and construction of the Constitution and the opinions handed down by the Federal judiciary as, quote, "''constitutional,''" end quote. But this perceived disconnect was explained to me with such clarity by, and rightfully so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of Representatives Judiciary Committee's Subcommittee on Courts and Intellectual Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law at the University of Texas law school, profoundly observed that, quote, "''the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution,''" end quote. At that point, the scales fell from my eyes, and I realized that I cannot confuse what is taught in our Nation's law schools and what is expounded by so-called constitutional scholars on the 24-hour news talk shows with the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866."

{ When all else fails, read and follow the directions in the Constitution.}

Alexander Hamilton on the Weakest Branch, the Judiciary

"The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power...."

1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. -
The Federalist Papers : No. 78

President Andrew Jackson on Executive Review

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." - President Jackson's Veto Message Regarding the Bank of the United States; July 10, 1832

[ In Marbury v Madison, John Marshall used the same logic to derive the doctrine of judicial review which isn't explicitly stated in Article 3. If the federal courts can review federal & state laws, what prohibits the President, Congress and the States from reviewing opinions of the federal courts? If it doesn't it take an amendment to void federal and state law, then why should it take an amendment to void an unconstitutional majority opinion of the federal courts? Amendments are used to correct the Constitution. Impeachment and removal along with jurisdiction stripping are ways to correct the federal courts. ]

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