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Supreme Court’s Windsor Sarumans abandon reason for madness

“But though this be a State of liberty, yet it is not a state of license; …The state of nature has a law of nature to govern it, which obliges everyone; and reason, which is that law, teaches all mankind who will but consult it….” (John Locke, The Second Treatise of Government, Chapter II)

“Tell me, friend, when did Saruman the Wise abandon reason for madness?” (Gandalf to Saruman, Lord of the Rings Part I, The Fellowship of the Ring“)

When it comes to abortion or laws against homosexuality, the Supreme Court’s current jurisprudence relies on the notion that that the Constitutionally expressed will of the people at the national level, represented by the Supreme Court, overrides the will of the people in their respective States. Dealing now with the marriage issue they claim that the will of the people in their respective states overrides the Constitutionally expressed will of the people at the national level, represented in Congress. By this maneuver they slyly implement a “divide to conquer” strategy, intended to imprison the people of the United States in a “house divided against itself”, where their sovereignty in one guise nullifies their sovereignty in another.

They do this in order to give a powerful elitist minority the opportunity to undermine the house of liberty altogether. Furthermore, they implicitly legitimize the notion that the irresponsible will of the people is, in and of itself, the source of sovereign authority. This paves the wave for a “tyranny of the majority”, which in practice becomes the forceful tyranny of an elitist clique, ruling without constraint over the all individuals, including the majority in whose name they have usurped lawless, absolute power.

God knows under the influence of what corrupting power, a majority of the U.S. Supreme Court Justices have now openly abandoned the discipline of reason. In their decision in the United States v. Windsor, they refused to apply the law laid down by Congress in the Defense of Marriage Act (DOMA). Their questionable insistence on assuming jurisdiction in the case suggests that their decision is part of a larger agenda. It is the opening gambit in a design for despotism that entails a manifestly self-contradictory jurisprudence because it aims to overthrow constitutional self-government.  Except we keep this malicious objective in mind, the Windsor majority’s opinion is so evidently unreasonable that it warrants the suspicion that these Justices have gone mad.

The 14th Amendment to the Constitution declares that “No state shall…deny to any person within its jurisdiction the equal protection of the laws”.  On account of this language, the Justices in the Windsor majority pretend that the Federal Legislature has no power to secure the properties with which the “laws of nature and of nature’s God” endow the human family, in order to perpetuate the species. Yet the Constitution’s 5th Amendment declares that “No person shall… be deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use, without just compensation.”  What compensation can justly requite human beings for government action or inaction that deprives them of the bond of mutual obligation, antecedent to all government whereby, in the first instance children belong to their biological parents and those parents belong with their children?

This mutual belonging is the natural paradigm of all private property. It is the defining ground of the first civil society, the family. It makes clear, in the experience of all humankind, that peace is the default condition of human social life. Arising from the consensual and voluntary observance of God-endowed natural law, this peace secures the preservation and perpetuation of humanity, individually and as a whole.  By their decision the Windsor majority ignores, contradicts and undermines the effective authority that is a God-endowed property of the natural family. It is the institution whereby, in view of their first, very vulnerable condition as helpless infants, the natural law makes reliable provision for the preservation and security of all human beings. Moreover, the effective operation of the natural family, which is the paradigm of government by the consent of the governed, is by and large what makes it possible to implement the principle of consent as the basis, in fact, for orderly civil self-government.

So, by attacking the God-endowed authority of this natural institution, the justices directly attack the common good of the whole society. They set the coercive force of human law above the consensual force of natural law. This makes coercion the basis for government, rather than consent. It substitutes “might makes right”, i.e., the principle of tyranny, for the “consent of the governed”, which is the principle of constitutional self-government.

Moreover, the majority in United States v. Windsor simply ignores the fact that when the U.S. Congress  enacted the DOMA, it acted in defense of the God-endowed unalienable rights of the natural family. The Windsor justices assert that that the “Federal Government uses the state-defined class…to impose restrictions and disabilities.” They assert that the DOMA is “seeking to injure the very class New York seeks to protect…. ” They assert that DOMA arises from “a bare congressional desire to harm a politically unpopular group.” This entire line of attack implicitly denies and disparages the unalienable rights of the natural family, and Congress’s Constitutional duty to respect them. In doing so the Windsor decision does what the U.S. Constitution’s 9th Amendment explicitly forbids. Eschewing the logic of that Constitutional provision, it rejects the premise of God-endowed unalienable rights.

Ever since the American people first declared their independence, the premise of God-endowed unalienable rights has been essential to their identity as a free people.  That premise is the basis and justification for the assertion that government exists to secure unalienable rights.  And it is in the context of that fundamental purpose of government that America’s founders asserted the principle that the just powers of government are derived from the consent of the governed.  The majority’s decision in United States v. Windsor is therefore a radical attack against the form of government that respects and implements that indispensable principle of constitutional self-government.

In its abortion jurisprudence the Court relies on the notion that governments at all levels in the United States are obliged to respect the provisions of the bill of rights. This is the famous (or infamous) incorporation doctrine, erected with reference to the language of the 14th amendment. The doctrine allows the U.S. Supreme Court to assert a Constitutional duty to safeguard the individual rights of persons against action or neglect by the State governments. But if that doctrine allows the Federal government to override the longstanding practice of respecting the will of the people of the States, respectively, when it comes to abortion or the practice of homosexuality, why does that permission suddenly disappear when the U.S. Congress acts to safeguard the God-endowed unalienable rights of the natural family?

Does the majority in the DOMA decision want us to believe that the opinion of judges not elected by the people, which relies on illogically self-contradictory jurisprudence with respect to U.S. Constitution, nonetheless supersedes the authority of a Congressional majority relying on the duty to implement the explicitly stated constraints of the 9th Amendment? Without the Constitution, the justices represent no one but themselves, whereas the Congressional majority can claim to represent the present will of a majority of the whole people, the very will that speaks with the voice of overall sovereignty in the language of the U.S. Constitution? On what grounds does the sovereign will of the people in their respective states override the sovereign will of the American people as a whole when it comes to upholding the unalienable rights the just powers of all governmental authorities are supposed to secure? If “to secure these rights governments are instituted among men”, neither God nor the Constitution authorizes government at any level to permit attacks upon them, even in the name of longstanding practice and tradition.

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  • test June 13, 2014, 1:22 pm

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  • Richard Chiu June 28, 2013, 9:27 am

    More directly to the point, the Constitution clearly lays out the Federal authority for the DOMA and similar acts in Article IV section 1.

    “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

    Insofar as the relationship of parents to their children and spouses to one another creates a relationship with particular legal implications, marriages are unquestionably matters of the public records of each state. In order that these records may be recognized in other states (necessary to permit the free travel of citizens among the various states), the Congress is authorized to set the criteria which ensure that there will be some measure of consistency in such records both as to how they were determined and what the effects will be.

    Imagine going on a vacation, crossing a state border, and being arrested for kidnapping your own children, because the state into which you have ventured does not recognize your marriage. It is exactly this category of horrific scenario that the Full Faith and Credit clause was framed to prevent. Now imagine that you cross another state border and find that you are under arrest for having married your wife, all sexual relations having been defined as equivalent to rape (in accordance with certain feminist theories). It is to prevent this alternate horror that the Congress was given the authority to define both the method of proof and the legal effect of various public acts, records, and proceedings.

    The court hasn’t even considered the only relevant passage of the Constitution in deciding this case.

    • alkeyes June 28, 2013, 1:20 pm

      The “full faith and credit” clause gives Congress the power to assure uniformity in the administration of law when dealing with claims of legal status arising from the laws of one State in a case where they are being applied or adjudicated under the jurisdiction of another. It was not intended by the founders, nor has it been construed by the USSC, to give Congress the power to alter the substantive public policy of the States, and thus substitute the substantive will of the Federal government for that of the respective States. It has not, for example, been construed to allow the Federal legislature to establish a uniform regime with respect to divorce requirements, only a uniform basis for establishing the fact that under the laws of a given State a valid divorce decree has been issued; and for determining its intended effects (re property, custody of offspring. etc.).

      Re the Full faith and credit clause, the Supreme Court has applied this “public policy exception” to its construction of both the Constitutional provision and the Federal law based upon it. So in Loving v. Virginia (1967), the case involving a State law re miscegenation (interracial marriage) the Court’s reasoning evoked the logic of fundamental right that I have employed with respect to the marriage issue. Writing for the majority Chief Justice Warren declared that “Marriage is one of the “basic civil rights of man” fundamental to our very existence and survival…” Warren apparently recognized that this first principle in light of which the issue has to be argued in order for the Federal government to establish that it has the authority to correct a State action that abuses its residual sovereignty by violating a right or rights the Constitutional logically obliges the Federal government to secure (by Article IV.4 and/or the 9th Amendment).

      Of course the appeal to “fundamental civil rights” is a disingenuous way of masking the appeal to an authority antecedent to the Constitution in light of which the issue of right has to be decided. The question is: What is there in the Constitution that reasonably justifies this appeal? The answer is the in the 9th Amendment, which recognizes the existence of rights not explicitly enumerated in the Constitution’s provisions, but which cannot be denied or disparaged by Constitutional authority on account of anything in those provisions. This language cannot be understood without reference to some antecedent authority as the original source of a valid claim of right.

      But what authority antecedent to the Constitution substantiates the existence of the rights not enumerated, so that they can be recognized and respected. It cannot be the common law or the law of nations since in certain respects the Constitution implements a form of government based on premises, like the principle that the just powers of government derive from the consent of the governed, not recognized as essential to lawful government by either of those preexisting understandings of law. Such premises in turn require provisions, like those for periodic elections by the people, that neither the common law or the law of nations recognize as logically essential to the legitimacy of government.

      However we know, on account of the Declaration of Independence, that the American people, from the moment of their inception as such, recognized the law of God, the Creator and Supreme judge of the world, as the source of unalienable rights (i..e., rights “fundamental to our very existence and survival” as Warren said.)

      The startling deficiency in both the majority’s opinion in Windsor, and in the argument Scalia makes in his dissent, is that neither makes any reference to the 9th Amendment, and the duty it entails in respect of prohibiting the denial or disparagement of the rights not enumerated in the Constitution and yet retained by the people. Scalia alludes to the gift of self-government he ascribes to the Framers of the Constitution. But like Warren’s allusion to “fundamental civil rights’, this disingenuously begs the question. As clearly stated in the Declaration of Independence, America’s founders saw government by the consent of the governed as an endowment from the Creator, whose laws of nature governs them, as they govern the whole world of His creation. What the USSC owes to the American people is a jurisprudence that respects this indispensable premise of American liberty. The fact that none of the Justices saw fit even to recognize this obligation, much less fulfill it, ought to warn all American’s loyal to self-government that, in this respect, even the so-called conservatives on the USSC are unwilling or unable to defend the first self-evident truth, the one that is the most vital, primordial root of the people’s lawful claim to govern themselves.

      • Richard Chiu June 28, 2013, 4:59 pm

        Well, the entire point of your post (leaving mine aside) is that the Supreme Court has made a decision which disregards the fundamental Constitutional issues in favor of appeals to sophisticates. This naturally raises a difficulty with appeals to what the court has in the past seen fit to decide (or not, as the case may be–it seems you are referring more to the fact that Congress has never attempted it).

        In the case of so-called “interracial” marriages, there can be little question that prohibition of marriage does violate the equal protect clause, if one understands that marriage exists to protect the rights of children to be raised according to the best abilities of their natural parents, and this is rendered unfeasible for children whose natural parents are prohibited from marrying.

        Because homosexual couples cannot have children naturally, allowing them to marry does nothing to protect the rights of such children. Indeed, in order for a homosexual couple to have children, they must as a matter of biological course deprive the child of a least one natural parent. While the law recognizes remedies for children who, by accident of birth, cannot be feasibly raised by their natural parents, to create a legal situation which has no purpose but to ensure such an unhappy outcome would seem to deny them equal protection under the law.

        But this is a view in which it is not the right of parents to children but children to parents which is the fundamental issue in marriage. I prefer this view because that is my view of marriage, but it also has the advantage of appealing to what the Constitution clearly enumerates rather than what it declines to disparage.

        I personally would be hard pressed to argue that a Federal definition of divorce which made it necessary to clearly establish fault and a standard of restitution would be in any way beyond the necessary powers of Congress or a bad thing in itself. But I see no difficulty in finding the current Congress incompetent to make such a law without transgressing heavily against the rights of individuals, starting with their right to a government that was actually representative rather than fraudulently administered by those lacking Constitutional qualifications to hold office (starting with adherence to their oaths to uphold the Constitution).

  • greggjackson June 27, 2013, 8:03 pm

    Brilliant Dr. Keyes. Here is my brief take…(for what it may be worth:-) http://greggjackson.com/blog/?p=969

  • greggjackson June 27, 2013, 8:03 pm

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