Invented tests used by our Supreme Court to circumvent our Constitution

Jul 2015
2,328
1,084
USA
#1
In 1803 Chief Justice Marshall wrote: ”The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?” ______ MARBURY v. MADISON, 5 U.S. 137 (1803)


Unfortunately, our Supreme Court has found a clever process to circumvent both the text, and legislative intent of our constitution as it was expressed during its framing and ratification debates … debates which give meaning and context to our Constitution’s text. During this process the very limits agreed to by the people in a written constitution are set aside and replaced with the arbitrary whims and fancies of the Court’s majority, which is then asserted to be the rule of law, but in effect is judicial tyranny. The mechanics of this subversive process is very interesting to study.


One of the Supreme Court‘s methods used to set aside the limits of our constitution are various tests the Court has invented which were unknown to our Founders. These “tests” began to appear and gain a foothold during the Warren Court. One such test [e.g., see Loving v. Virginia, 1967] was the rational based test under which a law being challenged had to withstand the Court’s judgment that the law in question was “rationally based” or “reasonable” to survive the Court‘s review. Of course, this allows the Court’s members to switch the subject from what is and what is not constitutional, to a subjective question having nothing to do with the constitutionality of the law.


Whether rational or not, a law which violates the Constitution cannot be justified by the Court as being constitutional! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the Legislature! To do so is to usurp legislative authority and ignore the separation of powers intentionally built into our Constitution by its framers.


For example, imaging today if black females were denied employment as police officers by a local community in spite of the 14th Amendment’s explicitly intended protection against distinctions in law based upon race, and the Supreme Court upheld the denial of employment because the local government managed to present an “exceedingly persuasive justification” for not hiring black females. This is what these tests are about. The tests are not designed to establish the true intent and meaning of our Constitution and enforce it. They are designed to create an opportunity for a majority on the court to second guess the wisdom of our Constitution and/or duly passed legislation, and strike it down or uphold it depending on the majorities’ personal predilections, its sense of social justice, fairness, or reasonableness, and without regard to the true intent and meaning of our Constitution.


Keep in mind our wise Founders provided Article V, our Constitution’s amendment process, to change our constitution’s commands and upgrade it to accommodate changing times. And unlike a renegade majority cabal on our Supreme Court ignoring our Constitution’s text and legislative intent, and imposing its personal whims and fancies as the rule of law, our Constitution’s amendment process requires consent of the governed by the limits outlined in Article V, when and if a defect is alleged to be found in our Constitution and change is required.


By the early 1970’s the Court using a variety of invented “tests” [rationally based, compelling state interest, intermediate scrutiny, strict scrutiny, etc.], effectively began to hand down majority opinions which were not based on the text and the documented intentions and beliefs under which our Constitution was adopted. The Court, using this new “test” process to validate its opinions, began to impose its own subjective ideas of social justice, fairness and reasonableness as the rule of law and without regard to the true intent and meaning of our Constitution.


Some of the important cases which demonstrate the Court’s assumption of legislative power by second guessing the wisdom of legislation using these newly created tests are Reed vs. Reed 404 U.S. 71 (1971), Frontiero vs Richardson 411 U.S. 677 (1973), and Craig v. Boren 429 U.S. 190 (1976).


It is also important to note that the ACLU and Ruth Bader Ginsburg, who was a volunteer for the American Civil Liberties Union in the 1970’s, were both active in these cases and assisted the court in inventing clever words and phrases in conjunction with “tests” which were designed to replace our Constitution’s meaning, and in particular the 14th Amendment, with the personal feelings of what the Constitution should mean as believed by a majority of the Court’s members.


In each of these cases the limits of our Constitution were ignored and replaced with the personal and subjective views of Justices as being the rule of law, rather than enforcing the Constitution’s actual text and legislative intent as expressed during its framing and ratification debates.


The bottom line is, for our system to work and evolve as intended by our Founders, and when judges and Justices sincerely believe our Constitution, or a legislative Act, is an affront to their personal sense of fairness, reasonableness or justice, they should express these feelings in minute detail, but go on to explain their job is limited to establishing the true meaning and intent of our Constitution, while Article V is the proper method for change. For judges and Justices to ignore these limitations and impose their personal feelings as the rule of law, is to violate a Public Trust and engage in judicial tyranny.


JWK


“If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”___ Justice Story
 
Jun 2012
41,958
15,163
Barsoom
#3
There is no constitutional basis for the three types of bases used. They are twentieth century Supreme Court creations. Substantive due process is not a constitutional concept and was invented in the twentieth century to circumvent the Constitution as well.
 
May 2018
2,750
1,932
USA
#4
https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149

ESCONDIDO, CA—Spurred by an administration he believes to be guilty of numerous transgressions, self-described American patriot Kyle Mortensen, 47, is a vehement defender of ideas he seems to think are enshrined in the U.S. Constitution and principles that brave men have fought and died for solely in his head.

Kyle Mortensen would gladly give his life to protect what he says is the Constitution's very clear stance against birth control.
"Our very way of life is under siege," said Mortensen, whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. "It's time for true Americans to stand up and protect the values that make us who we are."

According to Mortensen—an otherwise mild-mannered husband, father, and small-business owner—the most serious threat to his fanciful version of the 222-year-old Constitution is the attempt by far-left "traitors" to strip it of its religious foundation.

"Right there in the preamble, the authors make their priorities clear: 'one nation under God,'" said Mortensen, attributing to the Constitution a line from the Pledge of Allegiance, which itself did not include any reference to a deity until 1954. "Well, there's a reason they put that right at the top."

"Men like Madison and Jefferson were moved by the ideals of Christianity, and wanted the United States to reflect those values as a Christian nation," continued Mortensen, referring to the "Father of the Constitution," James Madison, considered by many historians to be an atheist, and Thomas Jefferson, an Enlightenment-era thinker who rejected the divinity of Christ and was in France at the time the document was written. "The words on the page speak for themselves."

According to sources who have read the nation's charter, the U.S. Constitution and its 27 amendments do not contain the word "God" or "Christ."

Mortensen said his admiration for the loose assemblage of vague half-notions he calls the Constitution has only grown over time. He believes that each detail he has pulled from thin air—from prohibitions on sodomy and flag-burning, to mandatory crackdowns on immigrants, to the right of citizens not to have their hard-earned income confiscated in the form of taxes—has contributed to making it the best framework for governance "since the Ten Commandments."

"And let's not forget that when the Constitution was ratified it brought freedom to every single American," Mortensen said.

Mortensen's passion for safeguarding the elaborate fantasy world in which his conception of the Constitution resides is greatly respected by his likeminded friends and relatives, many of whom have been known to repeat his unfounded assertions verbatim when angered. Still, some friends and family members remain critical.

"Dad's great, but listening to all that talk radio has put some weird ideas into his head," said daughter Samantha, a freshman at Reed College in Portland, OR. "He believes the Constitution allows the government to torture people and ban gay marriage, yet he doesn't even know that it guarantees universal health care."

Mortensen told reporters that he'll fight until the bitter end for what he roughly supposes the Constitution to be. He acknowledged, however, that it might already be too late to win the battle.

"The freedoms our Founding Fathers spilled their blood for are vanishing before our eyes," Mortensen said. "In under a year, a fascist, socialist regime has turned a proud democracy into a totalitarian state that will soon control every facet of American life."

"Don't just take my word for it," Mortensen added. "Try reading a newspaper or watching the news sometime."
 
Jun 2012
41,958
15,163
Barsoom
#5
It's a living document, it evolves, it changes with the times, that's what it really does.
The Constitution is not a living document. There is not an iota of evidence that it is. The purpose of the US's written constitution was to eliminate judicial common law creations. The concept of a living constitution was on par with democracy in the founding era.
 
Jul 2014
13,551
8,205
massachusetts
#6
The Constitution is not a living document. There is not an iota of evidence that it is. The purpose of the US's written constitution was to eliminate judicial common law creations. The concept of a living constitution was on par with democracy in the founding era.
No evidence?
Brown vs the Board of Education, Roe v Wade, Same Sex Marriage......Substantive due process
 
Likes: Clara007
Jul 2015
2,328
1,084
USA
#9
It's a living document, it evolves, it changes with the times, that's what it really does.
There people who think it shouldn't, they are wrong.

The Constitution's life is found in Article V, its amendment process, a process which involves consent of the governed and the reason and choice of the people.

JWK
 
Jun 2012
41,958
15,163
Barsoom
#10
There is nothing in the historical record by any founder regarding the Article V amendment process being created to adapt to the changing situations. The meaning and the intent of the word “amendment” only meant to correct an error. The language the Constitution was written in was legal maxim of the 18th century of potestas stricte interpretatur and in dubiis, non praesumitur pro potentia. This was manifested in the Eleventh and Twelfth Amendments, as any interpretation or amendment was to always be strictly interpreted and always against an expansion of government power.

There is no constitutional concept of a living constitution. That is a twentieth century liberal anti-American, anti-Constitution, and anti-rule of law creation. The purpose of our written Constitution is for it to not be adaptable as it was written to protect the country from human nature. There is no historical evidence that the Constitution, which was based on thousands of years of history, was meant to be adapted by future generations. That is another liberal anti-American, anti-Constitution, and anti-rule of law creation.
 
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