DESTROYING THE REPUBLIC
MichaelConnelly.Jigsy.com
In
the past several weeks the various branches of the
Federal government have virtually destroyed the very
fabric of our Constitutional Republic. Obama has
continued with his efforts to dismantle our economy
and the Constitution with more illegal and
unconstitutional Federal agency regulations and with
the promise of more Executive orders aimed at
gutting the Bill of Rights.
The
Republican controlled Congress did its part by
passing mostly secret legislation that apparently
gives Obama the right to enter into International
treaties and send them to Congress for a straight up
or down majority vote, with no amendments allowed.
This action totally ignores the provisions of
Article II, Section 2 of the Constitution that
requires that all treaties entered into by the
President be ratified by a two thirds majority of
the United States Senate.
Now
we have two decisions by the Supreme Court that have
trashed the Constitution by once again giving rubber
stamp approval to the entirely unconstitutional
Obamacare legislation by essentially rewriting the
law. Then it ignores the Tenth Amendment to the
Constitution that states: “The powers not delegated
to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the
States respectively, or to the people.”
The
fact is that the word marriage does not appear
anywhere in the Constitution and certainly not in
the Fourteenth Amendment. The laws concerning
marriage are therefore entirely in the hands of the
states. Yet, five unelected SCOTUS justices have
placed their own political agenda above the
Constitution and created a new Federal law mandating
the acceptance of gay marriage by all 50 states.
The
effect is expertly summed up by two of the country’s
outstanding Constitutional attorneys: William Olson
and Herb Titus. Both have been working with the
United States Justice Foundation on various projects
for years and the article printed below is the last
of 14 articles prepared for the USJF by some of the
finest legal minds in the country. All can be viewed
on our website at
www.usjf.net.
We
intend to be in the forefront of resistance to this
declaration of a dictatorship in our country.
Building the Resistance to Same-Sex Marriage
(fourteenth
in a series of articles)
Obergefell
v. Hodges:
Illegitimate, Unlawful, and a Fraud on the
American People
by
Herbert W. Titus and William J. Olson;
June 26, 2015
There
is simply no other way to say it.
The
Supreme Court’s decision today redefining marriage
to include couples of the same sex is wholly
illegitimate and unlawful.
A nullity.
Worthy only to be disobeyed.
Anyone who says otherwise -- that the rule of law
requires recognition of same-sex marriage -- is
committing a fraud.
And any State official -- like Governor
Robert Bentley of Alabama -- who says that his oath
of office requires unconditional obedience to the
Supreme Court’s mandate to issue same-sex couples
licenses to marry is mistaking his oath to the
Constitution as if it were an oath of absolute
obedience to five justices who happen to be sitting
on the nation’s highest court.
As
Chief Justice Roberts in dissent has described the
action taken today:
“Five lawyers have closed debate and enacted their
own vision of marriage as a matter of constitutional
law.
Stealing this issue from the people ....”
And
just who are these lawyers?
Justice Scalia reminds us that they are all
educated at either Harvard or Yale, from the east-
and west- coasts, not from the vast middle of the
country, and not a single one an evangelical
Christian or a Protestant, and then observes:
“The
strikingly unrepresentative character of the body
voting on today’s upheaval would be irrelevant if
they were functioning as judges, answering the legal
question whether the American people had ever
ratified a constitutional provision that was
understood to proscribe the traditional definition
of marriage.”
Indeed, from the outset of his bare majority
decision, Justice Kennedy did not even act like a
judge.
Rather, he wrote as if he were an existentialist
philosopher seeking the meaning of life, as if the
“liberty” protected in the Constitution was a
personal quest “to define and express [one’s
personal] identity.”
But
the Constitution is not some philosophical work
written by Jean Paul Sartre.
Rather, it is a political and legal document
designed by America’s founders to secure the
unchanging God-given rights to life, liberty, and
property which are deeply rooted in the 18th
century soil of the nation.
Justice Kennedy showed no regard for these
fixed principles, opting for an evolutionary
approach to law -- asserting that the existential
definition of marriage changes with changing times.
However, the very purpose of our Constitution is, as
Chief Justice John Marshall wrote in Marbury
v. Madison, to make “permanent” those
principles that the people desired.
And, so that those principles would not be
“mistaken or forgotten,” the people committed them
to writing.
Thus, Marshall wrote “it is the province and
duty for the courts to say what the law is,” not to
make it up as we go along.
As
today’s dissenting Chief Justice observed, “[t]hose
who founded our country would not recognize the
majority’s conception of the judicial role”:
“They after all risked their lives and fortunes for
the precious right to govern themselves.
They would have never imagined yielding that
right on a social policy to unaccountable and
unelected judges.
And they certainly would not have been
satisfied by a system of empowering judges to
override policy judgments so long as they do so
after ‘a quite extensive discussion.’”
And,
as the capstone of his dissent, the Chief Justice
concluded:
“the Constitution.
It had nothing to do with it.”
In those nine simple words, Chief Justice
Roberts explained why this decision of the Court is
not law.
If the Constitution had nothing to do with it, the
Court had no jurisdiction to issue it.
It is, therefore, a nullity.
In
the words of Justice Felix Frankfurter, a brilliant
jurist who understood the dangers of hubris on the
highest court in the land -- may Obergefell
v. Hodges prove to be a “derelict on the
waters of the law.”
And it will be -- but only if the American
people rise up and resist this gross perversion of
the rule of law.
Approximately one month ago, the U.S. Justice
Foundation began to organize the writing and
publication of a series of articles in a series
entitled “Building the Resistance to Same-Sex
Marriage.”
This project was undertaken in the hope that
the Supreme Court would not recklessly decide the
same-sex marriage case, but nonetheless, we prepared
for the worst, and sadly, the Supreme Court has
disappointed us again.
Hopefully over the coming weeks and months,
state and local government officials and the people
at large will be able to draw from these articles
justification and techniques to resist the Supreme
Court’s lawless decision.
In
Article II, we established that the Fourteenth
Amendment in no way addressed the issue of same-sex
marriage.
In
Article III, Robert Reilly explained how poorly
these cases have been litigated by government
lawyers supposedly defending same-sex marriage.
In
Article IV, Pastor James Taylor explained the
biblical and moral basis for traditional marriage.
In
Article V, Houston attorney J. Mark Brewer
anticipated how courts will manipulate today’s
rulings to penalize those in business and the
professions who embrace biblical marriage.
In
Article VI, former Congressman John Hostettler
explained that if a soldier has the duty to disobey
an unlawful order, how could a state official not
have that same duty?
In
Article VII, former federal magistrate Joe
Miller discussed why it would be a violation of
federal law and judicial ethics for Justices
Ginsburg and Kagan to participate in the decision,
yet both did so today.
In
Article VIII, Pastor Matthew Trewhella provided
a historical context for Christian resistance by
lower government officials to illegal actions by
higher government officials, known as “The Doctrine
of the Lesser Magistrate.”
In
Article IX, we discussed the apparent efforts of
the Supreme Court to bury the motion for recusal
filed by the Foundation for Moral Law so that
Justices Ginsburg and Kagan could more easily
disregard their duty.
In
Article X, constitutional attorney Edwin Vieira
explained how decisions like today’s decision
violate the Constitution’s “good behavior” standard,
leaving them susceptible to removal.
In
Article XI, former U.S. attorney Tom Ashcraft
laid out the process by which Congress can limit the
jurisdiction of federal courts, using the power
Congress was expressly given in the U.S.
Constitution.
In
Article XII, Senior Virginia Delegate Robert G.
Marshall discussed how Congress could immediately
use the Appropriations Power to prevent
implementation of an unlawful decision such as that
issued today.
And lastly, in
Article XIII, former Oklahoma Representative
Charles Key described the responsibility and duty of
every citizen, when serving on a jury, to decide
both the facts and the law in every case, known as
jury nullification.
This
series of articles has demonstrated that a Supreme
Court decision mandating same-sex marriage would be
illegitimate.
As Blackstone said, it would not just be bad
law; it would be no law at all.
That decision has now transpired.
These articles also demonstrate that the
American people and our elected officials have many
ways to resist the unconstitutional decision of the
Court.
The question now is, will our political leaders
abandon the true Constitution to embrace the
decision of the Court?
In
the coming days we will continue to be releasing
articles further discussing the justification for
and techniques that can be used by Congress, state
officials, and the American people to resist today’s
unlawful decision.
We urge supporters of traditional marriage to
view today’s loss as a setback, but by no means a
final decision of anything.
The battle continues.
Herbert W. Titus taught Constitutional Law for 26
years, and concluded his academic career as the
Founding Dean of Regent Law School.
William J. Olson served in three positions in
the Reagan Administration.
Together they have filed over 80 briefs in
the U.S. Supreme Court, and dozens more in lower
courts, addressing important public policy issues.
They now practice law together at
William J.
Olson, P.C.
They can be reached at
traditionalmarriage@lawandfreedom.com or
twitter.com/Olsonlaw.
This
article is part of a series on “Building Resistance
to Same-Sex Marriage.”
Please support this important work with a
contribution to the
U.S. Justice Foundation.
Permission is freely granted to publish,
copy, reproduce, distribute, or excerpt from this
article for any purpose.
Michael
Connelly