Progressing the Constitution – The Ninth Amendment Part V

Subtitle: Scotus & Morality.

Without God and religion you don’t have moral truth, you have moral opinion.1 Unfortunately, when a majority of lawyers on Scotus issue new rights-based opinions, they become binding moral truths; indeed, they are societal commandments. Unlike the Ten Commandments, Scotus’ commandments are compulsory and permanent. Well, they are permanent until a subsequent court determines otherwise. We the People never entrusted this philosophically unmoored and thoroughly political institution with the duty to police morality.

It wasn’t always this way. In a constitutional republic the moral content of law is given by the morality of the Framer or the legislator, never by the morality of a judge. A frequent task of the judge, and it is a task quite large enough for anyone’s wisdom, skill, and virtue, is to apply the Framer’s or the legislator’s morality. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power is the true morality of the jurist.

That true morality isn’t found in our genius black-robes. Where the typical citizen learns right from wrong and the natural order from his/her parents, and morality from long-recognized and readily understood Biblical passages, our Constitution apparently needs, after 230 years, a secular priestly class to discern great unrealized rights as if the Constitution was a collection of written mutterings from the Oracle of Delphi. Since there are great hidden rights and liberties in the Constitution, isn’t it time the Scotus revealed the rest of them? What gives? For instance, the 14th Amendment’s equal protection clause recognized homosexual marriage since 1868, why the 147 year delay?

Scotus hasn’t revealed all of the remaining undeclared rights and liberties because it is a political body. The decisions of political bodies relate to the here and now rather than long term good. When loud factions demand social change, Scotus and lower courts stand ready to force change on an unwilling nation.2

The law is to judges as automobiles are to mechanics. Just as auto mechanics are out of business without automobiles, so too are judges without laws. The absence of a constitutional provision means the absence of judicial review, and with it, the power to impose social justice morality. When a U.S. judge is given a set of constitutional provisions, then, as to anything not covered by those provisions, he is in the same position as the auto-less auto mechanic. He has no law to apply and is, quite properly, powerless. In the absence of law, a judge is a functionary without a function. For instance, the 14th Amendment grants Congress specific authority to enforce its provisions.3 Absent a congressional statute that recognized equal protection rights of homosexuals to marry, Scotus (Obergefell v. Hodges) usurped the authority of Congress in the 14th, and the people in the 9th Amendment.

Adhering to this philosophy is essential if courts are to govern according to the rule of law rather than the whims of politics and personal morality. Judge Robert Bork offered an analogy: Suppose that the United States, like the United Kingdom, had no written constitution, and, therefore, no law to apply to strike down acts of the legislature. The U.S. judge, like the U.K. judge, could never properly invalidate a statute or an official action as unconstitutional. The very concept of unconstitutionally would be meaningless.

What qualifies Scotus to determine what learned philosophers cannot agree upon and the people have not declared? Where the Constitution and Congressional statutes are silent, federal courts do not have jurisdiction. It is as simple as that. And no Constitutional provision empowered federal judges to fabricate rights-based morality.

Where judges need standards to apply in the form of law given by the sovereign people or their representatives, society need not rely on judicially dictated moral standards. When the people of California, through both statute and constitutional amendment, declared the great Natural Law axiom of marriage as the union of a man and a woman, they did not do so capriciously. From the Ninth Amendment, federal courts were duty-bound to defend, and neither deny nor disparage, the people of California. Despite the multitude of incoherent and conflicting court decisions these past seventy years, faith-based morality cherished by the people will always be the basis of liberty and the law.

Our Framers provided, in Article V, the means to go over the heads of Congress, the President, and the Judiciary. It is long past time to reclaim what is ours.

1. Dennis Prager, Passim.

2. In Lawrence v. Texas (2003), which enshrined sodomy as a 14th Amendment due process right, Associate Justice Anthony Kennedy declared, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” Fellow Associate Judge Antonin Scalia famously mocked Kennedy’s “sweet mystery of life” blather as the “passage that ate the rule of law.”

3. The 13th, 14th, and 15th Amendments close with lodging enforcement authority in Congress. “Congress shall have power to enforce,” (this article, the provisions of this article) by appropriate legislation. Similar wording is found in the 16th, 18th, 19th, 23rd, 24th and 26th Amendments. Such was the post-Civil War change in the federal/state relationship.

General Reference: Barnett, R. E. (1993). The Rights Retained by the People – The History and Meaning of the Ninth Amendment Volume II. Fairfax, VA: George Mason University Press.

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