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Scriptures to Vote by: Voting Christian in a Secular World

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Compiled by Paul A. Hughes, M.Div

Note: This collection of scriptures was first published during the 1992 presidential election.  A few additions have been made.  If only these warnings from Scripture had been more heeded back then, and since, by Christians of all types who decided to vote their own preference instead of God’s!  Think, in particular, what better appointments would have been made to the Supreme Court, had truly Christian presidents and other leaders been elected.

As another crucial election approaches, it is important to emphasize the need for Christians to vote according to their Christian convictions.

Some Christians think it is somehow “unspiritual” to participate in molding and influencing our nation through politics.  Others have bought the secular line that Christians should keep their religion separate from their politics.

However, it is not only the right but the solemn responsibility of all Christians to exploit every means to influence the world, including electing men of truth, justice, and character to their government, calling all their leaders to accountability, and punishing those who violate the public trust.

Now I cannot tell anyone else for whom to vote [though perhaps I ought to have done so, in retrospect], but I would like to offer a selection of scriptures we should all ponder before we vote.  These scriptures speak for themselves [or so I had hoped].

Seek the Nation’s Welfare

“Seek the peace of the city to which I have caused you to be carried away captives, and pray unto the Lord for it; for in its peace shall ye have peace” (Jeremiah 29:7).

“Moreover as for me, God forbid that I should sin against the LORD in ceasing to pray for you: but I will teach you the good and the right way” (1 Samuel 12:23).

“I exhort, therefore, first of all, that supplications, prayers, intercessions, and giving of thanks be made for all men; for kings, and for all that are in authority; that we may lead a quiet and peaceable life in all godliness and honesty” (1 Timothy 2:1-2).

Seek Freedom of Worship

“Moses said, Behold, I go out from thee, and I will entreat the LORD. . . but let not Pharaoh deal deceitfully any more in not letting the people go to sacrifice to the LORD” (Exodus 8:29).

“For we were bondmen; yet our God hath not forsaken us in our bondage, but hath extended mercy unto us in the sight of the kings of Persia, to give us a reviving, to set up the house of our God, and to repair the desolations thereof, and to give us a wall in Judah and in Jerusalem” (Ezra 9:9).

“Finally, brethren, pray for us, that the word of the Lord may have free course, and be glorified, even as it is with you; and that we may be delivered from unreasonable and wicked men; for not all have faith” (2 Thessalonians 3:1).

“Withal praying also for us, that God would open unto us a door of utterance, to speak the mystery of Christ, for which I am also in bonds” (Colossians 4:3).

The World is Ignorant of God’s Truth

“The god of this world hath blinded the minds of them who believe not, lest the light of the glorious gospel of Christ, who is the image of God, should shine unto them” (2 Corinthians 4:4).

“We wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places” (Ephesians 6:12).

“Be not conformed to this world, but be ye transformed by the renewing of your mind, that ye may prove what is that good, and acceptable, and perfect will of God” (Romans 12:2).

Choose God, Not Self-Interest

“No man can serve two masters . . . . Ye cannot serve God and mammon (i.e., money)” (Matthew 6:24).

“If it seem evil unto you to serve the Lord, choose you this day whom ye will serve, whether the gods which your fathers served . . . or the gods of the Amorites, in whose land ye dwell; but as for me and my house, we will serve the Lord” (Joshua 24:15).

“See I have set before thee this day life and good, and death and evil. . . . I have set before you life and death, blessing and cursing; therefore, choose life, that both thou and thy seed may live” (Deuteronomy 30:15, 19).

“Seek not what ye shall eat, or what ye shall drink, neither be ye of doubtful mind. For all these things do the nations of the world seek after: and your Father knoweth that ye have need of these things. But rather seek ye the kingdom of God; and all these things shall be added unto you” (Luke 12:29-31).

“And they overcame him by the blood of the Lamb, and by the word of their testimony; and they loved not their lives unto the death” (Revelation 12:11).

Declare a Public Testimony

“Ye shall be brought before governors and kings for my sake, for a testimony against them and the Gentiles” (Matthew 10:18).

“This gospel of the kingdom shall be preached in all the world for a witness unto all nations; and then shall the end come” (Matthew 24:14).

“For he mightily convinced the Jews, and that publicly, showing by the scriptures that Jesus was Christ” (Acts 18:28).

“For a long time, then, they abode there, speaking boldly in the Lord, who gave testimony unto the word of his grace, and granted signs and wonders to be done by their hands” (Acts 14:3).

“Preach the word; be instant in season, out of season; reprove, rebuke, exhort with all longsuffering and doctrine” (2 Timothy 4:2).

“And now, Lord, behold their threatenings: and grant unto thy servants, that with all boldness they may speak thy word . . . And when they had prayed, the place was shaken where they were assembled together; and they were all filled with the Holy Ghost, and they spake the word of God with boldness” (Acts 4:29, 31).

“And the word of the Lord was published throughout all the region” (Acts 13:49).

Do Not Aid Sinners in Their Cause

“Shouldest thou help the ungodly, and love them who hate the Lord? Therefore, there is wrath upon thee from before the Lord” (2 Chronicles 19:2).

“If there come any unto you, and bring not this doctrine, receive him not into your house, neither bid him God speed: For he that biddeth him God speed is partaker of his evil deeds” (2 John 1:10-11).

“Know ye not that the friendship of the world is enmity with God? Whosoever, therefore, will be a friend of the world is the enemy of God” (James 4:4).

“He that is not with me is against me, and he that gathereth not with me scattereth” (Luke 11:23).

Stand Against Evil

“Take heed to yourselves: If thy brother trespass against thee, rebuke him; and if he repents, forgive him” (Luke 17:3).

“Them that sin, rebuke before all, that others also may fear” (1 Timothy 5:20).

“This witness is true. Wherefore rebuke them sharply, that they may be sound in the faith” (Titus 1:13).

“These things speak, and exhort, and rebuke with all authority. Let no man despise thee” (Titus 2:15).

Beware of Deceivers

“Let no man deceive you with vain words; for because of these things cometh the wrath of God upon the children of disobedience” (Ephesians 5:6, see also 4:14).

“Beware of false prophets, who come to you in sheep’s clothing, but inwardly they are ravening wolves” (Matthew 7:15).

“For false Christs and false prophets shall rise, and shall shew signs and wonders, to seduce, if it were possible, even the elect” (Mark 13:22).

“Beloved, believe not every spirit, but try the spirits whether they are of God: because many false prophets are gone out into the world” (1 John 4:1).

Distrust Human Counsel

“For our rejoicing is this, the testimony of our conscience, that in simplicity and godly sincerity, not with fleshly wisdom, but by the grace of God, we have had our conversation in the world, and more abundantly toward you” (2 Corinthians 1:12).

“For the wisdom of this world is foolishness with God. For it is written, He taketh the wise in their own craftiness” (1 Corinthians 3:19).

“My people have committed two evils: they have forsaken me, the fountain of living waters, and hewed out cisterns, broken cisterns, that can hold no water” (Jeremiah 2:13).

“Woe to the rebellious children, saith the lord, who take counsel, but not of me; and who cover with a covering, but not of my Spirit, that they may add sin to sin” (Isaiah 30:1).

“We looked for peace, but no good came; and for a time of health, and behold, trouble!” (Jeremiah 8:15).

“They say still unto those who despise me, The Lord hath said, Ye shall have peace; and they say unto every one that walketh after the imagination of his own heart, No evil shall come upon you” (Jeremiah 23:17, see also Ezekiel 13:10, 16).

Seek God for Guidance

“Thus saith the Lord, Stand in the ways, and see, and ask for the old paths, where is the good way, and walk in it, and ye shall find rest for your souls. But they said, We will not walk in it” (Jeremiah 6:16).

“Ye shall seek me, and find me, when ye shall search for me with all your heart” (Jeremiah 29:13).

“If my people, who are called by my name, shall humble themselves and pray, and seek my face, and turn from their wicked ways, then will I hear from heaven, and will forgive their sin, and will heal their land” (2 Chronicles 7:14).

“Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things” (Philippians 4:8).

©2015 Paul A. Hughes

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Written by biblequestion

June 27, 2015 at 6:14 PM

John Kerry’s America — Revisited

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Note:  Word has come of the death of Judge Robert Bork.  The following was written to recall the debacle which was his Supreme Court confirmation hearings, and compare the wild and unfounded accusations leveled at him by Sen. Edward Kennedy to those which could justly be leveled at then presidential candidate — now up for Obama’s Secretary of State — John Kerry.  A postscript was later added in regard to the retirement and replacement of Justice Sandra Day O’Connor.

At the Senate Supreme Court confirmation hearings for Judge Robert Bork in 1991, Senator Edward Kennedy of Massachusetts made the following alarmist statement:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, robed police could break down citizen’s doors in midnight raids, schoolchildren could not be taught about Evolution, writers and artists would be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The Bork hearings, one may recall, were made a public spectacle on broadcast television a la Watergate, and he was not confirmed by the Senate.

If Kennedy’s “vision” of the future is fair, then how might one envision the future under the leadership of John Kerry?

  • John Kerry’s America would be one in which a million or more healthy babies continue to be slaughtered each year for women’s rights, population control, and personal convenience.
  • Official discrimination favoring only select minorities will increase in the name of Affirmative Action and “Diversity.”
  • Following the lead of Sweden and other socialist countries, Christians and others who dare speak against homosexual marriage, abortion, and other approved causes will be tried for hate crimes, and religious institutions raided in the manner of the Branch Davidians in Waco, Texas.
  • Schoolchildren will continue to be taught Evolution as established fact, and the mere mention of Creationism excluded from the classroom.
  • Reforms made to the National Endowment to the Arts will be undone, and so-called artists like Annie Sprinkle will be funded by the government.
  • Supreme Court justices William Renquist, Sandra Day O’Connor, and perhaps others, not to mention other federal judges, will retire and be replaced with liberal activist judges who will continue to undermine the fabric of American society, and purge from it all Christian influence.
  • The United States would look to the United Nations for permission to defend itself, and increasingly serve in the UN’s causes at the expense of American taxpayers and American lives.
  • Finally, taxes and social spending would rise, while funding for defense and intelligence would, as Kerry’s past voting record ably demonstrates, be gutted.

John Kerry is Ted Kennedy’s choice for president. The choice in 2004 is not between personalities but two very different visions for the future of the United States of America. It is a clear moral choice. Undecided voters who continue to “waffle” between poll results must either be negligently ignorant of the facts, or totally lacking in guiding principles.

© 2004 Paul A. Hughes

Now the retirement of Sandra Day O’Connor has transpired, so we are in for a renewed skirmish in the “cultural wars.” Ted Kennedy has already declared his opposition to any non-Liberal nominee to the Supreme Court. Any nominee must brace him/herself for the same kind of rectal examination accorded Bork and Clarence Thomas.

With Thomas, there was no evidence of wrongdoing, only hearsay FBI interviews illegally “leaked” by a Democrat senator’s office. I well recall Sam Nunn and (I think) Chris Dodd (or some other partisan) telling the press that in spite of lack of evidence, they must question Thomas’s nomination “because of the seriousness of the charges. In short, Democrats have already proven that in the absence of evidence, they are willing enough to create some.

© 2005 Paul A. Hughes

Written by biblequestion

December 19, 2012 at 11:31 PM

The Most Dangerous Branch

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Blind Justice

Blind Justice

A Thumbnail History of Supreme Court Revisionism

by Paul A. Hughes

Throughout the country, public officials solemnly swear to protect and defend the Constitution of the United States.  The Constitution defines our government and protects the rights of citizens and sovereign states.

The Framers expended much less ink on the Supreme Court than any other branch of government.  The Court was expected to be, in Alexander Hamilton’s words, “the least dangerous branch.”  From the beginning, however, judges and legal philosophers have sought to reshape government in ways that they could not achieve by democratic means as prescribed by the Constitution:  legislation and amendment.  Those who gain the power of the Bench too often succumb to the temptation of oligarchy, rule by an elite by judicial fiat—making the Supreme Court, in the end, truly “the most dangerous branch.”

The following short history is hardly comprehensive, but lists pivotal Court cases and trends that have effectively changed the meaning and intent of constitutional provisions.  These items reveal the desire of revisionists to deny the letter of the Constitution, while showing preference for special interests; a disdain for precedents and the democratic process, as well as the people; tortured interpretations of provisions in order to insure desired outcomes and create new law; the erosion of state and individual rights while trumpeting new, special rights; lofty language envisioning a “living” Constitution that ignores the actual Constitution; and an expansion of raw judicial power.

This history should be sufficient to convince the reader how crucial it is to elect a president and senators who will nominate and approve justices that truly believe the law means what it says, not what it can be made to say.

Calder v. Bull (1798)

In a minority opinion, Justice Samuel Chase objected to a legislative act on the grounds that it violated the spirit, though no specific provision, of the Constitution.

Marbury v. Madison (1803)

In its decision, the Court originated the principle, and assumed the power, of judicial review of legislation, not explicit in the Constitution.  Consequently, the Court opened the door to undermining the democratic process by overruling the will of the people, as expressed by their representatives.  Judge Robert Bork called Chief Justice John Marshall’s opinion “a curious blend, an essay resting the power to invalidate statutes of Congress on the original understanding of the Constitution and yet reaching the question of that power without justification.”[i]

Fletcher v. Peck (1810)

This case stems from the infamous Yazoo Land Fraud of 1794.  Marshall in his opinion proposed that there are natural limits to legislative power, in this case regarding the seizure of property, referring to “the nature of society and of government” for justification.  Justice William Johnson supported Marshall, stating flatly that “my opinion on this point is not founded on the provision in the constitution of the United States . . . ,” but rather, “the reason and nature of things” which, he hyperbolized, “will impose laws even on the deity.”

Gibbons v. Ogden (1824)

Marshall, in his opinion, suggested that the bare fact that power to regulate commerce was vested in Congress by the Constitution was sufficient to strike down steamboat regulation in New York.  Since Congress had not indeed acted in the case, this approach would effectively insert the judicial branch in the process at will, bypassing Congress.  This insertion principle has been adopted and applied to various cases to this day.

Dred Scott v. Sandford (1857)

Chief Justice Roger Taney, backed by a pro-slavery majority, actively sought to read a right to own slaves into the Constitution.  He cited the Due Process clause of the Fifth Amendment, which states, “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.”  Ignoring the plain meaning of the text, which simply mandates a fair process before seizure, Taney created the principle of “substantive due process,” asserting a slaveholder’s inherent right to his property.  Law professor John Hart Ely called substantive due process “a contradiction in terms.”[ii] The principle was later applied to Lochner v. New York, Roe v. Wade, and other decisions.

Hepburn v. Griswold (1870)

In finding against an act of Congress to issue paper money, Chief Justice Salmon P. Chase found, following Marshall, that the act was not “consistent with the spirit of the Constitution.”  He held that paper currency, being of no inherent value, violated the restriction that “no State shall pass any law impairing the obligation of contracts” (Article I, Section 10).  He deflected criticism that the provision applied only to the states, suggesting that the Framers “intended that the spirit of this prohibition should pervade the entire body of legislation . . . .”  Chase also regarded that the spirit of the Due Process and Just Compensation clauses of the Fifth Amendment had been violated.

Loan Association v. Topeka (1874)

The Court struck down a Kansas law that allowed cities to issue public bonds to encourage private business.  In the lone dissent, Justice Nathan Clifford wrote, “Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution . . . .  Such power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.”

Davidson v. New Orleans (1877)

Justice Samuel Miller, who had lead the activist majority in Loan Association, applied the principle of substantive due process originated in Dred Scott, asserting that a fair hearing alone was insufficient to deprive a citizen of property.

Allgeyer v. Louisiana (1897)

In order to strike down a state insurance compliance law, the Court expanded “liberty” in the Due Process clause beyond “liberty of person” to “the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”  This language left the determination of what would be deemed “lawful” entirely open to future interpretation by the Court itself, in denial of the democratic legislative process of the states.

Lochner v. New York (1905)

Justice Rufus Peckham, who had written the unanimous opinion in Allgeyer v. Louisiana, also wrote the majority opinion in Lochner.  The Court struck down a statute that limited working hours for bakers, asserting an inherent right to buy and sell labor.  In his opinion, Peckham expressed consternation at the people being “at the mercy of legislative majorities.”  Most notable is Peckham’s claim of judicial police power, by which courts may strike down legislation even in the absence of specific constitutional provision.

The New Deal (1933- )

Once President Franklin Roosevelt succeeded in packing the Court with cooperative justices, the judicial branch largely ignored Tenth Amendment provisions limiting federal power.  Businesses could no longer count on due process of law, as the federal government vastly expanded regulatory activity without restraint.

United States v. Carolene Products Co. (1938)

The Court upheld legislation prohibiting interstate shipment of a certain milk product.  The crucial item in the opinion, written by Chief Justice Harlan Stone, are the words “discrete and insular minorities.”  Those words, which appear in a footnote, stem from Stone’s musings on the Fourteenth Amendment relative to Due Process, and presumably refer to certain undefined minorities not otherwise enumerated in the Constitution.  The footnote effectively opened the door to a new era of minority and special interest politics.

Skinner v. Oklahoma (1942)

Buck v. Bell (1927) had previously upheld the forced sterilization of the mentally retarded in Virginia.  Oklahoma now passed a law whereby certain classes of repeat criminals could likewise be sterilized.  Justice William O. Douglas objected that the statute made some crimes punishable by sterilization while other crimes of similar gravity were not.  Moreover, he conceived procreation to be “one of the basic civil rights of man” that was “fundamental to the very existence and survival of the race,” opposing the law on the basis of the Equal Protection clause of the Fourteenth Amendment   Robert Bork later observed that the decision created the principle of “substantive equal protection” by being “really a substantive due process case masquerading as a decision under the equal protection clause.”[iii]

The Warren Court (1953-1969)

Columbia Professor Milton Handler wrote that the Court led by Chief Justice Earl Warren was conspicuous for its “disrespect for precedent, even those of recent vintage, the needless obscurity of opinions, the discouraging lack of candor, the disdain for the fact finding of the lower courts, the tortured reading of statutes, and the seeming absence of neutrality and objectivity.”[iv]

Brown v. Board of Education of Topeka (1954)

Brown combined multiple cases that were, as Justice Warren wrote, “premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.”  Together, they challenged the Plessy v. Ferguson precedent (1896), which had established the “separate but equal” principle.  Rather than rely on the Equal Protection clause of the Fourteenth Amendment, which had never historically been understood to prohibit segregation (and consequently thought weak), Warren’s opinion was based on evidence of unequal educational opportunity for black students and a “sense of inferiority” inherent to segregation.  In retrospect, some legal experts regret that the Court did not perceive in the text of the Constitution sufficient grounds for doing the right thing, resorting instead to a decision based purely on moral conceptions.  Others, however, consider Brown the archetype of a “living” Constitution and “progressive” judicial system freed from slavish dependence on obsolete language and ideas.

Bolling v. Sharpe (1954)

A school segregation case parallel to Brown, Bolling originated in Washington, D.C.  While Brown, not truly decided on Fourteenth Amendment grounds, was presumed to have satisfied its Equal Protection provision, that amendment applied only to the states, not to the federal District of Columbia.  The Warren Court, therefore, drew upon the Due Process clause of the Fifth Amendment, which is federal, gave it substantive status, and declared it equivalent to the Equal Protection clause of the Fourteenth Amendment.  This scheme served to invent the concept of an Equal Protection component of the Due Process clause, and apply Equal Protection guarantees to all federal legislation.[v]

Griswold v. Connecticut (1965)

The State of Connecticut had on its books an 1879 statute outlawing the use of contraceptives, but no record exists that it had ever been enforced.  Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a professor at Yale School of Medicine, opened a birth control clinic in New Haven in order to initiate a test case, with the support of the American Civil Liberties Union.  The case initially resulted in a fine of $100 each.  In his majority opinion, Justice Douglas asked indignantly, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?  The very idea is repulsive to the notions of privacy surrounding the marriage relationship,” as if such action and the institution of marriage had actually been threatened.  Douglas cited “a right of privacy older than the Bill of Rights—older than our political parties, older than our school system,” describing marriage as “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.”  Lacking specific “right of privacy” and “zone of privacy” provisions in the Constitution, Douglas asserted that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” echoing resorts to “the spirit of the Constitution” in the past.

In his dissent, Justice Potter Stewart noted that “the Court refers to no less than six Amendments to the Constitution:  the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth.  But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.”  He concludes, “With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”  Justice Hugo Black, in a separate dissent, concurred:  “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals.  But there is not.”  Robert Bork has described the “right of privacy” device as “a loose canon in the law.”[vi]

Katzenbach v. Morgan (1966)

According to Article I, Section 2 of the Constitution, states are reserved the right to set voter qualifications.  Following the passage of the Voting Rights Act (1965), a literacy test for voting in New York was challenged.  The Court was in the position of having to choose between support for the Act and a provision of the Constitution.  The majority opinion, written by Justice William J. Brennan, Jr., vested in Congress the power to overrule a clear constitutional provision by citing the general Enforcement Power granted Congress in Section 5 of the Fourteenth Amendment.

United Steelworkers of America , AFL-CIO-CLC v. Weber (1979)

In direct contradiction to Griggs v. Duke Power Co. (1973), the Court found that the Civil Rights Act of 1964 allowed racial preferences.  In Chief Justice Warren Burger’s dissent, he found the majority decision “contrary to the explicit language of the [Civil Rights Act] and arrived at by means wholly incompatible with long-established principles of separation of powers.  Under the guise of statutory ‘construction,’ the Court effectively rewrites Title VII to achieve what it regards as a desirable result.  It ‘amends’ the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do.”  Justice William Rehnquist labeled the decision Orwellian, writing that “the Court rejects ‘a literal construction of § 703(a)’ in favor of newly discovered ‘legislative history,’ which leads it to a conclusion directly contrary to that compelled by the ‘uncontradicted legislative history’ unearthed in McDonald and our other prior decisions.

Eisenstadt v. Baird (1972)

Striking down a Massachusetts law that forbade sale of contraceptives to unmarried persons, the Court extended the “right of privacy” beyond the bounds described in Griswold to sexual relationships outside of marriage.  Moreover, put together, they suggest a constitutional right to sexual gratification.

Roe v. Wade (1973)

In 1970, Linda Coffee, a women’s rights advocate, and Sarah Weddington, soon to be elected a Texas state representative, sued in behalf of “Jane Roe” (Norma McCorvey) for the right to obtain a legal abortion.  Reaching far back into ancient history, and leaning heavily on the “right to privacy” created in Griswold, Justice Harry Blackmun’s majority opinion encompassed 51 pages.  In his lone dissent, Justice Rehnquist faulted the majority for violating its own rule of thumb never to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” by a sweeping removal of almost all restrictions imposed on abortion by the states.  He expressed doubt that any “right of privacy” is involved in the case.  Even the liberties guaranteed by the Constitution, he wrote, are “not guaranteed absolutely against deprivation, only against deprivation without due process of law.”  Rehnquist worried out loud that in its handling of the Due Process clause of the Fourteenth Amendment, the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.”

Judge Bork is more blunt.  He writes that “in the entire opinion there is not one line of explanation, not one sentence that qualifies as legal argument.  Nor has the Court in the sixteen years since ever provided the explanation lacking in 1973.”[vii]

Bowers v. Hardwick (1986)

A police officer discovered Hardwick engaging in homosexual sodomy in his home, punishable by law in Georgia.  The District Attorney decided not to prosecute, but Hardwick filed suit on the grounds that the law was unconstitutional and “placed him in imminent danger of arrest.”  The Eleventh Circuit Court of Appeals found that “homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.”  If upheld, the case would effectively create a “right to homosexuality.”  The Court disagreed with the Eleventh Circuit that “prior cases,” including Skinner, Griswold, and Eisenstadt, “have construed the Constitution to confer a right of privacy that extends to homosexual sodomy.”  On the contrary, the Court asserted that “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case,” and deprecated the attempt to expand the Due Process clauses of the Bill of Rights to include all kinds of consensual behavior.  A dissent by Justice Blackmun is conspicuous for resorting to the concept of a “right to be left alone,” described as “the most comprehensive of rights” by Justice Louis Brandeis in Olmstead v. United States (1928).  The Bowers decision was later overruled by Lawrence v. Texas (2003).

Texas v. Johnson (1989)

Gregory Johnson burned an American flag in downtown Dallas while a group chanted, “America, the red, white, and blue, we spit on you.”  No one was arrested for protesting, but Johnson was charged with Desecration of a Venerated Object under state law.  Five justices held that Johnson’s act was political speech protected by the First Amendment.  Justice Rehnquist’s dissent recalled at length the history of the flag, and cited a litany of federal and state laws prohibiting contemptuous treatment.  “I cannot agree,” he wrote, “that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.  He quotes Chief Justice Warren’s dissent to Street v. New York (1969):  “I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.”  In a separate dissent, Justice John Paul Stevens considered that “it cannot be true that the flag . . . is not itself worthy of protection from unnecessary desecration.

The Infiltration of Foreign Law

On the premise that the Constitution is insufficient to adapt to a complex and changing world, the liberal wing of the Supreme Court has begun to look to foreign and international legal philosophy for guidance and support.  In a dissent to the death penalty case Knight v. Florida (1999), Justice Stephen Breyer wrote, after consulting the laws of many countries, “A growing number of courts outside the United States—courts that accept or assume the lawfulness of the death penalty—have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.”  He granted that “Obviously this foreign authority does not bind us.  After all, we are interpreting a ‘Constitution for the United States of America.’”  Breyer continued, however, that “this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances.  In so doing, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment.”  He summarized that “Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a ‘decent respect to the opinions of mankind’” (which point is itself unsubstantiated).

In a speech to The American Society of International Law, Justice Ruth Bader Ginsburg said, “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions . . . is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification.  I am not a partisan of that view.  U.S. jurists honor the Framers’ intent ‘to create a more perfect Union,’ I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.”[viii] (One should note that in the preamble to the Constitution, it is properly “We the people” who act “to create a more perfect Union,” through their elected representatives and the prescribed amendment process.)  Ginsburg applied the 1994 United Nations International Convention on the Elimination of All Forms of Racial Discrimination to her concurrence to the affirmative-action lawsuit Grutter v. Bollinger (2003).

Lawrence v. Texas (2003) was a homosexual conduct case resembling Bowers v. Hardwick.  In his majority opinion, Justice Anthony Kennedy, a swing voter who occupies the seat on the Court originally intended for Robert Bork, made reference to “other authorities pointing in an opposite direction” to those guiding Bowers.  Those of foreign provenance were the 1957 Wolfenden Report advising repeal of homosexual conduct laws in England, codified in 1967; and Dudgeon v. United Kingdom (1981), based on the European Convention on Human Rights.

In Roper v. Simmons (2008), a juvenile death penalty case, Kennedy cited Article 37 of the United Nations Convention on the Rights of the Child, other international conventions, and British law.  He noted “that only seven countries other than the United States have executed juvenile offenders since 1990:  Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China,” and concluded, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . .”

Justice Antonin Scalia, in his dissent, provided a comprehensive, point-by-point repudiation of Kennedy’s opinion, especially the infusion of foreign law.  He began by proposing that “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.”  To illustrate his point, he enumerated elements of U.S. law, such as trial by jury and search and seizure protection, that he did not think his opponents would be willing to surrender; and relaxed separation of church and state, and greater restrictions on abortion, that they would never be willing to adopt.  “The Court,” he challenged, “should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions.  To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

“To the contrary,” he wrote, “they are cited to set aside the centuries-old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.  What these foreign sources ‘affirm,’ rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America.”

© 2008 Paul A. Hughes


[i] Robert H. Bork, The Tempting of America:  The Political Seduction of the Law (NY: The Free Press, 1990), p. 22.

[ii] John Hart Ely, Democracy and Distrust:  A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), p. 18.

[iii] Bork, 64.

[iv] Milton Handler, The Supreme Court and the Antitrust Laws:  A Critic’s Viewpoint, Georgia Law Review 339 (Spring 1967).

[v] See Bork, 84,182.

[vi] Bork, 97.

[vii] Bork, 112.

[viii] Ruth Bader Ginsburg, “A Decent Respect to the Opinions of [Human]kind:  The Value of a Comparative Perspective in Constitutional Adjudication,” speech to The American Society of International Law, Washington, D.C., April 1, 2005.

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April 22, 2010 at 3:51 AM