One Nation Under Judges: Part 5 - TribPapers

One Nation Under Judges: Part 5

Photo by Nathan Dumlao.

AshevilleTearing apart the fabric of America, case by case

Undermining religious beliefs

Part of the First Amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

It seems simple enough. Our founders did not want the federal government to establish a state religion, and they wanted to be sure that any citizen could worship in freedom wherever and whenever he or she saw fit. Notice that this is in the very first amendment.

However, in 1947, the Court in Everson v. Board of Education re-wrote this Amendment by incorrectly referencing a letter that Thomas Jefferson wrote to the Danbury Baptists Jefferson’s phrase that there should be a “wall of separation” between church and state. Jefferson’s meaning, of course, was that the state should not establish a religion.

However, the courts decided that the First Amendment means that instead of citizens having the right to freedom “of” religion, they have the right to freedom “from” religion. In Lee v. Wiseman in 1992, the Court inaugurated its “coercion test”, which promulgated a new nonexistent constitutional “right” not to be offended and not to feel uncomfortable by having to listen to religious expression in a public place.

The Court has hopelessly twisted the meaning of this part of the First Amendment into a number of absurd judicial outcomes, leaving a great deal of confusion in their wake.

(To explore the subject in more detail, check Barry Krusch’s Web site,

Right to privacy

It takes a great deal of research in the Constitution to find the “right to privacy” simply because it does not exist and is nowhere to be found. Yet it was the Court’s underpinning of the 1961 decision in Poe v. Ullman that led to the Griswold v. Connecticut decision in which the “right to privacy” became constitutional law by fiat. In Justice Douglas’ ruling, he wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Out of this emission from a penumbra was born the “right to privacy.” Pretzels became the law.

The founders quite obviously proposed no specific rights to privacy because criminal acts such as murder, rape, incest, brutality, and other evils could be committed in privacy.

In 1973, in its most notorious use of this phrase, in Roe v. Wade, Justice Blackmun felt that regardless of where the “right to privacy” comes from, it includes the right to abortion. He declared strongly that the unborn baby was not a “person,” which meant, in effect, that it was just a piece of property. (Much like slaves used to be.) When life begins was never an issue and was not considered. Unlike wetlands, endangered species, or old growth trees, the mother could destroy the unborn baby at will.

The court in general has a horrible record in other similar cases. In 1856, it not only upheld slavery, but it imposed it on the free territories, and in the mid 1890’s, it dug out “separate but equal” from the Constitution.

Marriage defined

The simplest and oldest concept of marriage is that it is when a man and a woman become husband and wife, so that they might become father and mother.

It takes a man and a woman. A man who is “gay” has the right to “marry” a woman who is a lesbian or who is heterosexual and vice versa. No rights have been threatened. More than a century ago, the U.S. Supreme Court spoke of the “union for life of one man and one woman in the holy estate of matrimony.” Murphy v. Ramsey, 114 U.S. 15, 45(1985).

However, the Court has set the stage to try to “redefine” marriage to include unions of two men or two women, just for starters. (Instead, unions of two men should simply be called “gaymiages” and those of two women ‘lesbiages’ or some other definitive term.)

In Lawrence v. Texas (2003), in response to an attorney attempting to justify the Texas anti-sodomy statute, Justice Breyer exclaimed, “You’ve not given a rational basis except to repeat the word morality,” as if morality has no basis in law. What is happening is that the court is rapidly abandoning the moral foundations that underpin our Constitution and is instead writing a new constitution in their own elite image.

As a direct result of an outcry from the people, Congress is attempting to reign in the judges in this regard. In July 2004, Rep. John Hostettler of Indiana sponsored the Marriage Protection Act, which would strip all jurisdiction from federal courts (in accordance with Article III, section 2) in deciding the constitutionality of the Defense of Marriage Act. The bill passed the House, but as of now the issue is dormant.

Diversity and reverse-racism

In the 2003 case of Gutter v. Bollinger, Barbara Gutter had been turned down for law school even though she had a 3.8 grade point average and a score of 161 out of 180 on the Law School Admissions test. She sued the school, saying she was turned down because she was white.

In upholding the school, Supreme Court Justice Sandra Day O’Connor stated that “… student body diversity is a compelling state interest that can justify the use of race in university admissions.” Attaining a diverse student body is at the heart of the law school’s proper institutional mission. ”

However, there is nothing in the Constitution about diversity, admissions tests, and other pretzel-like minder-binders designed to get around the Constitution’s clear prohibition against racial discrimination. It is not the role of the Court to design social policy.

Re-engineering citizenship

Article I, Section 8 of the Constitution says that Congress shall have the power “to establish a uniform rule of naturalization…” One would think that this was clear enough. But not to the Supreme Court.

The Court has put its nose in this arena and made abusive decisions as to how immigrants enter America, how they remain here, whether illegal immigrants can have monetary benefits that the states and Congress wanted to reserve for US citizens, and whether or not they are entitled to free schooling and a host of other social benefits. They have even overruled laws and stated that non-citizens can seek tuition assistance, hold civil service jobs, and practice law.

In 1976, the Court ruled in Hampton v Mow Sun Wong that citizenship was an unconstitutional requirement for holding a government job. In 1982, in Plyler v. Doe, the Court ruled that illegal Texas immigrants were entitled to a free public school education, and in 1977, in Nyquist v. Mauclet, the Court ruled that it was not constitutional for New York to require resident aliens to at least apply for U.S. citizenship before becoming eligible for financial aid for education.

The Court has stripped away any distinctions between citizens and legal aliens and those that are here illegally. In doing so, it has written laws and set policies that the Constitution clearly designated for the Congress. This is clearly not constitutional and is indeed arrogantly dangerous.

Editor’s Note: One Nation Under Judges series concludes in our next issue, number 34.