Judge Neil Gorsuch Says the Declaration of Independence Is Not Foundational Law

Under questioning by Ben Sasse, Republican Senator from Nebraska, Judge Neil Gorsuch said that the Constitution is the foundational law.  The Declaration of Independence is not, though it is informative of the background of the Constitution and should not be lightly discarded.  Unfortunately, Judge Gorsuch did not discuss the fact that the Declaration of Independence is the primary statement of the philosophy behind the Constitution.  He neglected to say that the Declaration of Independence is the American document that defines the legitimate purpose of government -- the protection of the rights of the individual.

It is the Declaration of Independence that makes it clear that sovereignty resides in the individual, not in government.  Government exists to serve the sovereign individual, the holder of rights.  The individual and his rights exist whether government does or not.  Government does not define individual rights.  It is the nature of man and his need to survive and flourish in life that define individual rights.  An understanding of this is absolutely necessary to make it possible for government to fulfill its legitimate purpose in protecting everyone's individual rights.

The Bill of Rights enumerated some individual rights.  Yet that same document, in the 9th Amendment, made it crystal clear that the enumeration of individual rights was incomplete and that the federal government was not "to deny or disparage the other rights retained by the people." Unfortunately, the federal courts have attributed almost no protections to individual rights under this 9th Amendment, having virtually ignored the broad scope of individual rights acknowledged in the Declaration of Independence as those of life, liberty, and the pursuit of happiness.

The 14th Amendment also recognizes the broad individual rights of citizens: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Absent the context of preexisting and preeminent individual rights, the protections of those rights by the government are bound to be haphazard at best.  More likely, the government itself will become the greatest threat to individual rights.  The fact that the Declaration of Independence is not considered a foundational document in the law drastically undermines our understanding of the purpose of government, its proper limits, and the effectiveness of the Constitution to fulfill its contract with the people to provide "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, ..."

It is very disturbing when politicians and judges prove themselves to be rudderless before their essential and only task of protecting individual rights.  There is no way that a knowledge of these individual rights is or can be spelled out by a few short documents.  The Constitution is itself a given document whose meaning is the Law of the Land.  It is not a changing or living document and it must be interpreted in accordance with its original meaning.  When and if one cannot do that, it should be amended.

What is living and evolving is our understanding of individual rights.  The Constitution literally makes it clear that we are to see to it that the government protects everyone's equal individual rights as these rights are understood in terms of man's nature and the reality in which he lives.  The use of this understanding of man's rights is not a matter of changing the meaning of the Constitution.  Its meaning was always to provide a very limited government whose purpose was the protection of individual rights.  There is no other interpretation of the Constitution which is self-consistent, rational, and legitimate.

Freedom of speech has evolved since the time of the Constitution's adoption as the Law of the Land. It still means that one has the right to say what one wants to those within hearing range, but it also now means that one has the freedom to buy a radio or a television station and say what one wants through that medium, or that one can say what one wants in a video posted to You Tube.  Similarly, property and labor rights have evolved in many ways to include new forms of contracts and new forms of intellectual property.  It has come to be recognized that domestic partnership contracts have to equally recognize the partnerships of two people of the same sex, as well as those of two people of the opposite sex.  Not to do so is a violation of the principle of the equal protection of individual rights necessary to the right to pursue one's happiness.  One can only hope that our broad right to freedom of association will one day be more recognized than it is now.  As these changes have occurred and will continue to occur in our real lives, the 9th and 14th Amendments should be constant as sources of the justification for protecting these individual rights. No change in the Constitution is needed to protect individual rights, despite their evolving nature.

To be clear:  I am not a believer in a living Constitution.  I believe that it is our understanding of individual rights that is changing.  To some degree, those individual rights are themselves evolving as the conditions of man's existence in reality change.  Most of that change is the result of man using his rational faculty to improve and control the world in which he lives.  We need judges throughout our judicial system who understand that the Constitution itself should be interpreted literally and always in such a manner as to maximize the protection of individual rights.  These same judges should be open to understanding our individual rights and prepared to expand their range.  It is not the Constitution which is the primary basis for rational law.  The primary basis is the protection of individual rights.  The Constitution is an important and critical tool to limit the powers of government and to direct its actions toward the equal protection of every citizen's many and broad individual rights.  This is the critical context for all valid constitutional law -- indeed for any valid law.

It is sadly the case that Judge Neil Gorsuch seems to defer too much to any existing law and any prior interpretation of the law whether or not they violate these principles of legitimate government.  It appears that Justice Clarence Thomas will remain the best of the Supreme Court justices.

Should Children of Illegal Aliens Born in the US be Automatic Citizens?

Robert Tracinski, who is usually a very astute thinker, has written on this subject in the Federalist.  This is a case where I believe he has used too broad a brush in making his argument in favor of the idea that literally anyone born in the U.S. is a citizen.  One may say it is a classic case of failing to understand context.

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." 14th Amendment

First, in the present context of massive illegal immigration, it appears that the US and the states are not acting as though they have jurisdiction over the illegal immigrants. So the idea that this statement implies that every person born in the US is a citizen may be questioned on this basis. It is certainly true that the children of foreign staff of embassies and consulates born in the US are not included.

More importantly, Article I, Section 8 provides Congress the power "To establish an uniform rule of Naturalization...". This means that the 14th Amendment has as its context an established uniform rule of Naturalization and assumes that all persons within the US are there legally, albeit some as visitors and some as residents not yet citizens. This being the case, the 14th Amendment confers citizenship on the children of those legally in the United States who are born in the US, provided their parents and the child are subject to the jurisdiction of the US. This certainly included the one-time slaves of the south, almost all immigrants until relatively recent times, and the people of the conquered or annexed territories such as those of Alaska, Hawaii, the Mexican War, the Oregon Territory, the Louisiana Purchase, the Western Reserve, etc.  Robert Tracinski says that the denial of citizenship to the children of illegal aliens implies its denial to both the former slaves and to all immigrants.  This is not the case at all.

What is not at all clear is that the children of illegal visitors or immigrants to the US should be considered citizens of the US. In my opinion, it is not wise policy to grant them automatic citizenship, because it encourages illegal immigration.

Of course, some will claim that I do not like immigrants because I have made this point. That is not at all so. I favor a much more welcoming legal immigration policy than the one we have now in the law. But I do believe we should have an enforced, liberal immigration policy, which the Constitution implies was needed and desirable.

I have worked hard to promote the legal immigration or visitation rights of a number of very good scientists, who are also very good people. I have also observed that most of our illegal immigrants are in fact hardworking and good people. There is a need to have such people here under legal conditions, while we exclude or imprison felons.

All of my ancestors were legal immigrants of the second half of the 1800s, some of whom were of nationalities sufficiently discriminated against that they were named as examples in the immigration law of 1866 as people not to be discriminated against.

I almost always agree with Robert Tracinski, but not in this case.  It is not at all the case that one is throwing out the Constitution if one does not believe that every child born in the United States is automatically a citizen.

14th Amendment Gives President Authority to Raise the Debt Ceiling: Another Socialist Taradiddle

Bill Clinton, Nancy Pelosi, Majority Whip Sen. Dick Durbin, Representative Peter Welch, and numerous Progressive Elitist columnists have called upon Obama to raise the debt ceiling himself using the 14th Amendment as the basis for his power to do so.  Examining this claim of presidential power by the socialist left will inform us greatly about their values and how seriously they take the Constitution.

In Article 1, Section 8, the Congress is given its powers.  It says:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States; ....

To coin Money, regulate the Value thereof, and of foreign Coin, ...

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; ....

Section 8 also goes on to describe its role in the defense of the country, including that of providing for military forces and placing a two-year appropriations limit on its doing so.

The powers of the President are given in Article 2, Section 2.  There is no mention of any power to appropriate money, to issue debt, to issue coin or bonds, or any other power pertaining to the use of the People's money.  This is not surprising given that control over money, taxes, and debt were the primary powers that the Congress was invested with for the purpose of limiting the power of the Executive.  We have to remember that Americans had just fought for their independence from a much too powerful King of England.  They had also faced too powerful governors in the colonies in most cases who ruled those colonies for the King's advantage, not the People's welfare.  The Executive under the Articles of Confederation had been nearly non-existent and was much strengthened under the Constitution, but was still subject to great distrust.  Were we as wise today, we would still view the Executive with great distrust.

The 14th Amendment was passed in 1868 to deal with issues resulting from the outcome of the Civil War.  In Section 4, it says:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.  But neither the United States or any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or the emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5 of the 14th Amendment says "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

So whatever power is granted here is granted to Congress.  There is no mention of the President.  What is more, the debt to be honored without question, was only such debt as had been authorized by law, which only Congress can do.  One can go further in understanding this amendment's requirement about the debt.  It is clear that it imposes an obligation upon Congress to pay its debts in full and without dilution.  A rational person would question repayment of a debt with a devalued currency, for instance.  Therefore, if Congress, or in our present condition, the Federal Reserve is printing money to make up the difference between tax revenues and government spending, then Congress itself is in violation of the 14th Amendment.  Any rational broad interpretation of the 14th Amendment would note that Congress is constrained in its spending to a sustainable debt.  It cannot default on the debt, but it also cannot allow the debt to rise to such heights that a rational person would question that it can be repaid in full with a fully valued coin.

As we see, it is a ludicrous taradiddle that the President can raise the debt ceiling without an act of Congress.  There is no such power in the 14th Amendment.  This is why even Obama has been disinclined to claim this power.  Even though he dislikes the Constitution and holds it in low regard, even he dares not traduce it is such a blatant manner.  Not only would he have to assert a power he clearly does not have, but he would also have to violate multiple acts of Congress, duly passed.  First, he would have to break the law setting the current debt ceiling, as Congress has been doing since 1917.  Second, he would have to violate the Antideficiency Act which states that the President or any government official must have an appropriation from Congress before he can authorize payments.  It could not be more obvious that the power of the purse belongs to Congress, not the President.

This being such an open and shut case, it is very revealing that so many of the top leadership of the Democrat Party are so eager to subvert the Constitution and support such an egregious taradiddle as the claim that the 14th Amendment gives their great socialist leader the power to raise the debt ceiling by himself.  This is an attempt to claim dictatorial powers.  If Republicans had made such a claim when the Democrats controlled one of the houses of the Congress, you can be certain they would have been screaming in opposition.  It is way beyond time for the American People to understand that their dominant party is one eager to subvert the Constitution and thereby the control the people exercise by choosing their representatives to the Congress.  There is an eagerness for dictatorship, so long as the dictator is a Democrat Socialist.  This is a predilection to be feared and against which we must stand in firmest opposition.

taradiddle: 1) a trivial or childish lie, a fib, or 2) pretentious nonsense.

Equal Rights in Domestic Partnerships

Robert A. Levy, Chairman of the Cato Institute, and John D. Podesta, President of the Center for American Progress, wrote an interesting article for the 8 June 2010 Washington Post called Marriage Equality for All Couples.  They noted that the 1967 case of Loving v. Virginia, ended the ban on interracial marriage in the 16 states with laws banning it at the time.  The Supreme Court unanimously ruled that "marriage is one of the 'basic civil rights of man.'"  This decision was based on the 14th Amendment, ratified in 1868.  Sadly, it took 99 years for this ruling to finally be made.  At the time of that decision, 74% of Americans disapproved of interracial marriages.  Twenty years ago, only 6.8% of newly married couples said they married outside their race or ethnicity.  That number is now 14.6% according to a recent Pew Research Center study.  Clearly, the earlier prejudice against interracial marriages has subsided and more and more Americans are claiming their equal right to marry, whatever their racial mix may be.

The right of people to marry who are not heterosexual has not yet been given a basis in the federal courts.  In 2003, the American opinion was that only 37% supported same-sex marriages.  A February Washington Post poll found that 47% of Americans now support same-sex marriages.  65% of those ages 18 to 29 support same-sex marriages, so the trend will continue in the direction of increasing support.  Robert Levy and John Podesta are the chairmen of the advisory board of the American Foundation for Equal Rights, which is supporting the case of Perry v. Schwarzenegger.  This case is aiming to have California's Proposition 8 outlawing same-sex marriages declared a violation of the 14th Amendment and is now before the federal district court in California.  The case is likely to be appealed to the Supreme Court.  It ought to win the freedom for all couples to enter into equal marriages.

I have long made it clear that government should not be claiming to play a role in marriage at all.  For many, marriage is a spiritual union and I fully understand that concept even though it is not the case that I believe in a god.  There is good reason to reserve the term marriage to meaning a spiritual union and allowing people to control that spiritual content in their marriages without any presumption on the part of government that it has anything to say about that spiritual content.  Those who are religious or who have spiritual values which are not religious are best served by adopting a more appropriate term for the contract that government offers to couples.  It would be better if this were universally called a domestic partnership contract or agreement.  All of the issues which involve government are better described as contractual in nature.  Recognizing this, provides a separation of church and state in marriages/domestic partnerships which would help to diminish the passion of the argument from religious quarters against equal rights in domestic partnership contracts.

As I have written many times also, domestic partnership agreements ought to be a parallel to small business partnerships in that government does not dictate the sex or number of partners.  Two men, or two women, or two men and two women, or any other combination of several people ought to be free to enter into a legal domestic partnership contract.  Joint property, joint responsibility for raising children, the sharing of income, and critical medical decisions and support could readily all be incorporated into such domestic partnership agreements.

Very likely, most families would still be built around one father and one mother, but the huge number of divorces and resulting serial marriages are clear evidence that one-man-one-woman marriages do not work for large numbers of people.  Sometimes the failure is largely the result of two people becoming bored with one another or of one simply yearning for some change of pace.  Sometimes, the couple simply do not always share the same cycle of need for sex.  Sometimes, the strains of earning income, cleaning house, purchasing food and clothes, maintaining the house and cars, agreeing on a common vacation, and raising the children are simply too much for two people.  Some people would do better in larger domestic partnerships in which tasks are spread over more specialists or where they can be varied over time.  With most public schools having severe shortcomings, many such extended family groups would be able to have a member or two specialize in home-schooling the children, while a sufficient number of others remain to bring home the bacon.  One member might be particularly good in managing the family investments, while another is great in playing with the kids and caring for the yard.  One may love to cook, while another loves to work on the cars and keep them running.  Another may like purchasing the groceries, the furniture, and the clothes for the children.

Of course, in many such cases, family members may have the option for having a sexual life enriched by more than one sexual partner.  Sex is one of man's greatest pleasures in life.  It is very important to many people that they are able to optimally enjoy this pleasure.  There is no valid ethical principle that says that it is immoral for a man or a woman to have more than one sexual partner in any period of his or her life.  The ethical issue is whether the person one chooses to have sex with is a person of good character who is of great interest to and highly valued by the chooser.  If someone is fortunate enough to find more than one such person with whom they can form a more intimate bond with shared life-affirming sexual pleasures, people of good will ought to be ready to simply wish them the best.  This is true whether the individuals in the serious and sincere sexual relationship are of different sexes or the same sex.

A knowledge of history makes it very clear that while some people may be entirely heterosexual, very many people are bisexual or homosexual.  When societies are not burdened by severe heterosexual bigotry, it is clear that many people are happy to give outlet to their bisexual or homosexual desires and choose to pursue their happiness in that way.  In our present time, the video market in erotic movies and the rich offering of sexual images and discussions offered on the Internet, make it clear that sex is both of great interest to many people and that their interests are highly varied.  These interests, when given anonymous expression, do not conform to the publicly affirmed principles dominant in our society.  It is clear that many sexual interests are being suppressed, some for good reason, but many for no more reason than traditional prejudice.  It is no one's right to interfere with the exploration, development, and expression of another's optimal sexuality, so long as only consenting adults are involved.

We are all complex and highly differentiated individuals and one of the great expressions of that is in our sexuality.  To suppress the sexual development and expression of others is to attack the rights of the individual in a very basic and fundamental way.  This is an attempt to deny the nature of man and as such it is not consistent with a rational understanding of man and reality.  Let us hope that a step in the direction of our sexual liberation will be made with a Supreme Court decision that same-sex marriage must be allowed because all people have an equal right to pursue their happiness in domestic partnerships.

Timothy Sandefur - Revive "Privileges or Immunities"

Timothy Sandefur, a principal attorney at the Pacific Legal Foundation and author of The Right to Earn A Living to be published by the Cato Institute, wrote an article in the National Law Journal of 1 March 2010 with the title Revive "Privileges or Immunities."  First I will quote him on the history of this extremely fundamental and critical constitutional issue of our sovereign individual rights:

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the "privileges or immunities" of citizens, or taking anyone's life, liberty or property without "due process of law," or depriving people of the "equal protection of the laws." But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England's highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or "privileges and immunities" — in the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment's language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were "left to the State governments for security and protection."

 Or, at least as likely as history has shown us, the state and local governments will choose to violate our traditional rights, despite the fact that human life requires us to earn a living and we should be able to expect that those governments which are legitimate would act to preserve and protect that right and all other rights we hold as sovereign individuals.  Sandefur continues:

The Court later backed away from the extreme states' rights position it took in Slaughterhouse. Relying on the 14th Amendment's due process and equal protection clauses instead, it built the "incorporation" doctrine that requires states to respect the Bill of Rights. But although these clauses bar states from violating some freedoms or discriminating against –citizens in certain ways, states remain free to intrude on the rights of entrepreneurs and property owners thanks to the "rational basis" doctrine that the Court devised in the 1930s. That doctrine holds that certain rights — like freedom of speech or religion — are accorded strong judicial protection, but other rights, including the right to earn a living, receive almost none. Thus bureaucrats have nearly free rein to impose restrictions at will on a person's economic freedom, even when those restrictions have no realistic connection to protecting public safety.

Sandefur hopes that the McDonald v. Chicago right to bear arms case will induce the Supreme Court to revive the privileges and immunities clause of the 14th Amendment.  The failure of the Supreme Court in the past to honor this provision of our Constitution has long awaited correction.  There is no doubt what the intent of this provision was when it was added to the Bill of Rights.  Neither the Supreme Court nor any other part of American government have the right to ignore our individual privileges and immunities as they have long done.  The revival of this constitutional provision would have huge import for insuring our right to work for a living, which is now heavily violated by all levels of government.  Let us hope that Obama's stupid attack upon the Supreme Court during his State of the Union address, will have only served to give the Supreme Court the backbone it needs to fix this terrible neglect of the People's individual rights.  There is some indication this may be the case!