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How the Supreme Court Destroyed the Real Constitution

How the Supreme Court Destroyed the Real Constitution

Fellow Constitutionalists:

Some of you may remember that I have written a treatise on the Constitution. The books are Volumes 1-3 of The Kiss of Judice: The Constitution Betrayed—A Coroner’s Inquest & Report, together consisting of some 2100 pages of insight on the real Constitution and how it was destroyed by the United States Supreme Court.

Summary of the book

The Kiss of Judice is styled an autopsy. That is correct, I think, because it's a pathology: when and how the constitutional cancer started, how it spread slowly at first, then metastasized into a raging affliction, and when death ensued. The epidemiology of the disease traces most directly to when the "reconstituted" supreme court caved in and reversed the decisions that had impeded the New Deal's hostile takeover of the American economy. That was the Constitution's Rubicon. Freed from the chains of Constitution and the check of judicial restraint, subsequent congresses and presidents have gone on a rampage of power usurpation, churning out edicts and "programs" in a quantity and scope that would made even FDR blush. "It's a good rule of thumb", wrote the late Joseph Sobran, "that anything called a 'program' is unconstitutional." He's right for the reasons laid out in the pages of the work.

As Chief Justice John Marshall put it in Marbury v. Madison (1803), "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The main purpose of the book is to discover (or rediscover) those "forgotten limits". Then and only then will friends of the Constitution have a chance of reviving it and restoring to its original primacy as the "supreme law of the land"-as the Constitution itself commands.

Volume 1 covers: the Constitution’s Natural Rights Pedigree; its Preamble; and the (very-limited) Federal Legislative Powers and Federal Executive Powers it grants.

Volume 2 covers: Federal Judicial Powers; the Bill of Rights; Individual Rights--the 9th Amendment; State Powers; Powers Denied to States; and Separation of Powers.

Volume 3 covers: The General Welfare Clause--Mutation of Restraint into Plenary Power; Federal Commerce Power—Leviathan's Dragnet; Necessary And Proper--Any Expedient Will Do; Delegation Run Riot—
Exorcism of Separation of Powers and Ordination of Presidential Lawmaking; Rambo Power Rampant; The 14th Amendment Amended--Voodoo Jurisdiction; and R.I.P. Federalism.

The volumes are styled, The Kiss of Judice: The Constitution Betrayed—A Coroner’s Inquest & Report. “Judice”, Latin, a pun, means “pertaining to judges”; thus denoting the judicial, Judas-like betrayal of the Constitution. “Coroner’s Inquest” denotes that the work is a study into the death of the Constitution. Your author is the Coroner. He proceeds in the Inquest with the aid of his Coroner’s Jury: Jefferson, Madison, Hamilton, Story, Locke, and Blackstone.

The first two volumes are a dialogue between the Coroner and his jury on the various parts of the Constitution covered. The jury members answer the Coroner’s questions, for the most part in their own words, drawn from a variety of their written works. Occasionally the Coroner puts words in their mouths; those “inventions” are shown in brackets in the jurors’ answers.

The third volume is an analysis of various Supreme Court rulings guided by the constitutional principles identified in the first two volumes.

The works are novel, because, to the author’s knowledge, they are the only “Constitutional Law” textbooks that collect the wisdom of the framers as the Constitution’s only authoritative sources; they do not, as most Constitutional Law texts do, emphasize court cases as constitutional authority, for more often than not, the courts have only warped the Constitution.

In a broader sense, though, the works are not novel, for they are only an arrangement of the work already done by the jurors. The author is pleased to say that the works, by and large, are not original thought. Their “beauty” is that they only revive long-forgotten constitutional “discoveries” as set in the words of the main jurors and some others within “interviewed”.

The volumes of the treatise may be downloaded for $9.99 apiece @

Vol. 1: https://play.google.com/store/books/details?id=v2ER-K4YhPAC
Vol. 2: https://play.google.com/store/books/details?id=HqQl_r0JLRcC
Vol. 3: https://play.google.com/store/books/details?id=LTwXRPWUZfkC

Printed versions are also available for $33 apiece @

1. http://www.amazon.com/Kiss-Judice-Constitution-Betrayed-Coro...

2. http://www.amazon.com/The-Kiss-Judice-Constitution-Betrayed/... )

3. http://www.amazon.com/Kiss-Judice-Constitution-Betrayed-Coro...

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Looks interesting ...

... thanks for posting!

Bump for

later attention :)

Wow! This is quite the study

I always thought of it as how the Courts constitutionally destroyed the constitution.

Very interesting perspective I believe I would have to know more about the constitution than I do to really understand and enjoy the work.

Questions on the Constitution Answered Here

I have posted @ http://douglassbartley.wordpress.com/ summaries of all the cases cited in my treatise.

Also, I should be pleased to answer any questions on the Constitution, either where the court went astray or on the true meaning of its provisions.

Well ...

... how much time ya got? ;-)

Here's a couple:

(1) Is the 17th Amendment unconstitutional, due to the prohibition of anything violating state suffrage?

(2) Was the 14th Amendment about the newly freed slaves? And, is there a distinction between federal (14th Amd.) "citizen" and state "citizen?"

(3) What is your take on the Wickard vs. Filburn decision?

(4) Since Robert Jackson wrote the Wickard decision, and since Chief Justice John Roberts said that Jackson was his favorite Supreme Court justice (Karl Rove wrote about interviewing Roberts when Bush was going to fill the vacancy), is it reasonable to conclude that Roberts might have been a Trojan Horse, waiting for an opportunity to "change history" and got that opportunity via the National Federation (Obamacare mandate) case?

Your questions

Your questions are very good. I anticipate giving you my full answer later today.

In the meantime, on question 1, I am not certain which provision you mean by “the prohibition of anything violating state suffrage”. Do you mean Article 5?, “[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Please enlighten me.

Two more questions ...

... what is your take on the original 13th Amendment?

Is the National Defense Authorization Act, in regard to the part where the President can declare someone guilty of a crime, an unconstitutional Bill of Attainder


Answer to Tommy's second set of questions

TommyPaine asks:

Q1. What is your take on the original 13th Amendment?

A1. A while back someone asked about it, and I wrote a reply you will find @ http://douglassbartley.wordpress.com/2012/04/03/the-mystery-...

Q2. Is the National Defense Authorization Act, in regard to the part where the President can declare someone guilty of a crime, an unconstitutional Bill of Attainder.

A2. Do you have a citation to the pertinent section?

From the Technical Law Journal.

1. "No State shall * * * pass any Bill of Attainder . . . ."

2. A bill of attainder is a “legislative act that singles out an individual or group for punishment without a trial.”

3. "The Bill of Attainder Clause was intended . . . as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply—trial by legislature." U.S. v. Brown

4. JUSTICE REHNQUIST: A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment."

Judge Bartley: As a bill of attainder is a legislative act, the president can not be guilty of issuing one. However, if he has purported to do so, the bill would among other things, be ultra vires and the offense would be one of violating the doctrine of the separation of powers and worse even, that of assuming a power that congress doesn’t even have. As executive, he has no legislative powers whatever; and if he tries to legislate, he should be removed from office for that reason alone.

Please write back with more information.

Partial reply

Dear Mr. Paine:

Your longevity is amazing. Glad to hear you're still alive and well after these 250 plus years.

On your questions, I have postponed the answer to Q.1, pending an answer to my question mentioned in my post of earlier this morning. But the rest of your questions are, I believe, answered below.

Please note that the footnotes to my answers didn't print here, but that I have them in a parallel article at my blog: http://douglassbartley.wordpress.com/

(Q2a) Was the 14th Amendment about the newly-freed slaves?

(A2a) Yes, that was its principal aim of §1 which I here set out: “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. 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.”

However, textually the 14th is not limited to slaves. Therefore it applies broadly to everyone coming within its provisions. I should also say that its enactment did not change the basic relation of the federal and state governments, each being sovereign in its own spheres.

(Q2b) And, is there a distinction between federal (14th Amd.) "citizen" and state "citizen?"

(A2b) Yes. The distinction lies in the recognition that after emancipation many former slaves migrated through and to other states, without staying or being in a state long enough to become residents and thus were “residents” of no state and consequently not “citizens” of any state. Therefore, to provide privileges protection for migrant and migrating blacks (and other migrants), as well as protection for resident blacks (and other residents) it was necessary to guarantee the privileges to all United States citizens and not just to United States citizens who were also citizens of some state.

(Q3) What is your take on the Wickard vs. Filburn decision?

(A3) One of the all-time worst. From the treatise:

Perhaps, the best (or worst) example of commerce clause abuse is Wickard v. Filburn. Under the same Agricultural Adjustment Act, the secretary of agriculture set quotas for wheat production. Filburn grew small amounts of wheat on his farm for his livestock, seed, and home consumption. His allotment was 222 bushels, but he grew 461 and was fined $117. He sued to restrain the collection of the penalty on the grounds that the act exceeded congress's commerce power.

The normally-sensible MR. J. Robert Jackson took leave of his senses in the opinion, upholding the penalty with this reasoning:

MR. J. JACKSON: One of the primary purposes of the Act . . . was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies the needs of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.

CORONER: With the logic of MR. J. Jackson, in what one wag called the "ethereal flying bakery" case,[see the Suzanne Bartley depiction of the case on my blog] there can be nothing that escapes federal commerce power and regulation. The janitor cleaning an office building is in interstate commerce , because the Pine Sol he uses crosses state lines. As I sit at my computer typing this sentence, I too have entered the stream of commerce, for the coal that creates the electricity that powers the computer comes from outside Minnesota.

When my son works in our garage on his go-cart, he too is engaged in interstate commerce, for the aluminum in the socket wrench he uses was probably mined in Arkansas. My wife's cooking is in interstate commerce, because if she wasn't doing the cooking, we might go to MacDonald's. By staying home instead, we are reducing MacDonald's sales, and "overhanging" the fast food market, as MR. J. Jackson might say.


CORONER: The pre-Wickard view of the meaning and reach of interstate commerce was sensible. In United States v. E.C. Knight , which struck down the government's attempt to set aside a sugar company's acquisition of four competing refineries, the U.S. Supreme Court took a far different view of the stretch of commerce power, quite rightly saying, "Commerce succeeds to manufacture, and is not part of it." "It would be “far-reaching” to allow Congress to act “whenever interstate or international commerce may be ultimately affected."

The supreme court of E.C. Knight was right; the supreme court of Wickard wrong. As Professor Raoul Berger has written, the court has used “the commerce clause as a shuttlecock that has been the toy of shifting majorities on the bench.” Wickard, along with many other cases, plunged another dagger into the doctrine of enumerated power, already bleeding profusely from its near-mortal wounds in United States v. Butler and Helvering v. Davis , both of which turned the Constitution’s general welfare clause into an abracadabra for expanding federal power.

(Q4) Since Robert Jackson wrote the Wickard decision, and since Chief Justice John Roberts said that Jackson was his favorite Supreme Court justice (Karl Rove wrote about interviewing Roberts when Bush was going to fill the vacancy), is it reasonable to conclude that Roberts might have been a Trojan Horse, waiting for an opportunity to "change history" and got that opportunity via the National Federation (Obamacare mandate) case?

(A4) Unfortunately, yes.

From an article I wrote: “Chief Justice John Roberts and the Affordable Health Care Act: Both Anathema to the Constitution”:
“In his White House memoir, ‘Courage and Consequence,’ Karl Rove recalls being the lone non-lawyer among the group of George W. Bush aides who initially interviewed John Roberts for the Supreme Court in 2005. Rove asked Roberts to go back in history to name the justice whom he most revered. Roberts’ answer, Robert Jackson, intrigued and reassured Rove. When appointed in 1941, Jackson was serving as Franklin Roosevelt’s attorney general and had been expected to be a pro-New Deal rubber-stamp on the court. But, as Rove put it, Jackson ‘instead demonstrated a fidelity to the Constitution that Roberts admired.’” So writes Walter Shapiro @ http://news.yahoo.com/john-roberts-saves-obamacare--how-does...

Jackson, it must be said, was mostly a rubber stamp for the New Deal. He was the author of the amazing Wickard v. Filburn, 317 U.S. 111 (1942) http://laws.findlaw.com/us/317/111 holding that home grown wheat that is all consumed on the farm is interstate commerce because it affects interstate commerce. For more on that monstrosity, see http://douglassbartley.wordpress.com/2012/02/23/federal-comm...

In the ObamaCare case, writing for the majority, Roberts perhaps emulating his hero, held (from the syllabus pp. 3-4):

“CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress's power under the Taxing Clause.”
“It is therefore necessary to turn to the Government's alternative argument: that the mandate may be upheld as within Congress's power to ‘lay and collect Taxes.’ Art. I, §8, cl. 1 [the General Welfare Clause]. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,’ Hooper v. California, 155 U. S. 648, 657, the question is whether it is ‘fairly possible’ to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31-32. 4. Pp. 33- 44” @ http://www.nytimes.com/interactive/2012/06/29/us/29healthcar...

Despite Roberts embrace of the “general welfare” clause as a source of unlimited taxing power, the Founders regarded the clause not as a federal power but as a restraint on federal power. As Jefferson said and Madison agreed:

“[To construe the clause as providing a] distinct and independent power to do any act [congress] might please for the good of the Union . . . would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States . . . . Certainly no such universal power was intended to be given them. [The clause] was intended to lace [Congress] up strictly within the enumerated powers, and . . . without which, as means, those powers could not be carried into effect. (Emphasis added.)”

For more, please see THE GENERAL WELFARE CLAUSE: “How a Constitutional Restraint Was Transformed Into a Constitutional Power @ http://wp.me/sD41z-7.

Answer to Tommy Paine's Question 1.

(Q1) Is the 17th Amendment unconstitutional, due to the prohibition of anything violating state suffrage?

(A1) The 17th provides in part:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. * * *”

The text of the Amendment purported to repeal the part (italicized below) of Article 1, §3, which provides: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

“The prohibition of anything violating state suffrage” to which Tommy refers is Article 5? “[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Unfortunately even though the 17th conflicts with both Article 1, §3, and Article 5, the conflicts amount to nothing, the reason being that the 17th, later in time, overrides anything and everything in the Constitution to the contrary, presuming it was adopted properly.

The 17th is one provision to target for repeal, as many believe it shifted the balance of power away from the states qua states (that is, from the state governments) to senators directly and democratically-elected by the voters—thereby transferring the coalescing powers of state governments into the hands of the mass mobocracy with its ever-shifting whims.

LOL ...

... regarding my longevity. It's just "Common Sense." ;-)

BTW: My friends call me Tommy.

Thanks for the reply. Regarding the 14th, I remember reading that it was passed (a) unconstitutionally because the southern states were being run by the feds under martial law, and (b) the justification for it was that due to the Dred Scott decision, black slaves were not citizens with standing, so the 14th was to correct that. But this view does not square with your view. What's your take on that?

Also, with Roberts claiming the general taxing authority, it still stands that there are only two types of taxes: direct and indirect. The penalty is calculated on income SOMETIMES. There is a minimum amount that is not calculated on income, so it is NOT a tax that falls under the 16th Amendment. Correct?

That would leave "normal" direct and indirect taxes. Since it is not apportioned, it cannot stand as a direct tax. And since it is not uniform (Nevada has been given an exemption, for example), it cannot stand as an indirect tax. Correct?

So, it seems that even with Roberts' treason, it still is not constitutional. Of course, the Supremes might just deny cert. in the future.

Will be interesting to see if they take up the case now about the fact that the bill did not originate in the House. Only takes 4 Supremes to get it on the calendar. They might be looking for revenge.

Hey Tommy,

I found an excellent reference for the 14th Amendment issue you may enjoy reading. "Unorthodox and Paradox: Revisting the Ratification of the Fourteenth Amendment" by the Alabama Law Review:

It starts with the passing of the 13th Amendment and covers all the weird and probably unconstitutional changes Congress made in procedure before passing the 14th.

I AM is all that is. Everything else is malleable.

Thanks Jimbo ...

... I'll check it out.

Yes ...

... the states no longer elect the senators, so they no longer have suffrage. Instead, there are two Houses of Representatives, going by different names.

Thank you, JB :-)

Also, along with the above, Hillsdale College offers FREE online Constitution Courses, for those who are interested.


2014 Liberty Candidate Thread: http://www.dailypaul.com/287246/2014-liberty-candidate-thread

2016 Potential Presidential Candidates: http://alturl.com/mt7tq

"What if the American people learn the truth" - Ron Paul