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Ron Paul: Federal Courts and the Imaginary Constitution (2003)

It's been a tough summer for social conservatives, thanks to our federal courts. From “gay rights” to affirmative action to Boy Scouts to the Ten Commandments, federal courts recently have issued rulings that conflict with both the Constitution and overwhelming public sentiment. Conservatives and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role.

The practice of judicial activism — legislating from the bench — is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.

Consider the Lawrence case decided by the Supreme Court in June. The Court determined that Texas had no right to establish its own standards for private sexual conduct, because gay sodomy is somehow protected under the 14th amendment “right to privacy.” Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states' rights — rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Texas.

More: http://archive.lewrockwell.com/paul/paul120.html



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fireant's picture

If the States were represented in Congress, much of this federal

judicial over reach would be put in check. As it is, we have only one "house" in Congress, and the States are not represented.

Undo what Wilson did

States can settle the issue

Including all the real issues such as gay marriage, homosexuality, prohibition, drugs, proliferation etc.

They need to reserve it to the states and settle.

I don't agree that a state should ban an entire practice, make no mistake. After the states have power here, cities and towns should take the next step and decide their own rules themselves.

Ron Paul

Is echoing Thomas Jefferson here.
http://www.dailypaul.com/308882/thomas-jefferson-liberty-and...

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Hear, O Israel: YHUH our God YHUH one. And thou shalt love YHUH thy God with all thine heart, and with all thy soul, and with all thy might.

seems anti-liberty

Seems a bit anti-liberty to me. The states have more rights than the people, who by harming no one else, are nevertheless punished?

Check out http://ronpaulforums.com for activism and news.

I think the 9th and 10th amendments

help to answer your question.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Should declining jurisdiction be construed to deny or disparage the rights retained by the people?

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Hear, O Israel: YHUH our God YHUH one. And thou shalt love YHUH thy God with all thine heart, and with all thy soul, and with all thy might.

Most of the Bill of Rights

Most of the Bill of Rights were incorporated by the states and it seems they are using the Due Process clause in the 5th and 14th for a right to privacy.

In the end, it doesn't matter what the Constitution says. Your right to be left alone existed before any government.

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I think you are referring to

The Lawrence v Texas case. And I think the claim that the 5th and 14th are violated here would come as a surprise to the people who wrote and passed those amendments. I am no expert but if you want a thorough answer Scalia's dissent in that case should be helpful.

The reason the constitution matters in this case is if there is no "right to privacy" or "sodomy" in the constitution then the Supreme Court is overstepping the jurisdiction of the states and the rights reserved to the people under the 10th amendment.

If they can ignore the 10th amendment then the constitution is as Ron Paul said "imaginary," and subject to the whims of the judicial activists. Wouldn't that be anti liberty as well?

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Hear, O Israel: YHUH our God YHUH one. And thou shalt love YHUH thy God with all thine heart, and with all thy soul, and with all thy might.

I don't think the states have

I don't think the states have a right to violate rights either. I know some people just can't accept that gay people exist but suggesting that the state has the right to criminalize their private behavior is absurd.

Where do our rights come from?

And surely 90%+++ of heterosexual couples have engaged in sodomy.

Check out http://ronpaulforums.com for activism and news.

Can't you make

that argument to your state? They might agree with you that those laws are absurd. Many have done just that. I just want to point out though, it is the position of Ron Paul that such questions should be delivered to the states and to the people, where they were answered previously, rather than to the Federal courts. See We the People Act (H. R. 539), introduced by Ron Paul. https://www.govtrack.us/congress/bills/111/hr539/text

"3.LIMITATION ON JURISDICTION
The Supreme Court of the United States and each Federal court—

(1)shall not adjudicate—
(A)any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;
(B)any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or
(C)any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation; and
(2)shall not rely on any judicial decision involving any issue referred to in paragraph (1).

4.REGULATION OF APPELLATE JURISDICTION
The Supreme Court of the United States and all other Federal courts—

(1)are not prevented from determining the constitutionality of any Federal statute or administrative rule or procedure in considering any case arising under the Constitution of the United States; and
(2)shall not issue any order, final judgment, or other ruling that appropriates or expends money, imposes taxes, or otherwise interferes with the legislative functions or administrative discretion of the several States and their subdivisions.

5.JURISDICTIONAL CHALLENGES
Any party or intervener in any matter before any Federal court, including the Supreme Court, may challenge the jurisdiction of the court under section 3 or 4 during any proceeding or appeal relating to that matter."

I'm going to delay my full answer to your question "Where do our rights come from?" I guess the standard answer "from our creator" is what you are fishing for though, and I'm ok with that.

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Hear, O Israel: YHUH our God YHUH one. And thou shalt love YHUH thy God with all thine heart, and with all thy soul, and with all thy might.

So the states can violate the

So the states can violate the Declaration of Independence?

This is one of the weakest points in Ron Paul's arguments. He's biased by his religious beliefs.

Regardless, the states have incorporated the Bill of Rights, and beyond that, the states formed the union based on natural rights...

Ron is wrong on this one.

Check out http://ronpaulforums.com for activism and news.

Can you explain

where he gets it wrong? I'm just learning this stuff so I'm happy to hear the opposing opinions.

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Hear, O Israel: YHUH our God YHUH one. And thou shalt love YHUH thy God with all thine heart, and with all thy soul, and with all thy might.

If you have a right of

If you have a right of revolution to alter or abolish the government if the government violates "certain unalienable Rights”.

This right is referenced in the Texas state constitution though other states add for the "peace, safety, happiness" of citizens. It does add equal rights clauses and equality under the law.

I don't see how you can argue that two human beings, regardless of sex, don't have a natural right to cohabitate or do anything they want together in private. In my understanding, it doesn't matter what any law, constitution or court says; these rights precede everything.

Sec 2. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.

Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact,
have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not
be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative. (Added Nov. 7, 1972.)

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You may believe

human beings "have a natural right to... do anything they want together in private" but I simply disagree. We may just have to leave it at that. Several states have disagreed as well. You can see that in the laws against incest, bestiality, prostitution, adultery, obscenity, etc, and the court rulings that upheld them. For 200 years they have disagreed, and I'm having a hard time following the argument to the contrary- that there is no legetimate state interest behind this morals legislation. At least you have to admit that this is a new development that has resounding implications.

Also, for discussion of the equal protection clause, you may be interested in Justice O'Connor's opinion and Justice Scalia's response. I won't try to paraphrase here.

Thanks for not yelling at me, by the way. I know it's tempting... :-)

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Hear, O Israel: YHUH our God YHUH one. And thou shalt love YHUH thy God with all thine heart, and with all thy soul, and with all thy might.