Once again, we have Republican dominance of a state’s political branches of government rendered moot by the council of revision aka the federal court system.
Utah, like many GOP-controlled states, moved to cut off taxpayer funds to Planned Parenthood after their associates were caught on video discussing the trafficking of fetuses. The liberals in the legal profession have successfully placed temporary injunctions on many of these acts. After the district judge withdrew a stay on Utah Governor Gary Herbert’s action, the 10th Circuit Court of Appeals today reversed that decision and blocked the common sense action on the part of the state of Utah.
Writing for the three judge panel (consisting of Reagan, Clinton, and Obama appointees) in Planned Parenthood v. Herbert, Judge Mary Briscoe determined that Planned Parenthood was likely to succeed on the merits because “a reasonable finder of fact is more likely than not to find that Herbert issued the directive to punish PPAU for the First and Fourteenth Amendment rights it has identified in this litigation.”
While one judge disagreed with another constitutional point, they all agreed that the governor violated … you guessed it … the 14th Amendment’s Equal Protection Clause. The Equal Protection Clause was merely designed to reiterate the basic life, liberty and property negative rights that applied to everyone else and ensure that they were granted to freed slaves. As I note in Chapter 4 of Stolen Sovereignty, Rep. James F. Wilson, R-Iowa, the Chairman of the House Judiciary Committee back in the 1860s who helped draft the 14th Amendment, spoke emphatically that it was “establishing no new right, declaring no new principle.” “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen,” declared Wilson in 1866.
Yet, we have now moved onto a post-constitutional judicial oligarchy that believes the 14th Amendment not only creates a right to an abortion, but a positive right for a private organization under criminal investigation for trafficking baby parts to secure taxpayer funding.
What is further ironic is that we have a legal profession that now agrees that not giving a criminal enterprise taxpayer funding is tantamount to blocking their First Amendment rights, but taking negative action (imprisonment or fines) against private business owners who don’t service gay weddings or transgenderism is the highest order of mankind. Oh, and let’s not forget that the pesky document from 1776 declares that fundamental rights come from natural law and nature’s God, of which the sexual identity movement repudiates.
We have reached a point in time when the judiciary has voided out the elected branches of government even to the point when it must keep taxpayer funding flowing to criminal enterprises that engage in immoral behavior that is well within the historical powers of a state to regulate. We have a judiciary that green lights liberal state officials to infringe upon inalienable negative rights of property, conscience, and self-defense, but impedes conservative state officials from regulating positive privileges.
As I noted last week, this is part of a growing trend from the lower courts tossing out every last regulation of abortion facilities and mandating funding for Planned Parenthood. It’s time conservatives realize that we are not just one election away from winning back the courts. The courts are irremediably broken. Even if we succeed in appointing judges who will never expand upon existing breaches in the Constitution, a task that is dubious at best, there is enough existing post-constitutional precedent embedded just in the bastardization of the 14th Amendment alone to void out every policy initiative we could possibly hope to achieve from a Republican president and GOP-controlled states. That existing “precedent” is respected by most GOP appointees, except for the few in the mold of Clarence Thomas. We will never win the judiciary game a half century into this post-constitutional Gomorrah.
It’s time to ignore the courts and the first step to delegitimizing their ill-gotten power is for Congress to use its existing constitutional authority, pursuant to Article III Section 2, to regulate the jurisdiction of the federal judiciary. They must protect the states in their ability to pass common sense immigration enforcement laws, abortion regulations, define marriage, protect religious liberty and protect the franchise from fraudulent voting.
The lower courts are even worse than the Supreme Court, yet they are created by Congress and can easily be swatted down. The notion that one federal district judge could rule over a state or even a congressional statute fully in the spirit of our Constitution, history, and traditions is absurd, given the fact that Congress can abolish those courts altogether. As for the Supreme Court, Congress can prevent all but a few spheres of original jurisdiction granted to it by Article III from becoming precedent through narrowing their power of adjudication.
Let’s not forgot the timeless admonition of Abraham Lincoln in his first inaugural address:
[t]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
In this spectacularly hyped election season that will determine control of the presidency, Congress and state governments, let’s remember that if we fail to alter the perception of the court’s power, the outcome of every major political and social question of our time will be placed in the hands of that eminent tribunal. Their ill-gotten power as the council of revision, in conjunction with their anti-constitutional ethos used to make those decisions, will ensure that we no longer have individual, state or national sovereignty to be governed by the consent of the governed.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.