United States Justice Foundation

United States Senate Committee on the Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts

Hearing on July 22, 2015 “With Prejudice: Supreme Court Activism and Possible Solutions”

Statement of Former Congressman John F. Hostettler on behalf of the United States Justice Foundation 932 D Street Suite 2 Ramona, CA 92065 www.usjf.net;

Chairman Cruz, Ranking Member Coons, and members of the Subcommittee:

Thank you for the opportunity to offer this statement on behalf of the United States Justice Foundation (“USJF”). USJF, was founded in 1979, and operates as a nonprofit public interest, legal action foundation dedicated to instruct, inform, and educate the public on matters relating to the U.S. Constitution, and to litigate significant legal issues in federal and state courts.

My name is John Hostettler and I serve as the Senior Policy Advisor to USJF. Previously, I served in the U.S. House of Representatives from 1995-2007. During my tenure in the House, I served on the Committee on the Judiciary and its Subcommittee on the Constitution from 2001–2007.

Mr. Chairman, USJF would like to thank you for calling this hearing on this important and timely subject. Although there are several illustrations of judicial usurpation, we want to focus our statement on the U.S. Supreme Court’s recently issued opinion in Obergefell v. Hodges – the latest in a series of decisions by that body that appear designed to disregard all Constitutional constraints on its influence over American society.

I use the term “influence” intentionally. It is important to distinguish between the influence of an institution, and the power of that same institution. In Federalist Paper No. 78 Alexander Hamilton compared the authority of each of the three “different departments of power.” After describing the Congress’ power over the “purse” and the president’s power of the “sword,” Hamilton explained that he and the other framers had endowed the judiciary with “merely judgment.” Of course, if federal courts limited themselves to “merely” judgment, there would be no need for this hearing. In fact, in the same Federalist Paper, Hamilton observed that “from the nature of [the judiciary’s] functions, [it] will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” But the very purpose of this hearing is to investigate the possible remedies to a situation whereby a large portion of the citizenry of the United States believes that the judiciary – and especially the Supreme Court – has become “dangerous to the political rights of the Constitution,” and as such, possesses the “capacity to annoy or injure them.”

But if the Supreme Court does not possess any capacity to injure the political rights of the Constitution, why do so many people believe it does? The common misunderstanding of what amounts to the “natural feebleness” of the judiciary expressed by Hamilton is due to the concept I mentioned earlier – influence. There’s no doubt that the Supreme Court’s place as the High Court has attracted the respect as well as the reputation for possessing the last word on all Constitutional questions from the legal profession of the United States.

The application of the “case method” to the teaching of Constitutional Law has resulted in the virtually unanimous chorus of lawyers counseling their clients that if the Supreme Court has said it, it is settled law. With that type of advice widespread in the legal community, it is hard to overstate the influence that such counsel has had on thousands of decisions made by state and federal officials who have sought guidance from, for example, the county council’s lawyer, a city attorney, a state attorney general, or, in the case of many members of Congress, their own legal training.

This type of influence is formidable but not unprecedented. And it was not unknown to the Constitution’s framers. In explaining the diminished executive power proposed by the delegates in Philadelphia, in contrast to the virtually boundless authority of the monarch of Great Britain at the time, Hamilton depicted a similar phenomenon that we are witnessing today with the Supreme Court. Hamilton said that the monarchy in Great Britain had, over time, learned to transform a less weighty attribute into a mighty perception. Referring to an executive’s veto authority, he observed the following in Federalist Paper No. 69:

The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation.

Though the king was unable to directly fashion laws to his liking, he could, by the mere threat of a veto, greatly influence the work of the legislative body having substituted influence for authority, or power. So it is today that the Supreme Court has substituted influence for authority, or power by means of substituting opinion – or, merely judgment – for “settled law.”

2 But once again, influence is all that it is. What is “merely judgment” exercised by the Supreme Court cannot begin to compete with the Congress’ power over the purse as well as the power to, as Hamilton mentioned in Federalist Paper No. 81, “degrad[e the judges] from their stations.” Add to this the explicitly exclusive authority for the Congress to regulate the jurisdiction of the judiciary – including that of the Supreme Court – and you have the unquestionably Constitutional means to check a judiciary which has proven incontestably that it is dangerous to the political rights of the Constitution.

For the benefit of the subcommittee, the USJF is providing the Committee with three articles explaining how Congress should address judicial abuses. These articles were commissioned by USJF, and widely disseminated over on the Internet over the past six weeks by USJF. Together, they are offered as a roadmap for Congress to bring the Judiciary back into line with their constitutional role.

The first article is by Edwin Vieira, Jr. who holds four degrees from Harvard including his J.D from Harvard Law School. In the U.S. Supreme Court, he successfully argued or briefed several successful cases including Communications Workers of America v. Beck. He is the author of “How to Dethrone the Imperial Judiciary.”

Dr. Vierra’s article is an exposition on the Constitution’s “good behavior clause,” how it has been disregarded, and the role that it should play.

The second article is by Thomas J. Ashcraft who practices law in Charlotte, North Carolina. Previously, he served on the legislative staff of U.S. Senator Jesse Helms in the 1980s and then served as the United States Attorney for the Western District of North Carolina from 1987-93.

Mr. Ashcraft’s article explains the constitutional authority of Congress to limit the jurisdiction of the federal courts.

The third is the work of Virginia Delegate Robert G. (“Bob”) Marshall. Delegate Marshall is a senior member of the Virginia House of Delegates, currently serving his 12th term. He is also the co-author of the 2006 voter-approved traditional Marriage Amendment to the Constitution of Virginia. Delegate Marshall previously worked on Capitol Hill as an aide to Congressman Bob Dornan of California.

Delegate Marshall’s article explains how the Congressional power of the purse can be brought to bear to keep the federal Courts from abusing their limited power.

The Founders provided Congress with adequate tools to remedy lawless decisions of the High Court – employing the good behavior clause, the power to limit the jurisdiction of the federal courts, and the power of the purse – if Congress has the will to use them.

USJF would welcome the opportunity to assist this subcommittee to fashion limits on judicial abuses in any way that would be helpful.

3 In conclusion, I want to thank you Chairman Cruz and Ranking Member Coons for this opportunity share the perspective of the U.S. Justice Foundation and its members and supporters.

4 Building the Resistance to Same-Sex Marriage (tenth article in a series)

“Same-Sex Marriage” Versus Judicial “Good Behavior” by Edwin Vieira, Jr.; June 22, 2015

“Same-sex marriage” may be an affront to common sense, an oxymoron, and even an ontological impossibility. But as the product of a type of behavior familiar in contemporary politics, its promotion is nothing really new. The contention that the government may impose “same-sex marriage” on society is just a particularly egregious example of the dark art of “law laid down by linguistic legerdemain”: namely, the usurpation of governmental authority through alteration of the meaning of a legally operative word or phrase by affixing to it some tendentious adjective or other qualifying term.

Simply by transmogrifying definitions, entirely new sets of legal rights, powers, privileges, immunities, duties, exposures, and liabilities can be created out of essentially nothing more than plays on words. For example, prefixing the noun “speech” with the pseudo-adjective “hate” creates the novel legalistic category of “hate speech”, which supposedly is not protected by the First Amendment, and therefore can be subjected to pervasive governmental regulation. With no greater difficulty than that, public officials can arrogate to themselves a license to impose censorship and to penalize individuals who expatiate vehemently on prohibited subjects. This process is also capable of aggregating such synthetic powers. For instance, once “same-sex marriage” receives a legalistic imprimatur, those who express a strong aversion to it can be condemned for “hate speech”.

Although such verbal tricks can be performed in legislative statutes and administrative regulations, the judiciary’s method of continuously generating myriad “precedents” on an ad hoc “case-by-case” basis — in each of which instances judges can make subtle, incremental changes in the law through supposed “constructions” and “applications” — provides the widest latitude for alterations of this kind.

Specifically, judges have expanded Congress’s limited constitutional power “[t]o regulate Commerce . . . among the several States” into a discretion to regulate, within and throughout the States, not only actual “Commerce”, but also matters which have nothing whatsoever to do with “Commerce”. This feat only required ruling that the power to regulate “Commerce” entitles Congress to regulate whatever is capable of “affecting Commerce” — even though the latter is admittedly not itself “Commerce”, or else the modifier would be unnecessary. Employment of the participle “affecting” has resulted in a legal elephantiasis of the term “Commerce” (and thus of Congress’s power with respect to “Commerce”), without the inconvenience (and honesty) of amending the Constitution for that purpose. More generally, by invoking “the living Constitution” — which must be distinguishable from “the Constitution” simpliciter, or else the participle would be superfluous — judges can rationalize to their own satisfaction the expansion of every governmental power to whatever degree they dare.

5 Self-evidently, though, “law laid down by linguistic legerdemain” is most effective — and most dangerous — when the process occurs through the redefinitions of words which do not appear in the Constitution. After all, phrases such as “affecting Commerce” and “hate speech” depend in the final analysis upon nouns the meanings of which are defined and thus circumscribed by the legal theory, history, and practice peculiar to the United States. Even by recourse to imaginative adjectival or other modifiers, one can go only so far in attempting to bend the received legal meanings of such terms before the deception becomes patent to every observer.

In contrast, the import of and justification for “same-sex marriage” depend upon plastic and controversial conceptions concocted from such sources as sociology, psychology, and fashionable ideologies, not upon specific legal terms with well-known and relatively narrow technical meanings. And necessarily so. Inasmuch as marriage has preexisted the government of the United States for centuries in Western civilization (and even for millennia if other civilizations are considered), the government cannot claim to have been the origin either of marriage itself or of the definition of marriage.

The U.S. Constitution nowhere mentions marriage or any matter material to it. So the government can point to no historical precedent or present power under color of which it can purport to equate “same-sex marriage” with marriage for any purpose. No power, that is, unless public officials enjoy an unbridled license to redefine common words ad libitum — because if “same-sex marriage” were the same as marriage the adjective would not be necessary. (And perhaps not to define those terms at all, under the pretense of equating them. For the proponents of “same-sex marriage” have yet to clarify precisely what definition of marriage allows for participation on equal terms both by two individuals of opposite sex and by two individuals of the same sex — and yet excludes such arrangements as “plural marriage”, “child marriage”, “incestuous marriage”, or perhaps even “interspecies marriage”.)

It should be obvious that for any public officials to claim the discretion to redefine words in order to expand their powers is to misuse or abuse their authority. Through the Looking-Glass exposes the ulterior purpose of such an assertion as well as its audacity:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Such attempts by political wordsmiths “to be master — that’s all” are arguably less dangerous as far as the Legislative and Executive Branches of the government are concerned than where the Judicial Branch is involved. For members of the Legislative Branch who persist in perversely redefining words in the course of enacting statutes can be removed from office by the electorate at regular intervals, or even can be expelled

6 from Congress by its other members. If the chief officers of the Executive Branch (the President and the Vice President) misbehave in a similar fashion when executing the laws, they too can be removed by the voters; and in any event the President is subject to limitations in the number of terms he may serve. In addition, the President can demand the resignation of any errant official whom he has appointed to a position in the Executive Branch. Moreover, Congress can eject any civil officer of the United States from his office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”.

Distinguishably, judges are not elected officials; and their tenures in office are indefinite, the Constitution providing that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”. The latter clause is usually said to invest judges with “life tenure”, so as to render their expulsion from the Bench exceedingly difficult. Such is not actually the case, however. For judges can be removed — not only as with any other civil officers “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” — but also for a lack of “good Behaviour” which does not rise to the level of an offense which warrants impeachment.

Plainly enough, the grounds for “Impeachment . . . and Conviction” and what forms of misconduct manifest a lack of “good Behaviour” are not identical. Rather, according to basic principles of constitutional interpretation, each provision of the Constitution must be construed in the light of the others, and that no provision of the Constitution can be presumed to be without effect. If the “good Behaviour” clause contemplated no more than the absence of “Treason, Bribery, or other high Crimes and Misdemeanors”, it would be superfluous — because, as civil officers of the United States, judges would always be subject to “Impeachment . . . and Conviction” on those grounds, without any special mention of their exposure. Or, to hammer home that point with redundancy, the Constitution might have specified that “Judges . . . shall hold their Offices unless impeached and convicted”. Thus, by dint of the dual standards, the Constitution recognizes that, although “Treason, Bribery, or other high Crimes and Misdemeanors” necessarily involve a lack of “good Behaviour”, not every lack of “good Behaviour” involves “Treason, Bribery, or other high Crimes and Misdemeanors”. And therefore the Constitution must allow for removal of judges under two different sets of circumstances and by two different procedures.

This is not to say that “Impeachment . . . and Conviction” would be inapplicable to a judge who practiced the dark art of “law laid down by linguistic legerdemain”, even in a single egregious case. Being a blatant mal-administration of his office, in violation of his public trust and duties, such misconduct could constitute a “high . . . Misdemeanor”, as William Blackstone explained in his Commentaries on the Laws of England and Joseph Story described in his Commentaries on the Constitution of the United States. Nonetheless, although possible, impeachment does not provide a practical remedy in most instances of this kind. First, the procedure is cumbersome. Second, the essentially criminal nature of a “high . . . Misdemeanor” would require sufficient evidence of malign intent (what lawyers denote as mens rea). The proof would likely be problematic, too, if

7 an errant judge defended himself on the grounds that he had uncritically followed “precedents”, had mechanically applied the judiciary’s peculiar “tests” for construing the Constitution, or had relied unthinkingly upon some other intellectually impenetrable judicial mumbo jumbo in arriving at his decision.

In contrast, the standard of “good Behaviour” covers situations in which criminal wrongdoing and mens rea need not be present, whereas common sense deems intolerable the judicial misconduct in question. That standard allows for the removal of judges who, although perhaps personally honest, have proven themselves in some other way unsuitable for continuation in office. A judge whose tenure manifests insanity, emotional instability, recurrent intoxication, physical inability to perform his duties, gross ignorance, incompetence as a legal analyst, or chronic indolence (to mention only a few disqualifying deficiencies) may not be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors”; but his comportment certainly falls so short of “good Behaviour” as to require his removal. So, too, for a judge who, infatuated with “law laid down by linguistic legerdemain”, misuses the Constitution as a blank slate upon which to inscribe theretofore unheard-of and fantastic legal doctrines. Such a judge may sincerely hold to the belief that his office so empowers him. But an individual can be utterly sincere, yet at the same time completely and dangerously wrong. And an individual who acts upon so errant a belief cannot be suffered to hold a judicial office which enables him to harm the entire country by putting that belief into practice.

To be sure, the Constitution specifies no particular procedure for removal of judges because of their lack of “good Behaviour”. Nevertheless, a power of removal incident to satisfaction of that condition must exist, even if only by implication, or else the condition itself would be meaningless. And no part of the Constitution can be dismissed as inoperative. Therefore, once a judge ought to be removed on that ground, he can be removed. And, if nowhere else, the authority to enact legislation to effectuate that end must inhere in Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested in the Government of the United States”.

One plausible procedure drawn from the perspective of pre-constitutional Anglo- American legal history, as well as the structure of the Constitution itself, would involve: (i) a majority vote in both the House of Representatives and the Senate which call for the removal of a judge by enactment of a suitable bill or resolution which laid out the judge’s specific misconduct in violation of the standard of “good Behaviour”; followed by (ii) an order to that effect from the President if he concurred in Congress’s directive.

If the constitutional principle of “checks and balances” is to be maximally effective, however, the Judiciary should play no part whatsoever in this process. For, just as with an individual, no institution can be suffered to be a judge in its own case. The contemporary Judiciary daily demonstrates not only such a disregard for basic constitutional principles of self-restraint, but also such irresponsibility, arrogance, and even imperialistic ambition to lord itself over the other branches of government as well as over the American people as a whole, that no judge can be presumed to be unbiased

8 where the lack of “good Behaviour” of some other judge is at issue. In contrast, the requirement that both the Legislative and the Executive Branches should cooperate in the removal of judges would maximize the constitutional “checks and balances” at work in the process, and would minimize the possibility that institutional or personal prejudices might improperly affect its outcome.

It might be objected that a Congressional bill or resolution mandating the removal of a particular judge from office should be disqualified as a constitutionally prohibited “Bill of Attainder”. The Constitution plainly provides, however, that a judge can be removed for lack of “good Behaviour”; and any such judge obviously must be identified by name in the course of whatever process applies. Therefore, if the Constitution permits that process to involve the passage by Congress of what could be called a “bill” specifically directed ex necessitate at that judge by name, then such a “bill” cannot be a “Bill of Attainder” — for the simple reason that one provision of the Constitution cannot render nugatory any other provision.

It might also be objected that a procedure would not afford “due process” to a judge threatened with removal. “Due process”, however, is the process the Constitution makes due, which is not the same in every situation. An individual nominated for a position on the Bench has always been entitled to submit evidence as to his qualifications within the rules established for such a case by the Senate, but nothing more than that. The selfsame procedure, according to rules established by the House and the Senate for their respective hearings, should equally suffice in the case of an individual’s removal from the Bench. Certainly no historical example can be cited in support of a prediction that either the House or the Senate would arbitrarily preclude a judge or witnesses on his behalf from testifying or introducing other relevant evidence when such a bill or resolution were being considered.

By whatever means, though, something must be done — and soon — to bring reckless judges to heel. The present enthusiasm among all too many judges for legitimating “same-sex marriage” indicates how far they are willing to go in aid of perverse “social engineering” at this point in time. That vanishingly few people ever imagined that American judges would go even as far (and as fast) as they already have ominously suggests that they are more than likely to go farther still.

Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment. He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of

9 the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com. His latest work is "How To Dethrone the Imperial Judiciary". He can be reached at P.O. Box 3634, Manassas, Virginia 20108, or [email protected].

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

10 Building the Resistance to Same-Sex Marriage (eleventh article in a series)

Time to Checkmate Federal Courts on Same-Sex Marriage and More By Thomas J. Ashcraft; June 23, 2015

At the close of the Constitutional Convention in Philadelphia in 1787, a woman allegedly approached Benjamin Franklin and asked, “Well, Doctor, what have we got – a republic or a monarchy?” The sage 81-year-old Franklin replied, “A republic, if you can keep it.”

Wordsmith, entrepreneur, inventor, diplomat, and polymath, Franklin understood that a piece of paper, however well conceived and drafted, would never be sufficient to secure ordered liberty. Over the long haul, the prize of a republic of free citizens would hinge on constant effort.

The new U.S. Constitution was a grand legal document, but its function would be to provide the tools for generations of human exertion. Without continuing the sacrifices made by Franklin and the founders into the future, the American experiment in liberty, which captured the imagination of the world, would not endure.

Can we today, utilizing the tools of the Constitution, keep alive the self-governing federal republic we have received? With the U.S. Supreme Court entertaining, as if a serious legal issue, whether ordinary state laws on marriage were outlawed 147 years ago when the post-Civil War Fourteenth Amendment was adopted, now would be a good time to reexamine and deploy such tools. An obvious starting point is the control of federal court jurisdiction which the Constitution entrusts to Congress. (For a discussion of several other constitutional means to check judicial usurpation, see Edwin Vieira, How to Dethrone the Imperial Judiciary (2004).)

No court can decide any case without jurisdiction, the authority to render a binding judgment in a disputed matter. Unlike most state courts which possess general jurisdiction, federal courts have only limited jurisdiction to hear cases as authorized by the U.S. Constitution and laws thereunder. They are courts of limited jurisdiction.

Article III of the Constitution provides in part:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases

11 affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— . . . —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Emphasis added.]

The above language was the result of multiple compromises by the Constitutional Convention. Chief among them was the so-called Madisonian Compromise. Some delegates opposed creation of a federal court system below the U.S. Supreme Court, leaving state courts to decide federal issues first, with possible appeal to the Supreme Court. James Madison and others thought creation of a lower federal court system was best, and persuaded the Convention to defer the issue to later congressional decision.

Thus Congress was given authority over the existence of lower federal courts including details of their jurisdiction. Congress has used this power to alter lower court jurisdiction in a variety of ways. One of the most prominent was the Norris-LaGuardia Act of 1932 which restricted injunctions in labor disputes – a statute later upheld by the Supreme Court. (See “Congressional Authority over the Federal Courts,” Congressional Research Service (May 16, 2005).)

As for the U.S. Supreme Court, the Constitution, not Congress, sets its original jurisdiction, the matters initially filed in and heard by it. These cases are rare and comprise a fraction of the high court’s workload. The bulk of its deliberations are appeals from lower courts, its appellate jurisdiction. As to this jurisdiction, Congress is given a large hand: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (See Ralph A. Rossum, “Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court,” 24 Wm. & Mary L. Rev. 385 (1983).)

After arguing for the general soundness of the Constitution’s allocation of judicial power for the new federal system, Alexander Hamilton, in Federalist No. 80 (1788), explains the checking power entrusted to Congress over court jurisdiction against any “mischief” that might arise:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will

12 have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. [Emphasis added.]

(In Federalist Nos. 79 and 81 Hamilton discussed the ultimate check provided Congress over the entire federal judiciary, the power to impeach and remove judges.)

In the modern era, various efforts have been made to use congressional control over court jurisdiction to check sweeping liberal decisions of the Supreme Court. The subjects addressed have included Court rulings which sanctioned large-scale busing as a remedy to public school segregation, banned traditional group prayer in public schools, and overturned longstanding state criminal laws restricting abortion. Other efforts to curb jurisdiction have involved religious liberty questions, recitation of the Pledge of Allegiance, display of the Ten Commandments, and state marriage laws reflecting the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair.

Recently some members of Congress have focused on the need to restrain federal judges from imposing their will over state marriage laws – to protect the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair. Congressman Steve King (R-IA) has led a handful of his colleagues in seeking such legislation in the current Congress. See Rep. King’s bill entitled “Restrain the Judges on Marriage Act of 2015,” H.R. 1968, 114th Congress, 1st Session (2015). Most Republican congressmen appear to be overly timid and have been unwilling to join this effort. Only 10 members have signed on as co-sponsors: Brian Babin (R-TX), Jeff Duncan (R-SC), Louie Gohmert (R-TX), Doug LaMalfa (R-CA), Thomas Massie (R- KY), Steven Palazzo (R-MS), Glenn Thompson (R-PA), Tim Walberg (R-MI), Ted Yoho (R-FL), and Walter Jones (R-NC). Are these the only Republican House members who have the courage of their convictions on marriage?

Sen. Ted Cruz (R-TX) introduced a companion bill to Mr. King’s bill in the Senate, S.1080, “Protect Marriage from the Courts Act of 2015.” He has zero co-sponsors at this point. Are there no other Republican Senators who support traditional marriage?

In the 1970s and 1980s, Sen. Jesse Helms (R-NC) had some success in the Senate with court limitation amendments on school prayer. But he too faced opposition from some Republican colleagues.

In April 1979, with a 58-member Democratic majority, Helms won approval of court limitation twice (with votes of 47 to 37 and 51 to 40), only to see the legislation die after parliamentary maneuvers and inaction in the Democratic House. In August 1982, when Republicans held 53-member majority in the Senate, Helms offered a similar court limitation amendment, which by a 47-53 vote survived a motion to table (or kill). Lacking 60 votes for cloture, though, the legislation did not clear the Senate. Helms tried

13 again in September 1985. By then not only did he face liberal Democratic opponents, but key Republicans, including Senators John Danforth (R-MO), Pete Domenici (R-NM), Barry Goldwater (R-AZ), Orrin Hatch (R-UT), and Richard Lugar (R-IN), joined them to table the amendment by vote of 62 to 36.

Congressman John Hostettler (R-IN) led a winning effort in the House in 2004, when Republicans held a slim majority. His Marriage Protection Act removed all jurisdiction from lower federal courts and appellate jurisdiction of the Supreme Court over the Defense of Marriage Act. DOMA, enacted in 1996 by veto-proof majorities of both houses of Congress, allowed states not to recognize same-sex marriages from other states (sec. 2) and defined marriage for federal purposes as only between a man and a woman (sec. 3). After the House Judiciary Committee, chaired by Congressman Jim Sensenbrenner (R-WI), cleared Hostettler’s bill, it passed the full House in July 2004, on a vote of 233 to 194. Despite Republican control, the Senate failed to take action. The bill had been referred to the Senate Judiciary Committee, chaired by Sen. Orrin Hatch, who had earlier opposed the Helms legislation limiting court jurisdiction over school prayer. If Hostettler’s legislation had been enacted in 2004, the case of United States v. Windsor, 133 Sup. Ct. 2675 (2013), striking down sec. 3 of DOMA as unconstitutional by 5-to-4 vote, would likely never have been decided.

In Federalist No. 78 (1788) Alexander Hamilton reckoned the judiciary the “least dangerous” and “weakest” branch of the federal government. Unlike the executive or legislative branches, the judiciary, he noted, lacked the sword and the purse. He thought that while “individual oppression” may proceed from courts, danger to the “general liberty of the people” exceeded the judicial power.

Brilliant though he was, Hamilton failed to see what might happen when most of the checks and balances applicable to the judiciary under the Constitution were allowed to lie dormant for half a century and more. He overlooked the dangers that an extra- constitutional ethos might grow up, encouraged by the Court’s own extravagant jurisprudence, holding that the constitutional text and the Court’s interpretations are functionally equivalent, and thus irreformable except by the Court itself.

Moreover, it is certain that the original and later constitutional framers never envisioned Supreme Court justices growing so arrogant as to engage in wholesale usurpations against customary state legislative powers. They surely never imagined that federal courts would turn the killing of an unborn son or daughter into a constitutionally protected right. But see Roe v. Wade, 410 U.S. 113 (1973). The framers did not dream that such courts would transform what was “the crime against nature,” homosexual sodomy, into protected behavior. But see Lawrence v. Texas, 539 U.S. 558 (2003). And nothing the framers included in the Constitution contemplates a right for the oxymoronic concept of same-sex marriage, yet lower courts have forced this unnatural relationship upon the states and upended millennia of civilizing law.

Despite what they may not have foreseen, Ben Franklin and other constitutional drafters did leave us the tools of self-government, more than ample to stop judicial hubris and

14 other legal chicanery. Thus we have the means to preserve our republic and its historic values. Do we have the will?

______

Thomas J. Ashcraft is a lawyer in Charlotte, North Carolina. He served on the legislative staff of U.S. Senator Jesse Helms in the 1980s and as U.S. Attorney for the Western District of North Carolina, 1987-93. Email him at [email protected].

15 Building the Resistance to Same Sex Marriage (twelfth in a series of articles)

The Congressional Appropriations Power and Same-Sex “Marriage” By Virginia Delegate Robert G. Marshall; June 24, 2015

If the U.S. Supreme Court rules that states must recognize so-called same-sex “marriage” does that mean that proponents of real marriage have only the remedy of a Constitutional Amendment to block the effects of such a decision? No! While some men and women of good will have claimed that an amendment to the federal Constitution is the only remedy available, they have not thought through the problems associated with such a strategy. History demonstrates that this strategy is only rarely successful. Only four Supreme Court decisions have ever been reversed by Constitutional Amendment since 1789. Moreover, Liberals, and faux conservatives who duck social issues, would love to send grassroots conservatives on a futile, wild goose chase in a multi-year pursuit of a Marriage Amendment to the U.S. Constitution. There is another way. Congress can immediately take action on a strategy to block the Obama Administration’s implementation of the Court’s decision through the use of riders to appropriations bills which will come before Congress this summer and fall. Suggested by James Madison, both liberals and conservatives have successfully used this strategy to change public policy over the past 50 years. This approach is constitutional. It can be set in motion within days, if not on the very day of a Supreme Court decision, should the anomaly of same-sex “marriages” be blessed by the highest court in the land. And, if pursued by defenders of real marriage, this approach will require every 2016 congressional and presidential candidate to take a position on marriage. The Appropriations power of Congress can and must be used to block implementation of unlawful rulings by out-of-control federal judges. Members of Congress would simply attach amendments to pending Appropriations bills later this summer to prevent the Obama Administration from implementing any pro-same sex marriage decision. Does Congress have this power? Yes! The Constitution provides, that, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” Art. 1, Sect. 9. James Madison noted, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Federalist 58. Every Appropriations bill consists of page after page of limitations, conditions, or prohibitions on how our federal tax dollars may be spent, if spent at all. Such money prohibitions which changed history include:

 The Vietnam War ended with the 1975 cut off of American military aid;

16  Medicaid funding of abortion on demand was banned via the Hyde Amendment in 1976;  Funds to assist anti-communists seeking to overthrow the Communist government in Angola in 1975-76 were prohibited;  The implementation of a published IRS ruling under President Jimmy Carter which compelled private, predominantly Christian schools to prove they were not discriminating on the basis of race in order to keep their tax-exempt status in 1979 was blocked by an Appropriations Amendment from former Congressman Robert Dornan (R-CA); and  Tax funds to assist Contra rebel groups to overthrow the Nicaraguan government were blocked in 1982.

Some may question if it is “constitutional” to prohibit spending money to implement same-sex “marriage” if the Supreme Court finds that the Constitution requires recognition of same-sex “marriage.” President Andrew Jackson answered that question in his 1832 veto message of the National Banking bill where he noted, “[t]he authority of the Supreme Court must not … be permitted to control the Congress or the Executive when acting in their legislative capacities.” President Jackson's Veto Message Regarding the Bank of the United States; July 10, 1832. If the Supreme Court twists the Fourteenth Amendment, enacted after the shedding of blood of over a half a million Americans for equal rights for black Americans, into a mandate for same-sex “marriage,” the decision must be challenged immediately and effectively. Many millions of Americans who voted to support and adhere to the millennia old consensus on marriage must question the authority and judgment of the Court if it wrongly applies the Constitution, while arrogantly charging that Americans who disagree with them are bigoted and hateful. Past Justices did not always claim such sweeping infallibility. Referring to past controversial decisions of the Supreme Court, Chief Justice Earl Warren (1953-1969) commented in 1962 on the World War II Japanese internment cases, that, “… the fact that the Court rules in a case like, Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.” Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 193 (1962), Reprinted in, The Air Force Law Review, Vol. 60, 2007, pp 16-17.

Providentially, I was involved in the initiation of (i) the successful Hyde Amendment relating to abortion, and (ii) the Dornan Appropriations Amendment blocking Jimmy Carter’s efforts to put private schools under the thumb of the IRS, on pain of losing their tax-exempt status. The stories of these two efforts is instructive as to the power that Congress has to fix such problems. In the Spring of 1976, a friend provided me with the results of a FOIA request showing the Department of Health Education and Welfare (now HHS) had paid for roughly 300,000 Medicaid abortions. As a private citizen, I went to the U.S. Capitol and requested a Page to have Representative Bob Bauman (R-MD) come off the House Floor and meet me at the Cloakroom door. (Bauman and I were both active in the Young

17 Americans for Freedom many years earlier.) I showed Congressman Bauman the FOIA documents and suggested that an amendment to the HEW Appropriations Act prohibiting the use of federal tax money for abortion would be in order. He said he knew a freshman Congressman who might be willing to offer the amendment cutting off all funding for elective abortions. That first term member of Congress turned out to be Representative Henry Hyde (R-IL). The abortion funding restriction -- widely known as the Hyde Amendment -- has passed Congress every year since 1976. As a legislative assistant to Congressman Dornan, I worked with the late Jack Clayton of the National Association of Evangelical Schools to devise an amendment to protect private schools by adding a rider to a Treasury appropriations bill prohibiting the use of any federal money to implement the IRS Ruling which had compelled mostly Christian schools to jump through bureaucratic hoops to demonstrate they were not discriminating to the satisfaction of a hostile IRS in order to keep their tax exempt status. This was not a partisan effort. Indeed, I worked with Missouri Democratic Senator Eagleton’s staff as Lutheran Missouri Synod church schools were particularly burdened by the IRS Ruling. Senator Eagleton made sure that the Senate approved the House-passed Dornan Amendment. That Amendment became part of the Treasury Appropriations bill and was signed into law, stopping the IRS crusade against Christian schools. In April, 1980, in Harris vs. McRae, the U.S. Supreme Court upheld as constitutional the Hyde Appropriations Amendment banning taxpayer paid abortions. In 1981, during a break in a Conference Committee meeting held in the Capitol building, I was conferring with my boss, Mr. Dornan, when liberal New York Democrat Congressman Charlie Rangel, who supported legal abortion and abortion funding, came over to talk with us about that decision. Rangel told us that Congress could never give up the "power of the purse." He said, "You know, we differ on abortion. But if the Supreme Court had said that they were going to tell us how to spend our (i.e., taxpayer) money, I would have put in court-stripping bills faster than you could!" I remember Rangel pressing his finger on Dornan’s chest as he spoke, in a firm but friendly manner. The appropriations amendments which will be required to blunt the effect of a Supreme Court decision mandating recognition of same-sex marriage must prohibit the use of monies or fees administered by an executive agency, judicial agency or court, or presidential executive order, directive or guideline or similar agency action to implement any aspect of the ruling in the Supreme Court marriage case, Obergefell v. Hodges, to prevent the following:

 Removing the tax exempt status of any church, institution, university, school or non-profit entity declining to facilitate or participate in same-sex “marriage:”  Requiring any federal contractor or grantee to accommodate same-sex “marriage;”  Disciplining or fining any person who declines to participate in a same-sex “marriage;”  Requiring federal employees to undergo sexual attitude restructuring education to ensure their acceptance or accommodation of same-sex “marriage;”

18  Withholding any federal grant or contract money to any state, territory or possession declining to implement same-sex “marriage” in schools or other agencies of state government;  Withholding federal money from any state, territory or possession which does not change state, etc. legal codes to accommodate same-sex “marriage.”  Allowing federal courts to hear challenges to any state or federal law affirming that marriage is only a relationship between one man and one woman. (See Article III Power to Curb Federal Court Jurisdiction.)

An appropriations bill is much easier to pass than a normal bill. Because funding bills are necessary to keep the government open, they must be considered and passed yearly. Other bills can be buried in committee, but appropriations bills cannot be ignored. If our Republican House of Representatives and our Republican Senate place an appropriations rider on all spending bills stating “no funds appropriated hereunder may be used to implement the decision of the U.S. Supreme Court in Obergefell,” it would not undo or reverse a Supreme Court same-sex “marriage” decision. However, it would make Obergefell a decision that was never enforced at the federal level. If Congress wanted to get creative, and send a message to a Supreme Court that had usurped Congress’ and the states’ role to decide policy, it could also consider an appropriations amendment to limit the number of clerks assigned to each Supreme Court Justice to a single clerk. If the Justices have so much time on their hands that they can attempt to defy the laws of Nature and Nature’s God, they may become more circumspect in crusading for the liberal agenda. (I actually had such an amendment drafted for Congressman Dornan while the Harris v. McRae case was pending. Had the Hyde Amendment been declared unconstitutional by the U.S. Supreme Court, Congressman Dornan intended to offer that amendment.) It is most crucial that citizens upholding one man, one woman marriage make it immediately clear that they expect their Members of Congress to support anti-same-sex marriage appropriations riders, and to secure record votes to show the public how they voted on the specific question. To avoid taking a stand with a recorded vote, Members of Congress might try to lump all the appropriations bills into one “Continuing Resolution.” (A continuing resolution is a measure which generally funds the entire federal government in one appropriations bill utilizing spending conditions from previous years but with different spending amounts.) Should the Republican leadership decline to take separate votes on individual appropriations bills to protect marriage, then the leadership should be removed for abandoning their stated policy beliefs as contained in the 2012 Republican Platform: “The union of one man and one woman must be upheld as the national standard.” In April, 2013, the leaders of thirteen social conservative organizations wrote to Republican National Chairman Reince Priebus challenging the conclusions of a RNC report which concluded that the Reagan Coalition embracing social issue conservatives was a political relic and should be abandoned. The conservative leaders told Priebus,

19 “We respectfully warn GOP leadership that an abandonment of its principles will necessarily result in the abandonment of our constituents ….” Incumbent Members of Congress who fail to amend appropriations bills to protect natural marriage need to face primary opponents who will amend appropriations bills. We must ensure that protection of marriage becomes a necessary condition for receiving our votes in the 2016 elections and beyond. No Congressman or Senator should be given a pass or be excused if they claim that the House or Senate Rules prevent record votes. There are procedures to ensure record votes are taken. For example, in the House, only 25 members are needed to call for a record vote on an amendment to an appropriations bill. The risk of permanent damage to individuals, our institutions, and our nation is too great to allow those who represent “We the People” to duck accountability for defending marriage as it has been understood for millennia. Failure on our part to demand that our representatives use all legal powers they have, means we are giving up the fight, which would make us partially responsible for the evils that will ensue. ______Virginia Delegate Robert G. (“Bob”) Marshall is a senior member of the Virginia House of Delegates, currently serving his 12th term. First elected in 1991, he has consistently addressed a wide range of policy concerns including fiscal, social as well as civil liberty issues. Marshall is the co-author of the 2006 voter-approved traditional Marriage Amendment to the Constitution of Virginia. He is also the author of 2012 statute preventing Virginia from assisting the federal government in the arrest and detention of American citizens without trial, presentment of charges or representation by counsel of alleged violations of federal security laws, and the author of a 2015 law requiring Virginia law enforcement to secure a warrant to track cell phone or computer identification and location data. Marshall has been married to his wife Cathy for 39 years, and have five children, and five grandchildren. He can be reached at [email protected]. This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.